Himachal Pradesh High Court
Harish Kumar vs Of on 30 May, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 9779 of 2012 .
Judgment reserved on : 27.5.2016 Date of decision: May 30, 2016.
Harish Kumar ...Petitioner.
Versus
of
State of H.P. and others ..Respondents.
Coram
rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes For the Petitioner : Mr. J. L. Bhardwaj, Advocate.
For the Respondents : Ms. Meenakshi Sharma, Addl. A.G. with Mr. J. S. Guleria, Asstt. Advocate General, for respondents No. 1 to 3.
Mr. Lokender Paul Thakur, Advocate, for respondent No. 5.
Tarlok Singh Chauhan, Judge This writ petition has been filed for the following reliefs:
(i) That the writ in the nature of certiorari may kindly be issued to quash the appointment of respondent No.5 as Part-Time Water Carrier made vide office order dated 12.03.2012 (Annexure P-14) issued by the respondent No.3 after summoning the entire record and justice be done.
(ii) That the writ in the nature of mandamus may kindly be issued directing the respondents No. 1 to 3 to consider the case of the petitioner on the basis of the recommendations made on 31.05.2011 by the respondent No.3 and thereafter offer him the appointment as Part-Time Water Carrier in 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 15/04/2017 20:29:23 :::HCHP 2 GPS Hatnali, Gram Panchayat, Palog (Manjhu), Tehsil Arki, District Solan, H.P. and justice be done."
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2. The petitioner in November, 2011 applied under Clause 12 of the Part-Time Water Carrier Scheme (for short 'Scheme') seeking appointment as Part Time Water Carrier in GPS, Hatnali in Gram Panchayat, Palog (Manjhu), Tehsil Arki, District of Solan, H.P. After receipt of the letter from the office of respondent No.2, the respondent No.3 issued an interview letter to the rt petitioner calling upon him to remain present in his office alongwith all testimonials on 25.5.2011. The petitioner accordingly presented himself and furnished the requisite certificates and was directed to produce the indigent certificate which was subsequently produced by him on 27.5.2011. The case of the petitioner was recommended by respondent No.3 vide letter dated 31.5.2011.
3. However, before the petitioner could actually be appointed, respondent No.2 vide his letter dated 20.12.2011 informed the respondent No.3 that the case of respondent No.5 had been approved under Clause 12 of the Scheme for appointment as Part Time Water Carrier. Respondent No.2 thereafter vide his letter dated 17.2.2012 directed the respondent No.3 to offer appointment to respondent No.5. The respondent No.3 on 12.3.2012 issued appointment letter in favour of respondent No.5 which has been assailed by the petitioner in this writ petition on the ground that the procedure adopted by respondents No. 1 to 3 in appointing respondent No.5 was totally ::: Downloaded on - 15/04/2017 20:29:23 :::HCHP 3 unknown to law and was the result of malafide action as also colourable exercise of power. The grounds have been elaborated in .
paras 10(a) to 10(e) of the petition.
4. Respondents No. 1 to 3 in their reply have raised preliminary submissions wherein the contents of the petition have not been refuted and only explanation offered is that since no of approval had been received from the Government for the appointment of the petitioner and whereas the name of respondent rt No.5 had been approved for appointment on 15.12.2011, therefore, the respondent No.5 was ordered to be appointed.
5. A separate reply has been filed by respondent No.5 wherein it has been stated that the replying respondent being fully eligible for appointment was rightly appointed to the post in question.
I have heard learned counsel for the parties and also gone through the records of the case carefully and meticulously.
6. At the outset, it may be pointed out that Clause 12 of the Scheme, 2011 has already been quashed by the learned Division Bench of this Court in CWP No. 7498 of 2014 in case titled Mangla Devi and others vs. State of Himachal Pradesh and others, decided on 15.5.2015. However, the matter is now pending before the Hon'ble Supreme Court in SLP (C) No. 25618 of 2015. Though, the Hon'ble Supreme Court has declined to go into the merits of the case, however, the SLP has been entertained with ::: Downloaded on - 15/04/2017 20:29:23 :::HCHP 4 respect to the validity of Rule 12 of the Scheme as would be evident from the order passed on 11.9.2015 which reads thus:
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"Upon hearing the counsel the Court made the following order:
Exemption from filing O.T. is allowed.
We are not inclined to entertain this petition except to the extent where the High Court has struck down Rule 12 of of Part Time Water Carrier Appointment Scheme - 2011 relating to appointment on compassionate ground.
Issue notice limited only to this extent."
7. rt Consequent upon the directions passed by this Court on 19.5.2016, the respondents have made available the records. It is evident from the record that the case of the petitioner for appointment under Clause 12 was processed on the basis of the recommendation of local MLA and placed before the then Hon'ble Chief Minister, who observed as under:
"Process."
