Sh. Som Dutt vs The State of Himachal Pradesh

Justice Sanjay Karol, J.

1.Petitioner has mainly prayed for the following reliefs:-

i) That the orders denying approval of appointment and rejecting the case on 7.8.2004 vide A-12 may

kindly be quashed and set aside.

ii) That the respondents No. 1 to 3 may be directed

to give approval of selection/appointment of the

applicant, who is working since 26.5.1998 vide

A-6 as part time Water Carrier in GHS Guler,

forthwith.Whether reports of Local Papers may be allowed to see the judgment?

iii). That the respondents may be directed to consider the case of the applicant for appointment/ regularization/ promotion from the post of part time Water carrier to the post of Class-IV employee, in secondary/High/Middle/Primary Schools as per policy and practice, forthwith.

iv). That the respondents may be directed to consider the case of the applicant for appointment/regularization/promotion as regular Class-IV i.e. juniors were appointed/promoted to such Class-IV posts, with all consequential benefits, forthwith.

It is not in dispute that Selection Committee was constituted for selecting the candidates for the post of a part time Water Carrier. Petitioner was selected and given appointment on 25.5.1998. He joined on 26.5.1998 and as such has been discharging his duties to the satisfaction of the authorities till date.

It appears that Selection Committee was not properly constituted in as much as in stead of two Principals and one Headmaster, there were two Headmasters and one Principal. Undisputedly, petitioner has got nothing to do with the constitution of this Committee. The Committee was constituted by the respondents themselves. Also, existence of the post is not in dispute. Similarly, eligibility of petitioner is not in dispute. Procedure for selection of the candidates was duly complied with, except to the extent noticed hereinabove. However, approval of petitioner''s appointment was turned down by the State in terms of

the impugned letter dated nil of 2004 (Annexure A-12), which reads as under:-

"OFFICE ORDER

The applicant Sh. Som Dutt has filed an Original Application No. (D)212/2001 before the Hon''ble HPAT for releasing his wages arrears w.e.f. 1-11-98 till may, 2001. Accordingly the above case of the applicant was listed before the HPAT when the same was disposed of with the direction to treat the O.A.No.(D)212/2001 as representation to the undersigned and decide the same within a period of two months after hearing the applicant.

In pursuance of the directions of the Hon''ble HPAT the applicant was called for person hearing on 27.7.2004 and he was heard in person. After going through the record of the case and other aspects of the case, I am of the opinion that Sh. Som Dutt, PTWC was neither appointed by the competent authority nor approval of the Govt. has been sought as per provision made in the recruitment policy of the Govt. for PTWC under rule-12. Moreover, there is total ban on any kind of recruitment of ministerial staff except IRDP candidates being appointed under rule-12 with the prior approval of the competent authority. Therefore, question does not rise to pay the wages @ Rs. 800/ month to the applicant and is also not administratively feasible to accede his request. Hence rejected.

Now, undisputedly petitioner has got nothing to do with the constitution of the Selection Committee. The Apex Court in 2010 (9) SCC 247 has held that irregularity, unlike illegality, can be rectified and is curable. Hence, question of constitution of valid Selection Committee, at such a belated stage, can not be permitted to be raised by the respondents.

With regard to the ban, it be only clarified that the same pertained to ministerial staff and that too with regard to candidates other than the one falling in the category of IRDP. The post in question is a part time Water Carrier, which is not covered under the ban from filling up the posts. Third objection is with regard to non approval of the Govt. under rule 12 of the Policy. Now, petitioner did not apply under the said Clause as he was not seeking appointment to the post in question on compassionate basis.

Consequently, petition needs to be allowed. The order of rejection dated 7.8.2004 (Annexure A-12) is quashed. Respondents are directed to consider the petitioner''s case for approval and conferment of benefits of seniority etc. from the date of initial appointment. All consequential actions shall follow within a period of three months from the date of receipt of certified copy of the judgment.

Pending application(s), if any, also stands disposed of.