Himachal Pradesh High Court
Anshul Sharma vs State Of H.P. & Anr on 4 March, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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CWPOA No. 7813 of 2019
Decided on: 04.03.2021
Anshul Sharma .....Petitioner.
Versus
State of H.P. & anr. .....Respondents.
Coram
Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
For the petitioner : Mr. Rajesh Kumar, Advocate.
For the respondents : Mr. Anil Jaswal, Addl. AG with Mr. Amit
Dhumal, Dy. AG and Mr. Manoj Bagga,
Asstt. AG.
Jyotsna Rewal Dua, Judge (Oral)
Instant writ petition has been filed for following substantive prayer:-
"I) That the respondents may kind be directed to grant seniority, salary and increments to the applicant from the year of 2012 when the two other candidates those are at serial no. 2 and 3 of the merit list in the interest of law equity and justice."
1Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 04/03/2021 19:59:42 :::HCHP 22(i) The petitioner under went selection process for .
appointment to the post of Lecturer in Automobile Engineering, Class-I (Gazetted) in the department of Technical Education during the year 2012. The Himachal Pradesh Public Service Commission on 16.8.2012 recommended his name at serial No. 1 in order of merit for appointment along with two other candidates at serial Nos. 2 and 3.
2(ii) to Despite his name having been recommended by the H.P. Public Service Commission, the respondent-State did not issue appointment order in favour of the petitioner on the ground that he did not possess the essential qualification for the post.
This compelled the petitioner to institute CWP No. 2007 of 2013, which was decided on 10.4.2015. In the judgment, it was observed that while refusing to issue the appointment order in favour of the petitioner, the respondent-State had not taken into consideration the equivalence certificate in respect of his qualification. It is apt to extract following paragraphs from the aforesaid judgment dealing with the factual position of the case:-
"6. The Public Service Commission, after examining the documents and the qualification certificates of the petitioner, found him eligible and permitted him to appear in the written examination. He made the grade in the written examination and successfully made the grade in the interview also.
7. The Public Service Commission scrutinized the application and found all the papers in order and made ::: Downloaded on - 04/03/2021 19:59:42 :::HCHP 3 recommendation for selection. How can the respondents make 'U'-turn and deny him the appointment .
8. The petitioner has placed on record equivalence certificate issued by the Lovely Professional University, Annexure P6, which clearly indicates that B. Tech. in Automobile Engineering is equivalent to B. Tech. in Mechanical Engineering. It is apt to reproduce paras 1 and
2 of the said certificate herein.
"(i) This is in reference to your advertisement for lecturer in Automobile on HPPSC website. The program B. Tech in Mechanical Engineering (Lateral Entry) from Lovely Professional University (LPU) has been mapped against B. Tech in r Automobile Engineering (Lateral Entry) from JawaharLal Nehru Technological University, Hyderabad (Annexure-1). The overall Curriculum of B. Tech in Mechanical Engineering (Lateral Entry) offered by LPU is at par with B. Tech in Automobile Engineering (Lateral Entry) offered by JawaharLal Nehru Technological University. More than 75% of courses of B. Tech in Mechanical Engineering (Lateral Entry) from Lovely Professional University(LPU) and B. Tech in Automobile Engineering (Lateral Entry) from JawaharLal Nehru Technological University, Hyderabad are same.
(ii) As you know LPU has been established by the State Legislature of Govt. of Punjab vide Act No. 25 of 2005 (Annexure-2), it has also been recognized by UGC under Section 2 (f) of UGC Act, 1956 by notification NO. F.9-10/2006 (CPP1) and is included in the list of universities maintained by UGC (Annexure-3). Besides, LPU is also a member of Association of Indian Universities (AIU;
Annexure-4). LPU is a statuary University set up through Punjab Legislative and thus degrees are awarded by LPU stand registered. The students ::: Downloaded on - 04/03/2021 19:59:42 :::HCHP 4 graduating from LPU are being admitted to institution of Higher education in all parts of the .
world"
9. The said certificate has not been taken into consideration by respondents No. 1 and 2. The entire exercise made by the respondents amounts to taking away the legitimate right of the petitioner. When the concerned University, i.e., the expert body has stated that qualification of B. Tech in Automobile Engg. is equivalent to the qualification of B. Tech. in Mechanical Engineering, and that is why the said certificate was accepted by the Public Service Commission, then how can it lie in the mouth of respondents No. 1 and 2 that it is not equivalent and petitioner was not eligible to participate in the selection process."
Accordingly the writ petition was allowed and respondents were directed to consider the recommendation made by the Public Service Commission on 16.8.2012 and to pass appropriate order thereupon within a period of four weeks.
2(iii) Subsequently, The Himachal Pradesh Public Service Commission on 23.4.2013 cancelled the candidature of petitioner for appointment to the post in question. On that basis, the request of the petitioner for appointment was also rejected by respondent No. 1 on 22.5.2015.
