Himachal Pradesh High Court
Karnail Singh & Others vs State Of Himachal Pradesh & Others on 15 June, 2023
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao, Ajay Mohan Goel
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No.125 of 2022
Decided on: 15.06.2023
Karnail Singh & others .... Appellants.
Versus
State of Himachal Pradesh & others .... Respondents.
Coram
The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? 1
For the appellants : Mr. Vijender Katoch, Advocate.
For the respondents: Mr. Anup Rattan, Advocate General, with
M/s Navlesh Verma, Pranay Pratap Singh,
Additional Advocate Generals and M/s
Gautam Sood, Arsh Rattan, Deputy Advocate
Generals, for respondent No.1.
Ms. Shubh Mahajan, Advocate, for respondent
No.2.
None for remaining respondents.
M.S. Ramachandra Rao, Chief Justice (Oral)
This Letters Patent Appeal is preferred by the appellants herein, assailing order dt. 29.09.2021 in CWPOA No.2531 of 2019.
2. The respondent- Himachal Road Transport Corporation advertised certain posts of Transport Multipurpose Assistants through an 1 Whether reporters of the local papers may be allowed to see the judgment?
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advertisement dt. 03.08.2017, which were later increased to 1300 through a corrigendum.
3. The advertisement and the corrigendum specified the category-wise number of the vacancies and mentioned amongst others the ex-servicemen category only. The appellants, who are wards of ex-
servicemen also filled the form claiming to be falling under the category of ex-servicemen, and they were even permitted to participate in the selection process and also kept in the select list of 1235 after document verification.
4. Since their names did not figure in the final selection list, they approached Himachal Pradesh Administrative Tribunal by filing O.A. no. 3649 of 2018 and O.A. no. 3460 of 2018.
5. The said original applications were then transferred to this Court and re-registered as CWPOA no.2531 of 2019 and CWPOA no.4655 of 2020.
6. In these matters, the appellants sought a direction to the respondents to consider their case for appointment as Transport Multiple Purpose Assistants in the ex-servicemen category.
7. The Corporation filed a reply contending that though the appellants had participated in the selection process, since the posts were reserved only for ex-servicemen and not for the wards of ex-servicemen, their candidature cannot be considered against the post reserved for ex-
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servicemen.
8. After hearing both the parties, learned Single Judge dismissed the claim of the appellants.
9. Learned Single Judge held that at no point of time, posts, if any, were advertised for "wards of ex-servicemen" and as per the advertisement, the posts were kept vacant only for the category of "ex-servicemen"; once posts were not reserved for "wards of ex-
servicemen" there is no occasion for the respondent-Corporation to entertain the application filed by the appellants, who are the "wards" of ex-servicemen and permit them to participate in the selection process.
10. Learned Single Judge also rejected the plea on the part of the appellants that as per a communication dated 09.06.2014 issued by the Office of Principal Secretary (Personnel) to the Government of Himachal Pradesh when ex-servicemen were not available to fill vacancies earmarked for the said candidates, those posts were to be carried forward and filled up from amongst the wards of ex-servicemen.
11. Learned Single Judge held that when the posts were never advertised for the category of "wards of ex-servicemen", they have no right to claim any appointment by way of right to the said category of ex-servicemen. He also held that if ex-servicemen were not available for appointment against the posts kept for them, any reservation for wards of ::: Downloaded on - 19/06/2023 20:31:18 :::CIS 4 .
ex-servicemen should be with prior concurrence with Ex-servicemen Cell of Himachal Pradesh.
12. Assailing the same, this appeal is filed.
13. Learned counsel for the appellants seeks to contend that there was a past practice to appoint dependents such as sons, daughters and wives of ex-servicemen in vacancies earmarked for ex-servicemen and such past practice creates a right in favour of the appellants herein to get appointed to the vacancies earmarked for ex-servicemen.
14. He also placed reliance on a Notification dated 15.09.2010 issued by the Deputy Secretary (Personnel) to the Government of Himachal Pradesh.
15. Said Notification states that no dependents wards i.e. sons, daughters and wives of ex-servicemen, who have also been rehabilitated in Central/ other State/Union Territories Government/ Public Sector undertakings/ Autonomous bodies/Banks etc., will be considered for appointment on a post reserved for ex-servicemen in case no suitable ex-servicemen was available.
16. Learned counsel for the State however supports the order of learned Single Judge and contends that when there were no vacancies earmarked for wards of ex-servicemen and the vacancies were only earmarked for ex-servicemen, no right accrues to the appellants who are ::: Downloaded on - 19/06/2023 20:31:18 :::CIS 5 .
wards of ex-servicemen, to be considered against the said vacancies.
17. We have perused the advertisement (Annexure A-3) as well as its corrigendum (Annexure A-4) which only indicate that vacancies were earmarked inter alia for "ex-servicemen". There were no vacancies earmarked for "wards" of ex-servicemen. Therefore, the appellants who are wards of the ex-servicemen cannot claim to be considered against the said vacancies earmarked for ex-servicemen for being appointed thereto.
Merely because in the past such practice has been followed, cannot create any right in favour of the appellants to insist that the same benefit be granted to them as well.
18. In our opinion, mere relationship of a candidate with an ex-servicemen as son or daughter or wife cannot confer any right on a candidate to get employment to the post earmarked for ex-servicemen since such provision would violate the mandate of Article 16 (2) of the Constitution of India which prohibits either preference or discrimination on the basis of descent. (See: Gazura Dasaratha Rama Rao Versus The State of Andhra Pradesh & others... AIR 1961 SC 564)
19. Article 14 of the Constitution of India cannot be invoked to perpetuate an illegality which is alleged to have happened in the past by allowing the wards of ex-servicemen to be appointed against vacancies earmarked for ex-servicemen.
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20. Therefore, we find no merit in the present appeal which is accordingly dismissed.
21. Pending application(s), if any, also stands disposed of.
(M.S. Ramachandra Rao)
Chief Justice
(Ajay Mohan Goel)
r Judge
June 15, 2023
(rishi)
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