Sudesh Kumari Vs. State of H.P. and ors. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.kuldip singh, j.1. the original application (m) no. 313 of 1997 was filed in himachal pradesh administrative tribunal, which has been abolished and cases of tribunal have been transferred to this court under himachal pradesh administrative tribunal (transfer of decided and pending cases and applications) act, 2008. after transfer o.a.(m) no. 313 of 1997 has been registered in this court as cwp (t) no. 4197 of 2008. the petitioner in the petition has prayed a direction to the respondents no. 1 and 2 to appoint her as part time water carrier in whether reporters of local papers may be allowed to see the judgment?yes government primary school, chejji and the appointment order of respondent no. 3 dated 5.8.1997 annexure p-1 may be quashed.2. the pleaded case of the petitioner is that she has qualification upto 5th. the petitioner got her name registered at employment exchange, sarkaghat for the post of part time water carrier. the petitioner was engaged by the p.t.a. of government primary school, chejji as part time water carrier on 23.1.1994 and since then she has been working as part time water carrier in govt. primary school, chejji. the petitioner was interviewed by respondents no. 1, 2 for the post of part time water carrier but she was surprised that respondent no. 3 vide office order dated 5.8.1997 annexure p-1 appointed respondent no. 3 as part time water carrier, ignoring the claim of the petitioner. the villagers and petitioner had made representation to deputy commissioner on 24.8.1997 against the appointment of respondent no. 3 but without any positive result.3. the appointment of respondent no. 3 vide annexure p-1 has been made in violation of government instruction dated 30.12.1996 and, therefore, impugned office order is liable to be quashed and the petitioner is entitled to be appointed as part time water carrier. the petitioner has been working as part time water carrier on volunteer basis since 23.1.1994. the petitioner is a widow and belongs to irdp family and is also of the same village whereas the respondent no. 3 belongs to lahasni which is quite away from school. no family member of the petitioner is in government or semi-government service. therefore, the petitioner has prayed for quashing of the impugned office order.4. the respondents no. 1 and 2 have contested the petition by filing reply in which they have made preliminary submissions that the petition is totally wrong and misconceived. the selection of respondent no. 3 as part time water carrier has been made on the basis of the recommendation of the selection committee as provided in annexure r-1 dated 9.1.1997. on merits, it has been pleaded that the petitioner and respondent no. 3 had obtained equal marks but respondent no. 3 was appointed after taking into consideration that he is senior in age.5. on 29.6.1999 the petition was allowed by the erstwhile tribunal and appointment of respondent no. 3 was quashed with a direction to re-engage the petitioner. the decision dated 29.6.1999 was assailed in cwp no. 301 of 1999 which was allowed on 4.4.2000 and the order dated 29.6.1999 of the erstwhile tribunal was set-aside. the case was remitted to the tribunal to decide the petition afresh.6. the respondent no. 3 after remand filed reply and contested the petition. in preliminary submissions, it has been pleaded that selection of respondent no. 3 vide office order dated 5.8.1997 is wholly in consonance with the relevant scheme. the respondent no. 3 is having 60% disability and he belongs to irdp category. there was tie between the petitioner and respondent no. 3 in the marks and therefore, respondent no. 3 was appointed being older in age as per government policy. the earlier engagement of petitioner by p.t.a. cannot dilute the policy of the government as provided in annexure r-3/5. the petitioner has filed rejoinder to the reply of the respondent no. 3 and has placed on record annexure p-9 clarification dated 19.8.1997 regarding appointment of part time water carrier issued by the director of primary education, himachal pradesh. the erstwhile tribunal in the meantime was abolished and cases of tribunal were transferred to high court.7. the petitioner belongs to irdp as per certificate dated 3.2.1997 annexure p-3 issued by the block development officer, development block, dharampur. the petitioner is a widow as per the certificate dated 3.9.1997 annexure p-4 issued by the president, gram panchayat. annexure p-4 further indicates that the petitioner had worked as part time water carrier in government primary school, chejji on the request of the p.t.a. committee and the villagers from 23.1.1994 to 16.7. 1997 without any remuneration. annexure p-6 is the certificate issued by the headmaster, govt. primary school, chejji on 16.7.1997 that petitioner has worked as volunteer water carrier w.e.f. 23.1.1994 to 16.7.1997 on the recommendation of p.t.a. and villagers in govt. primary school, chejji. annexure p-7 is the representation of the villagers against the appointment of the respondent no. 3. annexure p-8 is the distance certificate showing the distance of the house of the petitioner.8. the case of the respondents is that the petitioner and respondent no. 3 scored identical marks but keeping in view the instructions of the government, the respondent no. 3 was selected as part time water carrier as he was senior in age. on the contrary, the contention of the learned counsel for the petitioner is that the petitioner has been working as part time water carrier continuously since 23.1.1994 on the recommendations of the p.t.a. of government primary school, chejji without any remuneration. the learned counsel for the petitioner has further submitted that in view of clarification dated 19.8.1997 annexure p-9, the petitioner has preferential right of appointment as part time water carrier on the ground that the petitioner has been working as part time water carrier in govt. primary school, chejji without any remuneration on the recommendations of the p.t.a. of government primary school, chaji.9. the fact that petitioner has been working as part time water carrier in govt. primary school, chejji on the recommendations of the p.t.a. of govt. primary school, chejji since 23.1.1994 continuously without any remuneration, has not been specifically denied by the respondents. the clarification dated 19.8.1997 issued by the director of primary education, himachal pradesh provides that the part time water carriers appointed before 31.3.1996 by the parent teachers association or local panchayat on honorarium basis prior to 31.3.1996 and continuing to work as such shall be deemed to be appointed as part time water carrier under the scheme w.e.f. 6.7.1996. only scrutiny in their cases is to verify whether they are working prior to 31.3.1996 and continuing as such. it has further been provided that if the above said condition is satisfied then they are deemed to be appointed as per the scheme and their services is to be continued in that schools.10. the clarification dated 19.8.1997 has not introduced a new scheme or new eligibility. the clarification has only clarified the existing scheme. therefore, the case of the petitioner is fully covered by clarification dated 19.8.1997. the petitioner has been working as part time water carrier in govt. primary school, chejji since 23.1.1994 on the recommendations of the parent teachers association of govt. primary school, chejji without any remuneration. therefore, the petitioner shall be deemed to have been appointed as part time water carrier in govt. primary school, chejji and continued to be appointed as such. the respondent no. 3 in these circumstances cannot take the benefit of letter dated 31.3.1997 annexure r-3/5 which provides that in case of equality of marks the senior most in age may be selected as part time water carrier.11. the petitioner has made out a case, the appointment of respondent no. 3 as part time water carrier in govt. primary school, chejji vide office order dated 5.8.1997 annexure p-1 is quashed. the petitioner shall be deemed to have been appointed as part time water carrier in govt. primary school, chejji as provided in clarification dated 19.8.1997 annexure p-9 with all consequential benefits.