IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 3371/2019 a/w CWP Nos.
1864, 1995, 2020, 2096, 2100, 2103
to 2106, 3558, 3579, 3712, 38 P 54 &.3867/2019
.
Reserved on: 3.11.2020 Decided on : 12.11.20 20 H
1. CWP No. 3371/2019 f
Robin Singh Mehta & ors.
o
…..PetitionersVersus State of H.P. and ors.
rt ….Respondents
2. CWP No. 1864/2019
Opender Sharma & ors. ou
…..PetitionersVersusState of H.P. and C ors. ….Respondents 3. CWP No. 199 5/2019Pushpende h r Kumar …..PetitionerVersusState of H.P. and ors. ….Respondents
4. i CW g P No. 2020/2019Vipin Kumar …..Petitioner H
Versus State of H.P. and ors. ….Respondents 5. CWP No. 2096/2019Rajesh Kumar …..PetitionerVersus State of H.P. and ors. ….Respondents
6. CWP No. 2100/2019
Manoj Kumar …..Petitioner Versus
State of H.P. and ors. ….Respondents
1
2
.
7. CWP No. 2103/2019
Vinod Kumar …..Petitio P ner Versus
.
State of H.P. and ors. ….Respondents
8. CWP No. 2104/2019 H
Dharmender Singh
f …..PetitionerVersus State of H.P. and ors.
o ….Respondents
9. CWP No. 2105/2019
Anita Devi
rt …..PetitionerVersus State of H.P. and ors.
u
….Respondents
10. CWP No. 2106/2019
Urmila Devi
Co
…..Petitioner VersusState of H.P. and ors. ….Respondents
11. CWP No. 3558/2019
Ritam g bhar h a Sharma & anr. …..Petitioners i
VersusState of H.P. and ors. ….Respondents
H 12. CWP No. 3579/2019 Happy Thakur & ors. …..PetitionersVersusState of H.P. and ors. ….Respondents
13. CWP No. 3712/2019
Puneet Kashyap & ors. …..Petitioners Versus
State of H.P. and ors. ….Respondents
3
14. CWP No. 3854/2019
.
Versus State of H.P. and ors. ….Respon . de P nts
15. CWP No. 3867/2019
Dinesh & ors.
f … H ..PetitionersVersusState of H.P. and ors.
o ….Respondents Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Ms. Justice Jyotsna r Rtewal Dua, Judge.Whether approved for reporting? 1 Yes For the Petitioner:
o M u r. Yogesh Kumar Chandel & Mr.Dinesh K. Thakur, Advocates, for therespective petitioners. For the Respon de C nts: Mr. Ajay Vaidya, Senior AdditionalAdvocate General, for the h
respondent-State.Mr. Sanjeev Kumar Motta and Mr.Angrez Kapoor, Advocates, for
ig
respondent-HPSSC.Mr. Neel Kamal Sharma, Advocate,for respondent-HPU. H
Mr. Dalip K. Sharma, Advocate, for respondent-HP Para Medical Council, Shimla. Dr. Lalit K. Sharma, Advocate, forrespondents No.7 and 8 in CWPNo.3371, 1864, 3712, 3867/2019, respondents No.6 and 7 in CWP No.
3558/2019 and respondents No.8
and 9 in CWP No. 3579/2019.
Mr. Surender Sharma, Advocate, for
respondent-Technical Education
Board.
(Through Video Conferencing)
1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
4
Justice Tarlok Singh Chauhan, Judge
.
Since all these petitions relate to the selecti . on P and appointment to the posts of Radiographers, therefore, the same were taken up together for hearing and are be f ing dHisposed of bycommon judgment.
2 These cases have a chequ t ere d h o istory. 3 For the sake of conven r ience and in order to maintain clarity, facts of CWP No. 3371 u /2019 are being referred to.
4 The H.P. Staff Selection Commissioner, Hamirpur (for short, the Com C missioon), in September 2017 issued anadvertisement f or filling-up 154 posts of Radiographers, wherein essential h educational qualification prescribed was as per the
Rec i ru g itment and Promotion Rules i.e. (a) (i) 10+2 pass in Science H from a recognized Board of School Education/University (ii) Diploma in Radiology from an institution recognized by the Central/HP Government or B.Sc. Degree in Radiology from a recognized University; b) must be registered with H.P. Para
Medical Council, Shimla.
