Savitri Devi vs State Of Himachal Pradesh And Ors

Sandeep Sharma, J

Being aggrieved with appointment of respondent No.5 as Part-Time Water Carrier in Govt. Primary School Bhapral, Tehsil Ghumarwin, District Bilaspur, H.P., petitioner initially approached Erstwhile HP State Administrative Tribunal by way of OA No. 820 of 2007, praying therein for following main reliefs:

"a. to appoint the applicant as part time water carrier in the Govt. School Bhapral District Bilaspur, H.P.

b. to restrain the respondent No. 5 from performing the duties of water carrier as his appointment is illegal, arbitrary and against the principles of natural justice." However, aforesaid OA, after abolishment of the Tribunal, stands transferred to this Court for adjudication.

Precisely, the grouse of the petitioner is that respondents No. 1 to 4 have wrongly appointed respondent No.5 as Part-Time Water Carrier at Govt. Primary School Bhapral, Tehsil Ghumarwin, District Bilaspur, H.P., ignoring her candidature. Petitioner's claim is that since she belongs to the same village, in which the vacancy of Part- Time Water Carrier had fallen vacant on account of death of her husband, who was working against the post in question in the same school since 1.5.2003 to 10.5.2006, she has preferential right to be appointed as Part Time Water Carrier in the school in question. Besides above, allegation of the petitioner is that respondents No.1 to 4 while appointing respondent No.5 against the post in question miserably failed to take note of the financial condition of respondent No.5, who has sufficient means to sustain himself as well as his family, whereas petitioner, who belongs to IRDP/BPL family is in dire need of employment after the death of her husband. Bare perusal of reply filed by the respondent reveals that respondents have tried to justify the appointment of respondent No.5 on the ground that his appointment to the post in question was made under Rule 12 of Scheme of the appointment of Water Carriers, which empowers the government to appoint any candidate as Part Time Water Carrier on compassionate grounds without following due procedure, especially in those cases where candidates are widow, woman deserted by her husband or otherwise destitute, handicapped persons and candidate, who is below the poverty line as defined by the Rural Development Department from time to time.

Having heard learned counsel for the parties and perused material available on record, this Court finds that it is not in dispute inter-se parties that respondent No.5 came to be appointed as Part Time Water Carrier in Govt. Primary School Bhapral, Tehsil Ghumarwin, District Bilaspur, H.P., under Rule 12 of the Scheme of appointment of Water Carriers by the respondent-department vide letter dated 4.8.2011 on the basis of "first come first serve" policy. Though petitioner herein had also made prayer to the competent authority to give her appointment as Water Carrier in the school in question while exercising power under the aforesaid Rule, but her such request was not acceded to on the ground that appointment stands given to respondent No.5 on the basis of "first come first serve" policy and at present, there is no vacancy at Govt. Primary School Bhapral.

Parties are ad-idem that Rule-12 of the Scheme as referred herein above stands declared ultra-vires by Division Bench of this Court in judgment dated 15.5.2015 in CWP No.7498 of 2014 titled Mangla Devi v. State of HP and Ors, wherein it has been held that Rule-12 is militative of the constitutional tenets of equality of opportunity in public employment and as such, cannot be allowed to sustain. It would be apt to take note of the following paras of the aforesaid judgment:-

"Rule 12 Compassionate Grounds Appointment. 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 candidates are widow, woman deserted by her husband or otherwise destitute, handicapped persons and if the candidate falls below the poverty line as defined by the Rural Development Department from time to time."

The rule extracted hereinabove empowers the Government to, while departing from the selection process appoint an aspirant/probable candidate as a Water Carrier in the school concerned in case it is found that the aspirant is a widow, woman deserted by her husband or otherwise destitute, handicapped person and if the candidate falls below the poverty line as defined by the Rural Development Department from time to time. The respondent No.6 is satiating the requirement of the apposite category whereunder he came to be selected and appointed. Moreover, the appointment of respondent No. 6 is concerted to be foisted with validity on the score of hence, when the respondent No.6 in consonance thereto having applied for the post concerned earlier than the petitioner herein, besides his having come to be selected, appointed and his having joined earlier, to the application of the petitioner having come to be subjected to scrutiny, concomitantly an assiduous effort was made on the part of the respondents that the petitioner hence having not contemporaneously alongwith respondent No.6 applied for the post of Part Time Water Carrier in the Government Primary School, Barota, Tehsil Indora, District Kangra, H.P. at which stage the respondent No.6 was found fit and suitable within the parameters of any of the enshrined categories apposite to him, therefore, the challenge, if any, made by the petitioner to the selection and appointment of respondent No.6, is, shaky as well as legally unsound, especially, when hence there was no occasion to assess or consider the interse comparative merits of the petitioner and respondent No.6.