2(iv) It appears from the record that Public Service Commission yet again on 20.6.2015 withdrew its decision as conveyed in letter dated 23.4.2015 with regard to cancellation of candidature of the petitioner and re-iterated its earlier recommendation dated 16.8.2012 whereby the petitioner was ::: Downloaded on - 04/03/2021 19:59:42 :::HCHP 5 recommended at serial No. 1 in order of merit for appointment to the post in question.
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2(v) Since the petitioner was still not appointed to the post, therefore, he was once again compelled to institute CWP No. 2953 of 2015. During pendency of the second writ petition, a statement was made on behalf of respondent-State that petitioner has been asked to undergo medical examination and thereafter he shall be offered the appointment letter.
basis of this statement, this writ petition was disposed of on 1.7.2015 as having become infructuous.
On the
3. Finally a notification was issued on 14.7.2015 appointing the petitioner as Lecturer (Automobile Engineering) in department of Technical Education. The grievance of the petitioner now is that for no fault of his, the appointment order was not issued to him at the relevant time despite his having been selected and recommended at Serial No. 1 in order of merit by the H.P. Public Service Commission on 16.8.2012. It was only subsequent to his filing CWP No. 2007 of 2013 (decided on 10.4.2015) and CWP No. 2953 of 2015 that appointment letter was issued in his favour on 14.7.2015. Therefore, learned Counsel for the petitioner contended that the petitioner deserves to be granted seniority, salary and increments against the post in question from the year 2012 when he was selected and recommended for the post in question along with other two ::: Downloaded on - 04/03/2021 19:59:42 :::HCHP 6 candidates who were selected along with him and were at serial Nos. 2 and 3 in the order of merit .
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Learned Additional Advocate General argued that petitioner could not be appointed earlier as he did not possess the essential qualification prescribed in the advertisement. He also submitted that the petitioner is not entitled to the monetary benefits of salary and increments prior to his actual appointment on the post in question.
4. It is rnot in to dispute that H.P. Commission had recommended the name of the petitioner for Public Service appointment to the post in question at Serial No. 1 in order of merit along with two other candidates on 16.8.2012. The candidates at serial Nos. 2 and 3 were appointed, whereas the petitioner was not offered the appointment on the ground that he did not possess the essential qualification required for the post.
The ground was negatived by this Court in judgment rendered on 10.4.2015 in CWP No. 2007 of 2013. It was only during another round of litigation, initiated by the petitioner, that the respondent implemented the judgment and issued notification on 14.7.2015 appointing him to the post but with immediate effect. In my considered opinion, petitioner was not at fault for non-issuance of appointment letter in his favour at the relevant time. Fault for delaying his appointment lies with the ::: Downloaded on - 04/03/2021 19:59:42 :::HCHP 7 respondent. In this regard, it would be apt to re-produce paragraph-6 of the rely filed by respondents No. 1 and 2:
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6. That the replying respondent after verification of character and antecedents report and medical examination of the applicant, offered appointment vide notification dated 14.7.2015, with immediate effect, as the applicant had not actually worked from back date. There is no dispute of seniority. The seniority in respect of direct recruits is fixed on the basis of merit of the Commission and the applicant undisputedly stands at Serial No. 1 and he will be offered seniority as per recommendations of the Commission, above the other candidates at Sr. No. 2 and 3, appointed from the same Panel, after his regularization, when seniority list will be prepared/circulated The applicant had not worked actually before the date of appointment viz 14.7.2015, as Lecture (Automobile Engineering), therefore, question of payment of salary does not arise on the basis of principle of "no work no pay". No doubt, there is no fault of the applicant for non issuing of appointment letter in his favour and he was offered appointment in the year 2015 inspite of the fact that recommendation was made in the year 2012. But the matter remained under examination/sub-judice due to technical reasons and equivalency of his qualification. The replying respondent considering this aspect, on the receipt of such representation from the applicant, may take up the mater with Advisory Departments of the Government regarding granting him notional increment and granting him benefit of deemed appointment from the same date, when his juniors were offered appointment."
A reading of above paragraph shows that respondents are themselves aware of and concede the fact that the petitioner was not at fault for his delayed appointment. It is also the stand of the respondents that petitioner would be ::: Downloaded on - 04/03/2021 19:59:42 :::HCHP 8 offered seniority as per recommendation of the H.P. Publice Service commission above the other candidates at serial Nos. 2 .
and 3 appointed from the same panel, where name of petitioner figures at serial No. 1.
For all the aforesaid reasons, present is a fit case for granting the petitioner notional seniority along with notional benefits of increments by deeming his appointment from the Commission on 16.8.2012.
same date when his juniors were offered the appointment pursuant to the recommendation made by the H.P. Public Service According, the writ petition is allowed. The respondents are directed to grant the petitioner notional seniority, notional increments/benefits resulting from his deemed appointment from the same date when his juniors were offered the appointment pursuant to the recommendation of H.P. Public Service Commission on 16.8.2012 within a period of three months from today. Pending application(s), if any, shall also stand disposed of.
Jyotsna Rewal Dua Judge 4th Mach, 2021, (vs) ::: Downloaded on - 04/03/2021 19:59:42 :::HCHP