5 In July 2018, the Commission conducted direct evaluation process for these advertised posts of Radiographers.
5
6 Thereafter, on 15.12.2018, the Commission declared .
the result, wherein two candidates Beli Ram and Y P ogita Chauhan, respondents No. 7 and 8 in CWP No. 3371/201 . 9 were selected, whereas candidatures of the petitioners w H ere rejected by the Commission, which compelled the f p etitioners and similarly situated persons to challenge th o e rejection order before the erstwhile H.P Administrative Trib t un al by filing various O.As. These original applications w u ere l r isted in the month of December2018 and the learned T o ribunal passed interim directions holdingthe petitioners to be eligible for the post in question and directed their results to be C prepared by the Commission. 7
h All these petitions were eventually disposed of videcomm g on order dated 22.5.2019 by directing the StateGo i vernment to constitute a committee of experts to examine
H equivalence of theacademic/technical qualifications possessed by the petitioners and recognition thereof and the Commission,was directed to proceed with the matter in light of the report of the committee of experts.
8 The State, in turn, vide notification dated 16.8.2019 constituted an expert committee as was directed. The expert committee had conveyed its report dated 25.9.2019 holding the
6
degrees possessed by the petitioners to be valid for the purpose of .
recruitment/appointment and such findings have a . tta P inedfinality. However, since the State failed to act even H on the basisof the expert committee, the petitioners were constrained to approach this Court by filing instant petitions. f
9 The claims raised in all th o ese petitions can becategorized in three broad categor r ies t .10 In the first ca u tegory, all the petitioners(exceptpetitioner No.16) in CWP o No. 3371/2019, petitioner(s) in CWP No.1864/19, 1995/19, 2104/19, 2105/19, petitioner No.2 in CWP No. 3558/19, p et C itioners No. 2, 3, 5, 7, 8 and 11 in CWP No.3579/19, h petitioners No.2 and 3 in CWP No. 3867/19, standappoi g nted during the pendency of these petitions and now theonl i y subsisting and surviving claim in their cases is with regard
H to their seniority. 11In the second category, petitioner No.16 in CWP No.3371/2019, petitioners in CWP No. 1864/19, 2105/19, petitioners No. 2, 3, 5, 7, 8 and 11 in CWP No. 3579/19 though
were considered, but could not find place in the final selection
list because of limited seats, however on the basis of overall merit
7
they succeeded to find place in the waiting list and have thus .
been kept in waiting panel.
P
12 In the third category, petitioners in CW . P No. 2104/2019 and petitioners No. 2 &3 in CWP No. 386 H 7/19 did not fulfill the eligibility criteria for want of es f se ntial education qualification or their names had not bee o n registered with H.P. Para Medical Council, Shimla on th t e la st date of submission of online recruitment application form r (s).
13 As regards f o irst c u ategory, as observed above, there isno dispute with regard to their eligibility and educational qualification an d C the only question relates to determination theirseniority.
14
ghIt is more than settled that if a candidate has beenwro i n ly excluded from the process of the appointment on
H account of illegal and arbitrary action on behalf ofthe State, then he is entitled to notional seniority from the date, thesimilarly situated persons have been appointed. Reference in this regard can conveniently be made to a recent judgment of the
Hon'ble Supreme Court in C. Jayachandran vs. State of Kerala
and ors., (2020) 5 SCC 230, wherein it was observed as under:-
8
35. The earlier writ petition filed by the appellant was allowed on 13 th September, 2010. The Division Bench of.
the High Court has directed to re-cast the sen P iority amongst the seven shortlisted candidates. The a . ppellant was one of them. The challenge to the sa id H order by threeaffected candidates remained unsucce f ssful when SLP wasdismissed by this Court on 8 th October, 2010. The SLP was filed by the candidates w ho o were granted benefit ofmoderation of marks. Once t the direction of the DivisionBench has attained fina r lity, the appellant was entitled toseniority as per th u e select list to be revised as per merit ofthe candidates. In terms of Rule 6(2), the seniority is to bedetermined o by the serial order in which the nameappeared in the appointment order. The argument of learn ed C counsel appearing for respondent No. 5 that theappellant was not appointed by the same appointment h order, therefore, the appellant cannot claim seniority is g
not tenable. The appellant was entitled to be appointed i
along with other three candidates but because of theaction of the High Court in adopting moderation of marks,
H the appellant was excluded from appointment. The exclusion of appellant from appointment was on account of an illegal act by the High Court which has been sofound by the judgment dated 13th September, 2010. Since the select list has to be revised, the appellant would be
deemed to be the part of the appointment along with other
candidates in the same select list. As the actual date of
appointment was on 24 th February, 2011, the appellant
cannot actually be treated to be appointed on 30 th
9
March, 2009 but is entitled to notional appointment from that date and consequential seniority. .