The legal sinew and tenability of Rule 12 empowering the State Government to depart from, besides make short shrift of the selection process has to be tested on the touchstone of the constitutional tenets of equality of opportunity in public employment, enshrined in Articles 14 and 16 of the Constitution of India. In case the mandate encapsulated in Rule 12 empowering the Government to benumb, derogate or depart from the selection process is found constitutionally unsound, then the mere factum of the selection committee concerned having been constrained by the petitioner not applying contemporaneously alongwith respondent No. 6 for the post concerned to assess their inter se comparative merits, leaving them with no option than to appoint the petitioner, would also not acquire any strength or vigour. The departure from the selection process enunciated in Rule 12 extracted above is perse, antithetical besides militative of the constitutional tenets of equality of opportunity in public employment. Even when the Government proceeds to appoint any person, aspirant or probable candidate to the post of part time water carrier in the school concerned, no short shrift besides departure from the constitutional tenets equality of opportunity in public employment, is, reverable. Especially when irreverence to the constitutional tenets of equality of opportunity in public employment is not only impermissible, rather is interdicted. The rule obviously with its omitting to mandate therein that when the Government proceeds to marshal the provisions of Rule 12, extracted hereinabove, empowering it to make short shrift of the selection process, while making selection and appointment of any aspirant to the post of part time water carrier in pursuance to an application initiated by him, though suitable, besides fulfilling the enshrined parameters, that no widely circulated advertisement preceding the exercise of the power at the instance of the Government is at all necessary, infringes the constitutional tenets of equality of opportunity in public employment. Only in the event of the widest publicity, emanating from the vacancies having been advertised, preceding the initiation of selection and appointment of any aspirant to the post of water carrier, for eliciting applications from all who satiate and fulfill the enshrined parameters for rendering their candidature to be considered suitable for employment, would the selection and consequent appointment of respondent No.6 stand validated. For reiteration, wide publicity qua the occurrence of vacancy is an indispensable sine qua non for sanctifying the selection and appointment of an aspirant to the post of part time water carrier in the school concerned. However, no material exists on record to portray that preceding the initiation of selection and consequent appointment of respondent No.6 to the post of part time water carrier the appropriate authority had advertised the vacancy. Omission in the above regard has to be deprecated and frowned upon by this Court.

With the widest publicity to the occurrence of a vacancy having been initiated by the Government prior, to its initiating the mechanism for selecting and appointing a suitable candidate to the post, would have facilitated the participation of the largest number of candidates, besides would have also facilitated the selection committee concerned to dispassionately assess the comparative merits and suitability of all the aspirants/probable candidates to the post concerned. However, with a postulation in the aforesaid rule qua wide publicity through advertisement qua the occurrence of a vacancy being dispensable when an appointment under Rule 12 is proposed to be made, has necessarily constrained or precluded the applicant/petitioner to apply for it, alongwith respondent No.6 besides has deterred a dispassionate evaluation of her suitability as well as her fitness for selection and appointment to the post concerned alongwith the respondent No.6. It appears that the power vested in Rule 12 and with the enjoined mandate therein of a constitutionally unsound tenet of departure from selection process which rather has an inbuilt or embodied indispensable precursor of a wide publicity through advertisement qua the occurrence of vacancy, has been resorted to by the Government to arbitrarily and in a partisan manner select and appoint the respondent No.6 to the post of part time water carrier in prejudice and in derogation to the compatible rights of other aspirants. Consequently, the respondents No. 1 to 5 having untenably departed from the selection process by omitting to give wide publicity qua occurrence of vacancy of part time water carrier through advertisement for eliciting the participation of the petitioner alongwith other suitable candidates, rather theirs on receiving only the singular application of respondent No.6 having assessed his candidature unilaterally and declared him fit and suitable within the apposite and enshrined parameters of the apt category germane to him for his selection and appointment, have infringed the mandate of Articles 14 and 16 of the Constitution of India enshrining the solemn tenet of equality of opportunity in public employment.

In aftermath, Rule 12 cannot escape the application to it of the constitutional tenets of equality of opportunity to the public employment, rather it while prescribing departure from the selection process embodying the widest publicity being given to the occurrence of vacancies through advertisement for eliciting participation of the optimum number of suitable candidates/aspirants enabling the selection committee to adjudge their comparative merits is to be construed to be antithetical to it, as such necessitates its while it being in infraction thereof, besides being ultra vires, to the aforesaid tenets, its being struck down.

As a natural corollary, when Rule 12 is militative of the constitutional tenets of equality of opportunity in public employment, the mere fact of respondent No.6 having applied earlier than the petitioner for the post of part time water carrier and hence the respondent No.6 having also come to be selected/appointed and his having joined earlier than the petitioner's application having come to be evaluated and scrutinized for assessing her suitability for selection/appointment, does not give leverage to the respondent No. 6 to render his selection to be sacrosanct especially when the constitutional mandate enshrined in Articles 14 and 16 of the Constitution of India contemplating equality of opportunity in public employment stood infracted, comprised in the factum of the petitioner not, having been awakened by the issuance of an advertisement qua the occurrence of a vacancy of a part time water carrier when the respondent No.6 applied for it. Consequently, when no wide publicity was given to the occurrence of a vacancy of part time water carrier, hampered her to apply for it, in subterfuge of the constitutional tenets of equality of opportunity in public employment, whose infraction has begotten the striking down of Rule 12 by this Court inasmuch as it makes a departure from the selection process hence gives omnibus latitude to the Government to, besides empowers it to arbitrarily choose a singular aspirant hence renders such a selection and appointment to be liable for interference and its being quashed and set-aside."

It is also not in dispute that aforesaid judgment rendered by the Division Bench of this Court was laid challenge by way of SLP before the Hon'ble Apex Court, but same was dismissed and as such, judgment rendered by the Division Bench of this Court has attained finality. Since respondent No.6 came to be appointed as Part-Time Water Carrier in the Govt. Primary School Bhapral, under Rule 12 of the Scheme, his selection cannot be said to be in accordance with law and accordingly, deserves to be quashed.

Consequently, in view of the above, present petition is allowed and appointment of respondent No.5 is quashed and set-aside and respondents are directed to fill up the post in question afresh strictly in accordance with law within a period of six months. Needless to say, till the time fresh hand is appointed against the post in question, respondent No.5 would continue to render his services in the school. In the aforesaid terms, petition stands disposed of.