Rajender Singh vs State of H.P. and Others

Rajiv Sharma, J.—Petitioner is working as Lecturer (Economics) in Education Department. He availed study leave while serving as Lecturer (Economics) in Senior Secondary School, Lalpani in 2006. The joining of the Petitioner at Government Senior Secondary School, Domehar lead to termination of the services of Respondent No. 3 Kavita Sharma, who was working as Lecturer on P.T.A. basis. She approached this Court by way of C.W.P. No. 8106 of 2010. The same was disposed of by this Court on 20.12.2010 with a direction to Respondent No. 2 to examine her case in the light of the judgment rendered in C.W.P. No. 6240 of 2010, titled Nitasha v. State of H.P. and Ors. decided on 23.11.2010 and to take appropriate action within a period of four weeks. Thereafter, the Director of Education passed an order on 16th February, 2011, whereby the Petitioner was transferred to Government Senior Secondary School, Dharogra, District Shimla and Respondent No. 3 was allowed to rejoin and continue at Government Senior Secondary School, Domehar (Kandaghat), District Solan.Petitioner has assailed this office order dated 16th February, 2011 (Annexure P-2).

Mr. Sanjeev Bhushan, learned Counsel for the Petitioner has strenuously argued that the action of Respondent No. 2 to permit Respondent No. 3 to rejoin and continue at Government Senior Secondary School, Domehar (Kandaghat), District Solan is illegal, discriminatory, unjustifiable and, thus, violative of Articles 14 and 16 of the Constitution of India. According to him, the person appointed on P.T.A. basis could not be given preference over and above the persons like the Petitioner, who is appointed on regular basis. He then argued that the petition filed by Respondent No. 3 bearing C.W.P. No. 8106 of 2010 was belated since her services were terminated on 18.11.2008.

Mr. Vikas Rathore, learned Deputy Advocate General has supported the order dated 16th February, 2011.

Ms. Archana Dutt, learned Counsel for Respondent No. 3 has also supported the order dated 16th February, 2011. According to her, her client was relieved on 18.11.2010 and not on 18.11.2008. She then argued that the Petitioner had filed an application before the Respondent No. 2 on 20.06.2011, seeking his adjustment at Government Senior Secondary School, Bychari (Shimla).

I have heard the learned Counsel for the parties and gone through the pleadings carefully.

It is not in dispute that the Petitioner has been appointed as Lecturer (School Cadre) in the subject of Economics on regular basis. He has proceeded on study leave from Government Senior Secondary School, Lalpani. He was adjusted at Government Senior Secondary School, Domehar, District Solan after he availed the study leave vide order dated 17.11.2008. He joined his duties at Government Senior Secondary School, Domehar, District Solan. It is apparent from Annexure P-1, dated 17.11.2008 that Respondent No. 3 was replaced by the Petitioner on the basis of the judgment rendered by this Court in C.W.P. No. 1163 of 2007, whereby the teachers appointed by the Parents Teacher Association could be replaced by regularly appointed teachers or regular teachers on transfer. Though Ms. Archana Dutt, learned Counsel for Respondent No. 3 has argued that her client was relieved on 18.11.2010, but it is evident from Annexure R-3 that she was relieved on 18.11.2008. Respondent No. 3 has filed a false affidavit. In view of this, the writ petition bearing C.W.P. No. 8106 of 2010 filed by Respondent No. 3 was barred by delay and laches. Respondent No. 4 was not heard at the time when the order was passed by this Court on 20.12.2010, which lead to the issuance of impugned order Annexure P-2, dated 16.02.2011. The teachers are appointed by the Parents Teacher Association as per Education Code, but the P.T.A. makes appointments to the posts of teachers when there is shortage of staff in the institution as a temporary measure as per paragraph No. 2.33.1 of the Education Code. In the instant case, the Petitioner was appointed on regular basis and has joined his duties at Government Senior Secondary School, Domehar, District Solan on 17.11.2008 and has not completed his normal tenure of three years. The person appointed by the Parents Teacher Association cannot be given preferential treatment over the person, who has been appointed on regular basis. The appointment by the Parents Teacher Association is a purely temporary arrangement, that too, by an institution, which is not statutory in nature, i.e. P.T.A.

Ms. Archana Dutt, learned Counsel for Respondent No. 3 has argued that the Petitioner has remained posted in and around Shimla. This plea could only be considered if the Respondent No. 3 had been appointed on regular basis in Government employment.

Now, as far as the letter written by the Petitioner to Respondent No. 2 dated 20.6.2010 is concerned, suffice it to say that it is always open to an employee to make a representation to get the station of his choice.

The action of Respondent No. 2 to give preference to Respondent No. 3 over a regularly appointed incumbent was arbitrary and against all the canons of service jurisprudence. A regularly appointed person enjoys status as per Constitution and statutory rules, which are not available to a person appointed as a temporary measure, that too, by the Parents Teacher Association.

Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure P-2 dated 16.02.2011 is quashed and set aside. The Respondents No. 1 and 2 are directed to permit the Petitioner to continue at the present place of posting, i.e., Government Senior Secondary School, Domehar, District Solan. The pending application(s), if any, also stands disposed of. No costs.