36. In Sanjay Dhar, a three-Judge Bench of thi . s C P ourtheld as under:
"16. For the foregoing reasons the appeal i H s allowed. The judgment under appeal is set aside. It f is directed that theappellant shall be deemed to ha o ve been appointed alongwith other appointees under the appointment order dated6-3-1995 and assigned r a t place of seniority consistentlywith his placement in the order of merit in the select listprepared by J&K u PSC and later forwarded to the LawDepartment…"
37. In Laks o hmana Rao Yadavalli, this Court held as under:
h"13. Fo
Cr the reasons recorded in Lakshmana Rao Yadavalli
v. State of A.P., the present appeals are allowed and it is
g
directed that the High Court as well as the respondent i
State will do theneedful forgiving appointment to theH
appellant with retrospective effect i.e. from the date on which she ought to have been appointed, however, she shall not be paid salary for the period during which shehas not worked as a District and Sessions Judge. We aresure that the respondents will do the needful for the appointment of the appellant at an early date."
15 This otherwise has been consistent view of this Court in Balak Ram vs. State of H.P., 2015(1) SLC 504, Poonam Kumari vs. State of H.P. & anr., 2015(4) HP LR 827 and
10
Monica Sharma vs. Dr. Y. S. Parmar University of . Horticulture and Forestry, Nauni & ors., 2015(5) ILR HP . 4 P 91. 16 Accordingly, the claims of the petitio H ners in firstcategory are allowed and consequently, these peti tioners are held entitled for grant of seniority from the date f when respondents
No. 7 and 8 Beli Ram and Yogita C t ha uh o an were appointed i.e.15.12.2018.
17 Adverting to the seconrd category, we may notice that it has come on record o in the u letter of Director Health Services tothe Additional Ch C ief Secretary (Health) dated 28.8.18 that as perthe total cadre strength of 283 Radiographers only 91 are in position.
18 hig
As per advertisement, 154 posts of Radiographerswere advertised, whereas as per the result notifications, dated
H 15.12.2018 and 19.6.2020, the respondent-Commission declared result against 115 posts, against which only 87candidates were selected, i.e. 2 candidates as per result notification dated 15.12.2018 and 85 vide result notification
dated 19.6.2020. In this manner, as many as 67 posts are still
vacant.
11
19 There is no reason whatsoever given as to why the .
requisition of posts advertised was withdrawn vide letter d P ated 16.12.2018, relevant portion whereof reads as under:
.
"I have the honour to submit that the r H equisitions for filling up the post of Radiographers w f ere sent your goodoffices vide this Directorate requisition letter No.Swa- Ni(1)Kh(2)27/91 dated 2 0. o 08.2015, 15.07.2016,03.10.2016 (photocopie r s a t ttached) may be treated aswithdrawn & recommends the names of eligiblecandidate as per u requisition letter dated 01.05.2017 &31.08.2017 (p o hotocopies attached).You are, therefore, requested to kindly recommend thenames C of eligible Radiographers as per requisition dated01.0 5.2017 & 31.08.2018."
20
h The only explanation offered by the respondent-State for i w g ithdrawing these posts is contained in para 13 of its reply, H relevant portion whereof reads as under:- "13. …......It is added that after taking into consideration the vacancies of Radiographers against the total cadrestrength as also the approval of the Government to fill up the vacancies, necessary clarification with regard to the
number of vacancies to be filled up was made by the
respondent department with all the recruitment agencies
concerned including the respondent No.4 to recommend
the names of eligible Radiographers as per requisitions
dated 1.5.2017 and 31.8.2018. Hence, the withdrawal of
some vacancies, if any, did not substantiate any
12
inadmissible claim of the petitioners in any way and manner, more particularly, when they were not found.
eligible to be considered as per the provisions of the P then existing and prevailing R&P Rules dated 15.11.201 . 6 in the light of the clarification given to it in the matter and further when still 113 posts remained uHnfilled/vacant with the respondent No.4 for want of f eligible candidates as per the then existing and prevailing R &P Rules, after completion of the earlier sel t ect iono process."