The respondent No.2 had thereafter considered the eligibility of the petitioner and made recommendations for his appointment (as noted in the earlier part of the judgment). The record further reveals that the petitioner was found fully eligible and fulfilled all the criterias for being appointed on compassionate grounds in terms of Clause 12 of the Scheme, which reads thus:
"12. Compassionate Ground Appointments:
The Government will have the power to appoint any candidate as Part Time Water Carrier on compassionate ground without following the selection process if the candidates is below the Poverty Line or has a Low Income ::: Downloaded on - 15/04/2017 20:29:23 :::HCHP 5 Certificate issued by the Naib Tehsildar, SDO (C) or Executive Magistrate of the concerned area and if the candidates is a:-
(i) Widow, or .
(ii) Member of family living in extreme indigent conditions.
Family includes father, mother and their children. (This certificate will be issued not below the rank of SDO (C); or
(iii) Women deserted by the husband or otherwise destitute, or of
(iv) Handicapped persons; or
(v) An orphan."
8. On the other hand, respondent No.5 applied under rt Clause 12 of the Scheme vide his letter dated 13.12.2011 and the same was approved by the Hon'ble Chief Minister with the following observations:
"Shri Krishan Chand S/o late Shri Prem Chand, Village and P.O. Manjoo, Tehsil Arki, District Solan, may be appointed as Part-Time Water Carrier in GPS, Hatnali against vacancy under Rule 12, after complying with all codal formalities if in order. (Photocopy of application alongwith its enclosures enclosed herewith)."
9. In this background, the moot question that arises for consideration is whether the petitioner who had admittedly applied earlier and whose eligibility otherwise has not been questioned by any of the parties, atleast had if not anything more a right of consideration for appointment. Obviously, respondent No.5 on the strength of para 12 of the Scheme, would definitely contend that the Rule in fact does not envisage or provide for the selection process and, therefore, he has rightly been appointed.
::: Downloaded on - 15/04/2017 20:29:23 :::HCHP 610. Similar question came up before the Hon'ble Division .
Bench of this Court in Sheela Devi vs. State of H.P. and others 2010 (2) Shim. L.C. 61, wherein also the official respondents without considering the candidature of the petitioner (therein) had offered the appointment to the private respondent (therein) and of the same was quashed by observing as under:
"5. What emerges from the pleadings, as noticed above, is that the rt petitioner is also a widow. She has three school going children. Respondent No.6 is also a widow as per the contents of the reply.
The petitioner has submitted an application on 7.1.2002. However, the fact of the matter is that respondent No.6 was appointed as water carrier on 4.5.2002. We are of the considered view that since the petitioner and respondent No.6 were widows, their candidature was to be considered and more deserving out of two should have been appointed. Respondent No. 1 to 5 without considering the candidature of the petitioner vis-à-vis respondent No.6 have offered the post of part time water carrier to respondent No.6. We do not approve the manner in which the appointments are being made by invoking Rule 12 of the Scheme. We make it clear that henceforth the candidature of all the candidates who are eligible as per Rule 12 are to be considered and their list is to be prepared separately. It is not open to the State Government to pick up a particular candidate and to appoint him/her as water carrier without considering the cases of other candidates. There is a detailed procedure prescribed the manner in which the post is to be filled up.
6. A Division Bench of this Court in CWP No. 393 of 2001 titled Jasmati Devi vs. State of H.P. and others, decided on 14.8.2001 held as under:
"The contention of respondent No.4, is that she also belongs to IRDP category. Moreover, she is a widow. In this view of the matter, it was necessary for the authorities to consider the claim of respondent No.4 vis-à-vis the petitioner. Since it was not done, the order passed by the Government was not ::: Downloaded on - 15/04/2017 20:29:23 :::HCHP 7 according to law and the Tribunal cannot be said to have committed error of law or of jurisdiction which requires interference by this Court."
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7. Accordingly, the writ petition is allowed. The appointment of respondent No.6 made vide letter dated 4.5.2002 is quashed and set-aside. Respondents No. 1 to 5 are directed to redo the entire selection process and to consider the case of the petitioner and similarly situate persons for appointment to the post of water carrier in Government Primary School, Rangayan within a period of of 12 weeks from today."
11. Similar issue thereafter came up before a co-ordinate rt Bench of this Court (Justice Rajiv Sharma, J) in Santosh vs. The State of Himachal Pradesh and others 2011 (2) Shim. L.C. 38 wherein it was held that once the selection process had been commenced by recommending the name of the petitioner (therein), the same could not be scuttled by offering the appointment to the private respondent (therein). It is apt to reproduce the following observations:
"5. Petitioner belongs to I.R.D.P. family. She has been deserted by her husband as per Annexure A-4. No member of her family is in Government/Semi Government employment. She submitted an application to be considered for the post of Water Carrier for Government Primary School, Satog. She was called for interview on 27th January, 1999. She appeared in the interview and according to Mr. Virender Verma, learned counsel for the petitioner, her name was recommended. However, fact of the matter is that without completing the selection process, respondent No.4 has been appointed vide letter dated 29th April, 2002 under Rule 12 of the Scheme notified on 27th July 2001. Rule 12 of the Scheme reads thus:-
"12. Compassionate Ground Appointments:
The Government will have the power to appoint any candidate as Part Time Water Carrier on compassionate ground without following the selection process if the candidates are widows, ::: Downloaded on - 15/04/2017 20:29:23 :::HCHP 8 women deserted by their husbands, or otherwise destitute handicapped persons and if the candidates falls below the poverty line as defined by the Rural Development Department from time to .
time."
