Prem Lata vs. Maya Devi

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Ajay Mohan Goel, Judge (Oral)

By way of this appeal, appellant has challenged the judgment passed by learned Single Judge in CWP (T) No. 7780 of 2008, dated 29.04.2011, vide which, learned Single Judge, while allowing the writ petition so filed by the petitioners therein, quashed the appointment of the present appellant as Part Time Water Carrier who was so appointed under para 12 of the Part Time Water Carrier Scheme

¹ Whether reporters of the local papers may be allowed to see the judgment?

ignoring the selection process which already stood undertaken for filling up the post in issue in the year 1999.

2. We have heard learned Counsel for the parties and gone through the records of the case. It is not in dispute that despite process having been initiated by State for appointment of Part Time Water Carrier in the year 1999, pursuant to which interviews were also held in January, 1999, appellant stood appointed as Part Time Water Carrier in Government Primary School, Bekradi in the year 2002 under para 12 of the Part Time Water Carrier Scheme, which appointment of her stands quashed by the learned Single Judge by holding that once selection process had been put into motion, then appointment had to be made on the basis of result of selection and no candidate could be appointed by invoking the provisions of para 12 of the Part Time Water Carrier Scheme on compassionate grounds.

3. During the course of arguments, learned Additional Advocate General submitted that Rule 12 of the Rules which deals with compassionate ground for appointment as Part Time Water Carrier has been held to be ultra vires by the Hon'ble Division Bench of this Court in Mangla Devi Vs. State of H.P. and Ors., CWP No. 7498 of

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2014, decided on 15th of May, 2015 and though the said judgment has been assailed before the Hon'ble Supreme Court, however, the operation of the same has not been stayed by the Hon'ble Supreme Court.

4. Thus, as of now, the Clause/para of the scheme under which the present appellant stood appointed has been held to be ultra vires of the Constitution of India. Besides this, even otherwise, there is no infirmity with the findings returned by the learned Single Judge in the judgment impugned because once the process for filling up the post had been put into motion, then obviously, there was no occasion for the State to have had offered appointment to the appellant under para 12 of the Part Time Water Carrier Scheme.

5. Accordingly, as there is no merit in the present appeal, the same is dismissed. The State shall be at liberty to fill up the post afresh by initiating process in accordance with law as per the scheme in vogue. Appellant, if eligible, shall be at liberty to participate in the fresh selection process and in case she does participate in the selection process, then State may take into consideration her past experience. In case the appellant is still continuing in job, then she shall be permitted to continue as such till fresh appointment is made.

The appeal is accordingly dismissed, so also pending miscellaneous application(s), if any. No orders as to costs.

(Sanjay Karol) Acting Chief Justice

(Ajay Mohan Goel) Judge

July 25, 2017. (narender)