Reena Kanwar vs State of H.P. and Others

Deepak Gupta, J.—This writ petition exemplifies how the same officer of the Government passes contradictory orders which lead to unnecessary litigation whereby public time and money is wasted.

The brief facts of the case are that the Petitioner who is a widow and falls below the poverty line applied for appointment as Part Time Water Carrier in Government Primary School, Dhakriana, Tehsil Kasauli, District Solan, H.P. As per the latest notification dated 9.9.2009, Rule 12 empowers the Government to appoint any candidate as Part Time Water Carrier on compassionate grounds without following the selection process. The said Rule reads as follows:

The Government will have the power to appoint any candidate as Part Time Water Carrier on compassionate grounds without following the selection process if the candidate is below the poverty line or has a low income certificate issued by the Naib Tehsildar, Tehsildar, SDO(C) or Executive Magistrate of the concerned area and if the candidates is a:

i. widow; or

ii. woman deserted by her husband or otherwise destitute; or

iii. a handicapped person; or

iv. an orphan.

It is tthat under this Rule only widows, women deserted by their husbands or otherwise destitute, handicapped persons or orphans can be appointed and the second rider is that such person must either falls below the poverty line or should have a low income certificate. The scheme as such does not stipulate what is the low income postulated under the scheme. My attention has been drawn to another notification of the Government issued in March, 2008. As per this notification, those families whose income is more than ` 2500/- per month would not fall within the BPL category.

The Respondent No. 3 is a physically handicapped person having 60% locomotor disability and he also applied for appointment as Part Time Water Carrier in the very same school. Vide note dated 21.5.2010, the Additional Secretary to the Chief Minister conveyed the approval of the Hon''ble Chief Minister for appointment of the Respondent No. 3 as Part Time Water Carrier in the school in question. Surprisingly on the next day itself, i.e., 22.5.2010, the very same officer issued another note conveying the approval of Hon''ble Chief Minister for appointment of Reena Kanwar, Petitioner as Part Time Water Carrier in the same school. These two contradictory orders have led to the filing of the present petition.

The stand of the State now is that since orders in favour of Respondent No. 3 were passed earlier, the orders passed in favour of the present Petitioner were deemed to be cancelled but till date no order has been placed on record to show that there is any formal order of cancellation of the order dated 22.5.2010 passed in favour of the Petitioner.

Sh. Deepak Gupta, learned Counsel for the Petitioner submits that there is no material on record to show that the Respondent No. 3 falls below the poverty line.

He relies upon the Jamabandis filed by him alongwith the rejoinder which show that the father of the Respondent No. 3 is owner in possession of more than 23 bighas of land. Sh. Gupta also relies upon a certificate according to which the father of the Respondent No. 3 is working as a Resin Contractor. He, therefore, submits that the Respondent No. 3 is ineligible for appointment under Rule 12. He further submits that the nature of the work of a Part Time Water Carrier is such that a person with 60% locomotor disability would be unable to carry out this work.

All these are highly disputed questions of fact which cannot be decided in writ proceedings. No doubt, Rule 12 gives power to the Government to make appointment to the post of Part Time Water Carrier without following the selection process, but in case where there is more than one applicant who has applied for appointment under Rule 12 then in my considered view, the State Government is duty bound to see who is the more meritorious candidate. Article 14 of the Constitution of India provides that every citizen of this country is entitled to equal treatment under the law. If two or more candidates eligible under Rule 12 apply for the post of Part Time Water Carrier then the Government though it may not follow the regular process of appointment must see the respective merits of the candidates and select the most deserving candidate amongst themselves.

I have however, no doubt in my mind that if the Hon''ble Chief Minister had been apprised that there were two applicants for the same post, he may or may not have taken the same decision. Approval on each noting has been obtained without apprising the Hon''ble Chief Minister about the fact that there was another applicant applying under Rule 12 for the same post. Therefore, I feel that the Additional Secretary to the Chief Minister should after placing all appropriate facts before the Hon''ble Chief Minister obtain fresh orders in this behalf. Needful be done within one month from today.

Needless to say that any party aggrieved by the order passed shall have the right to file writ petition.

The petition is disposed of in the aforesaid terms. No order as to costs.