21 The aforesaid exp u lana r tion leads us nowhere as it isnot the case of the State that these petitioners had not qualified and were not in the o zone of consideration. Rather, it has
specifically com e C on record that these petitioners have been keptin waiting panel only because of limited seats.
22
gh Therefore, in such circumstances, the issue arises forcon i sideration is that whether the respondent-State could have
H withdrawn the requisition without giving any cogent reasons for the same.23 This issue has been considered by the Hon'ble Supreme Court in several cases.
24 In Miss Neelima Shangla v. State of Haryana and Others, (1986) 4 SCC 268, the Hon'ble Supreme Court observed that it is always open to the Government not to fill up all the
13
vacancies for a valid reason, but the selection cannot arbitrarily .
be restricted to a few candidates, notwithstanding the num . b P er ofvacancies and the availability of qualified candidates.
25 The ratio laid down in this judgmen f t w as H affirmed byConstitution Bench of the Hon'ble Supreme Court in
Shankarsan Dash vs. Union of India, 19 o 91 (3) SCC 47, wherein it was held that if a number r of t va cancies are notified forappointment and adequate u number of candidates are found fit,still the successful cand o idates acquire an indefeasible right to beappointed. Accord C ing to the Hon'ble Supreme Court, notificationmerely amount s to an invitation to qualified candidates to applyfor recruit h ment and on their selection they do not acquire anyrigh i t g to the post. Unless the relevant recruitment rules soindicate, the State is under no legal duty to fill up all or any of
H the vacancies. However, the Hon'ble Supreme Court also stated that it does not mean that the State has the licence of acting inan arbitrary manner and the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. It was
declared that if the vacancies or any of them are filled up, the
State is bound to respect the comparative merit of the
14
candidates, as reflected at the recruitment test, and no .
discrimination can be permitted.
P
26 In Mrs. Asha Kaul vs. State of J H amm . u andKashmir, 1993 SCC (2) 573, the Hon'ble Supre me Court again reiterated that mere inclusion in the select li f st does not confer
upon the candidates included therein an o indefeasible right to
appointment. The Hon'ble Supre r me t Co urt also stated that thereis obligation of the Govern u ment to act fairly and the wholeexercise cannot be reduced to a mere farce. It was further observed that ha C ving s o ent a requisition/request to the PublicService Commis sion to select a particular number of candidatesfor a partic h ular category in pursuance of which the commissioniss i ue g s a notification, holds a written test, conductsinterviews, prepares a select list and then communicates to
Hthe Government, the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell thecandidates when they complain that they have no legal right to appointment.
27 In view of the aforesaid exposition of law, it can legitimately be concluded that even though the selected candidate has no vested right in the qualifying examination for
15
getting appointed against the posts advertised/notified, yet the .
State cannot withdraw the seats arbitrarily without there b P eing any bona fide or appropriate reasons and the selection . cannot arbitrarily be restricted to a few candidates, notwith H standing the number of vacancies and the availability of qua f lifi ed candidates.
28 Discussion in this regard wo ul o d be incomplete in casewe do not take note of the re r cen t t judgment of the Hon'bleSupreme Court in Dinesh K u uma Kashyap and ors. Vs. SouthEast Central Railway and ors. (2019) 12 SCC 798.