9. What emerges from the observations and discussion made hereinabove, is that the action of the respondent State to appoint respondent No.4 was illegal, arbitrary and unreasonable. The respondent-State was required to complete the selection process initiated for filling up the post of Water Carrier in Government of Primary School, Satog. The recommendations made by the Selection Committee were to be duly considered and thereafter, appointment letter was required to be issued to the candidate, rt whose name had been recommended by the Selection Committee.
Once the selection process has been commenced, it was not open to the State to scuttle the same by offering appointment to respondent No.4 on 29th April, 2002.
10. It is true that the petitioner has no indefeasible right to be appointed merely on the basis of the recommendations made by the Selection Committee, however, the reason to deny the public employment must be cogent and convincing.
11. Their Lordships of the Hon'ble Supreme Court in East Coast Railway and another vs. Mahadev Appa Rao and others, (2007) 7 Supreme Court Cases 678, have held as under:
14. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process.
The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent Writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter.
15. To the same effect is the decision of this Court in Union Territory of Chandigarh v. Dilbagh Singh and Ors. (1993) 1 SCC 154, where again this Court reiterated that while a ::: Downloaded on - 15/04/2017 20:29:23 :::HCHP 9 candidate who finds a place in the select list may have no vested right to be appointed to any post, in the absence of any specific rules entitling him to the same, he may still be .
aggrieved of his non-appointment if the authority concerned acts arbitrarily or in a malafide manner. That was also a case where selection process had been cancelled by the Chandigarh Administration upon receipt of complaints about the unfair and injudicious manner in which the select list of candidates for appointment as conductors in CTU of was prepared by the Selection Board. An inquiry got conducted into the said complaint proved the allegations made in the complaint to be true. It was in that backdrop rt that action taken by the Chandigarh Administration was held to be neither discriminatory nor unjustified as the same was duly supported by valid reasons for cancelling what was described by this Court to be as a "dubious selection".
16. Applying these principles to the case at hand there is no gainsaying that while the candidates who appeared in the typewriting test had no indefeasible or absolute right to seek an appointment, yet the same did not give a licence to the competent authority to cancel the examination and the result thereof in an arbitrary manner. The least which the candidates who were otherwise eligible for appointment and who had appeared in the examination that constituted a step in aid of a possible appointment in their favour, were entitled to is to ensure that the selection process was not allowed to be scuttled for malafide reasons or in an arbitrary manner.
17. It is trite that Article 14 of the Constitution strikes at arbitrariness which is an anti thesis of the guarantee contained in Articles 14 and 16 of the Constitution. Whether or not the cancellation of the typing test was arbitrary is a question which the Court shall have to examine once a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim an appointment against the advertised posts."
::: Downloaded on - 15/04/2017 20:29:23 :::HCHP 1012. Accordingly, the petition is allowed. The appointment of respondent No.4 made vide letter dated 29th April, 2002 is quashed and set-aside. Respondents No. 1 to 3 are directed to .
consider the case of petitioner for appointment to the post of Part Time Water Carrier on the basis of the recommendations made by the Selection Committee pursuant to interview held on 27th January, 1999, within a period of two months from the date of production of a certified copy of this judgment by the petitioner. No costs."
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12. Adverting to the facts, it is not in dispute that at the time when respondent No.5 applied for the post on 13.12.2011, rt the case of the petitioner had already been processed and recommended for appointment by respondent No.3 vide his letter dated 31.5.2011.
13. In terms of the judgment rendered by Hon'ble Division Bench in Sheela Devi's case (supra) which otherwise is binding upon this Court, the respondents were required to consider the candidature of all the candidates who were eligible as per Rule 12 and this list was to be prepared separately and thereafter it was not open for the State Government to pick up a particular candidate and appoint him as water carrier without considering the cases of other candidates.
14. Admittedly, this procedure has not been followed, therefore, I have no option but to set-aside the selection of respondent No.5. However, the petitioner cannot automatically be appointed and his case is required to be considered alongwith all other eligible persons including respondent No.5 herein.
::: Downloaded on - 15/04/2017 20:29:23 :::HCHP 1115. Having said so, I find merit in this petition and the same is accordingly allowed. The appointment of respondent No.5 .
is ordered to be quashed and set-aside. The respondents are directed to consider afresh the cases of all eligible candidates including the petitioner and respondent No.5 within a period of eight weeks and till such time, the respondent No.5 will be of permitted to discharge his duties as Part Time Water Carrier.
Needless to say that before considering the cases of eligible rt candidates, wide publicity regarding the post in question shall be made by publishing a notice to this effect at the Tehsil headquarters, office of Gram Panchayat, Palog (Manjhu) and outside the Gram Panchayat, Hatnali and also by way of proclamation through the Chowkidar, Gram Panchayat, Palog.
16. The petition is disposed of in the aforesaid terms, so also the pending application(s), if any, leaving the parties to bear their own costs.
May 30, 2016. ( Tarlok Singh Chauhan),
(GR) Judge
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