Mohar Singh vs District Collector and Others

Amitava Roy, C.J.—Heard Mr. T.C. Sharma, learned counsel for the appellant/writ petitioner and Mr. Ganesh Meena, learned Additional Advocate General and Mr. Sanjay Mehla for the respondents. The instant appeal has been preferred against the judgment and order dated 2.2.2005 passed in S.B. Civil Writ Petition No. 4137/2004 instituted by the appellant/writ petitioner, thereby dismissing the same.

The appellant''s/writ petitioner''s pleaded case in short is that on his selection, he was appointed as Para Teacher on a consolidated pay of Rs. 1200/- per month in terms of the Notification No. F.139(5) Gravip/Shiksha/99/723 dated 23.4.1999. According to him, he was selected in the Village Gram Sabha meeting of Gram Panchayat Birol under Panchayat Samiti, Nawalgarh held on 1.5.1999. He was eventually posted in that capacity at Rajiv Gandhi Swarna Jayanti Pathshala at Gunana Johar, Ward No. 5, Birol. The appellant/writ petitioner alleged that at the relevant time, one Shri Jai Singh Choudhary was the Sarpanch of Gram Panchayat, Birol, who desired his wife Smt. Nirmala Devi, respondent No. 4 to be selected as Para Teacher of the said school and with that design, he interpolated the records of gram sabha and made her stake a claim for such appointment, whereafter an enquiry followed. The appellant/writ petitioner has stated that the Block Development Officer, Panchayat Samiti, Nawalgarh in his preliminary enquiry report dated 25.6.1999 clearly indicated that the respondent No. 4 was not present in the gram sabha meeting held on 1.5.1999, and thus, in terms of the notification dated 23.4.1999 laying down the norms for appointment as Para Teacher, she was not eligible to be appointed as such. Inspite thereof, the husband of respondent No. 4 continued with his efforts to oust the appellant/writ petitioner, and eventually, by order dated 8.6.2004 issued by the Office of the Gram Panchayat, Birol, Panchayat Samiti Nawalgarh, she (respondent No. 4) was appointed in his place. The appellant/writ petitioner however, has asserted that at no point of time, any order terminating his services was passed. He was also not paid remuneration for the services rendered by him. He thus approached this Court seeking annulment of the order dated 8.6.2004, and for a declaration that he was continuing in service. A direction for payment of his entitlements was also sought for. The learned Single Judge, by the impugned order, has declined to interfere.

Mr. Sharma has urged that in terms of the notification dated 23.4.1999, the appellant/writ petitioner having been found to be most suitable for the post, was appointed as such and as the respondent No. 4 at all relevant times had not offered her candidature, she was not eligible therefor. The learned counsel has urged that as the process leading to the appointment of the respondent No. 4 is a handiwork of her husband, the impugned order dated 8.6.2004 ought to have been set aside by the learned Single Judge with consequential direction for release of his entitlements by declaring him to be continuing in service.

Mr. Meena on the other hand, with reference to the letter dated 20.5.2004 (Annexure-9 to the writ petition), has urged by placing reliance on the order dated 5.3.2004 alluded to therein that the appointment of respondent No. 4 had followed after due enquiry and on a decision on the representation submitted by her pursuant to the direction issued by this Court in S.B. Civil Writ Petition No. 2966/1999. In this regard, he also placed reliance on the order dated 26.8.2002 rendered in the aforementioned writ proceeding.

The learned counsel for the appellant/writ petitioner against this has urged that as he (appellant/writ petitioner) was neither made party in the said writ petition nor was afforded any opportunity of participation in the so called enquiry or in the exercise pertaining to the representation, the order dated 5.3.2004 being per se violative of the principles of natural justice could not have formed the foundation of the order impugned.

We have examined the pleaded facts and the documents on record. We have also duly considered the rival submissions.

A copy of the order dated 5.3.2004 referred to in the communication dated 20.5.2004, following which, the impugned order dated 8.6.2004 has been produced in course of the arguments. A perusal thereof would indicate that in view of the order passed in S.B. Civil Writ Petition No. 2966/1999, a representation had been submitted by the respondent No. 4 on the issue. According to the respondent No. 4, the selection committee on 1.5.1999 had selected her, but the then Development Officer, Panchayat Samiti, Nawalgarh forwarded the name of the appellant/writ petitioner, though there was no application on his behalf for his appointment. She also claimed that following her selection, the same was approved by the Gram Panchayat, Birol in its meeting held on 7.6.1999. The order reveals that the District Collector, Jhunjhunu, who disposed of the representation, did take into account, amongst others, the report of the selection committee to the effect that in terms of the relevant notification, the gram sabha in its meeting held on 1.5.1999 did approve the establishment of Rajiv Gandhi Swarna Jayanti Pathshala at Ward No. 5, Gunana Johar. A panel of para teachers was also prepared in which three names i.e. Smt. Nirmala, Shri Prabhu Dayal and Shri Manoj Kumar, were included. That there was no other name figuring in the list, was mentioned. The order dated 5.3.2004 further reveals that in terms of preference Smt. Nirmala Devi, respondent No. 4 was selected, but the Panchayat Samit, Nawalgarh without obtaining the said recommendation, at its level approved the appointment of the appellant/writ petitioner. According to the District Collector, Jhunjhunu, the Additional Chief Executive Officer, Zila Parishad, Jhunjhunu in an enquiry made on the issue, also concluded that the appointment of the appellant/writ petitioner as para teacher had been illegal as there was no recommendation therefor by the gram sabha. That the respondent No. 4 is a resident of Birol, and that, she belongs to OBC community and is an educated woman candidate, has been recorded. The District Collector, Jhunjhunu has also mentioned that the relevant ward is reserved for an OBC candidate. That the respondent No. 4 is academically superior to the other candidates, who had applied, has been mentioned as well. The District Collector, Jhunjhunu therefore, disposed of the representation of the respondent No. 4 in her favour holding that she, in all respects, was suitable to be appointed as Para Teacher.

The findings contained in the order dated 5.3.2004 detailed hereinabove are demonstrably based on contemporaneous records, and thus, the plea of want of opportunity raised on behalf of the appellant/writ petitioner does not weigh with us. The impugned order dated 8.6.2004 is clearly based on the communication dated 20.5.2004 of the District Collector, Jhunjhunu, referring to the order dated 5.3.2004 which, to reiterate, records in details the reasons endorsing the candidature of the respondent No. 4 for appointment as Para Teacher in the ward concerned. There is nothing on record to discard the findings recorded in the order 5.3.2004 to be either incorrect or motivated.

In the above view of the matter, we do not find any convincing or cogent reason to interfere with the impugned judgment and order. The appeal lacks in merit and is dismissed.