29 In this C caseo the facts were - respondent No.1, SouthEast Central Railway (for short the SECR) issued an advertisem h ent on 15.12.2010 inviting applications for filling up
57 i 98 g posts in the pay scale of Rs.5200-Rs. 20,200 + Grade Pay H of Rs.1800/ in Raipur, Bilaspur and Nagpur divisions and workshops. The claim of the original writ petitioners who filed applications before the Central Administrative Tribunal (for shortCAT) was that as per the existing instructions the select list was prepared with 20% extra candidates. Therefore, the result of
6995 candidates was declared who were successful. The
appellants fell in the category of extra 20%. The SECR did not
make the appointments from these 20% extra candidates though
16
624 posts remained unfilled in the general category itself. The .
appellants who fell in the 20% category of extra candidates P filed applications before the CAT praying that the SECR be dire . cted to fill in the unfilled vacancies from this list of 20% can H didates. This application was rejected by the Tribunal. Allowi f ng the appeal, the Hon'ble Supreme Court observed as under o :-
5. The main issue which aris es before us is whether the SECR could have ignore r d thte 20% extra panel despite theletter dated 02.07. u 2008 without giving any cogent reasonfor the same o . No doubt, it is true, that mere selectiondoes not give any vested right to the selected candidate tobe app C ointed. At the same time when a large number ofpost s are lying vacant and selection process has been h followed then the employer must satisfy the court as towhy it did not resort to and appoint the selected
ig
candidates, even if they are from the replacement panel. Just because discretion isvested in theauthority, itH
does not mean that this discretion can be exercised arbitrarily. No doubt, it is not incumbent upon the employer to fill all the posts but it must give reasons andsatisfy the court that it had some grounds for not appointing the candidates who found place in the
replacement panel. In this behalf we may make
reference to the judgment of this Court in R.S. Mittal vs.
Union of India (UOI)1, wherein it was held as follows: 1
(1995) Suppl.2 SCC 230
17
10. .....It is no doubt correct that a person on the select- panel has no vested right to be appointed to the post for.
which he has been selected. He has a right t P o be considered for appointment. But at the same ti . me, the appointing authority cannot ignore the s H elect-panel ordecline to make the appointment on f its whims. When aperson has been selected by the Selection Board and there is a vacancy which can be offe re o d to him, keeping in viewhis merit position, then t , ordinarily, there is nojustification to ignore h r im for appointment. There has tobe a justifiable rea u son to decline to appoint a person whois on the select-panel. In the present case, there has beena mere inacti o on on the part of the Government. No reasonwhatsoever, not to talk of a justifiable reason, was given as t o C why the appointments were not offered to thecandidates expeditiously and in accordance with law. The h appointment should have been offered to Mr. Murgod g
within a reasonable time of availability of the vacancy and i
thereafter to the next candidate. The CentralGovernment's approach in this case was wholly
H
unjustified. 6. Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law. When anemployer invites applications for filling up a large number of posts, a large number of unemployed youth apply for
the same. They spend time in filling the form and pay
the application fees. Thereafter, they spend time to
prepare for the examination. They spend time and money
to travel to the place where written test is held. If they
qualify the written test they have to again travel to
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appear for the interview and medical examination etc. Those who are successful and declared to be passed.
have a reasonable expectation that they wi P ll be appointed. No doubt, as pointed out above, this . is not a vested right. However, the State m us H t give somejustifiable, non-arbitrary reason for not filling up the post. When the employer is the State f it is bound to act
according to Article 14 of the Constitution. It cannot
without any rhyme or reason d ecoide not to fill up the post.
It must give some plau r sib t le reason for not filling up the posts. The cour u ts would normally not question thejustification but the justification must be reasonable andshould not o be an arbitrary, capricious or whimsicalexercise of discretion vested in the State. It is in the light of the C se principles that we need to examine thecontentions of the SECR.
30
gh Judged in light of the aforesaid exposition of law andas i observed above, it would be noticed that the respondent-State
19
the date when respondents No. 7 and 8 Beli Ram and Yogita .
Chauhan were appointed i.e. 15.12.2018.
P
32 Adverting to the third category, co H mpris.ing ofpetitioners in CWP No. 2104/2019 and petitione rs No. 2 &3 in CWP No. 3867/19, we find that these pet o itione f rs did not possessthe requisite essential educational q ualification as per the Recruitment and Promotion Rule r s a t nd had not been registeredwith H.P. Para Medical Council, Shimla on the last date of submission of online recruiutment application form. Thus, their
claims are not at all suostainable and have therefore rightly been
rejected.
C
33
h Having said so, all these petitions are disposed of in the i a g foresaid terms, so also the pending application(s), if any, H leaving the parties to bear their own costs. (Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua)
12.11.2020 Judge
(pankaj)
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