Himachal Pradesh High Court
Sunil Kumar vs Rajiya Sultan & Ors on 30 April, 2024
Bench: M.S. Ramachandra Rao, Jyotsna Rewal Dua
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA LPA No.160 of 2023 a/w LPA No.157 of 2023 Decided on: 30.04.2024 .
LPA No.157 of 2023
Sunil Kumar ...Appellant
Versus
Rajiya Sultan & Ors. ....Respondents
__________________________________________________________ LPA No.160 of 2023 Sunil Kumar ...Appellant Versus Union of India & Ors. ....Respondents __________________________________________________________ Coram:
Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?LPA No.157 of 2023
For the appellant : Mr. Ankush Dass Sood, Sr. Advocate with Mr. Vivek Negi, Advocate.
For the respondents : Mr. R.K. Bawa, Sr. Advocate with Mr. Udit Shaurya, Advocate, for respondent no.1.
Ms. Archna Dutt, Advocate, for
respondent no.2.
Mr. Anup Rattan, Advocate General with Mr. Gobind Korla, Additional Advocate General, for respondents no.3 & 4/State.LPA No.160 of 2023
For the appellant : Mr. Ankush Dass Sood, Sr. Advocate with Mr. Vivek Negi, Advocate.
For the respondents : Mr. Balram Sharma, Dy. Solicitor General of India, for respondents no.1 & 2. ::: Downloaded on - 10/05/2024 20:32:52 :::CIS 2 Mr. Anup Rattan, Advocate General with Mr. Gobind Korla, Additional Advocate General, for respondents no.3 to 7/State.
Ms. Archna Dutt, Advocate, for
respondent no.8.
.
Mr. R.K. Bawa, Sr. Advocate with Mr.
Udit Shaurya, Advocate, for respondent no.9.
M.S. Ramachandra Rao, Chief Justice (Oral).
These two Letters Patent Appeals are preferred by the appellants, challenging the common order passed by the learned Single Judge of this Court on 16.08.2023 in CWP no.5775 of 2021 and CWP no.1284 of 2022.
2. The appellant herein was the 4th respondent in CWP no.5775 of 2021 and the petitioner in CWP no.1284 of 2022.
3. The private respondent, in both the appeals, had filed CWP no.5775 of 2021 challenging the appointment letter issued to the appellant in the H.P. University as Assistant Professor in Public Administration in the EWS Category.
4. Both the appellant and the private respondent had applied for the said post alongwith others and both had been called for interviews held on 08.04.2021.
5. The appellant was selected and was offered appointment on 09.04.2021.
::: Downloaded on - 10/05/2024 20:32:52 :::CIS 3The case of the private respondent
6. The private respondent contended in CWP no.5775 of 2021 that .
the appellant had been appointed as an Inspector in the Department of Corporation, Government of Himachal Pradesh on contract basis in the year 2017, that he had joined the said services on 04.10.2017, and he was continued in the said post till he resigned on 09.04.2021 after his selection to the post of Assistant Professor in the subject of Public
7. to Administration in the H.P. University.
The private respondent contended that the Government of Himachal Pradesh had issued instructions on 11.06.2019 for implementation of the Constitution (103rd Amendment) Act, 2019 in the State of Himachal Pradesh, and that instruction no.3 therein bars a person from claiming the benefit of EWS Category, if his family owns or possesses any assets detailed therein. One of such assets relevant for the purpose of the issue is that the family of a regular/contract employee of the Central Government, State Government, Board, Corporations & Autonomous Bodies and Public Sector undertakings etc., would be excluded from being identified as EWS, irrespective of the family income.
8. It is not in dispute that the threshold income for the other persons, who can claim benefit of EWS category is that it should be less than Rs.4 lacs gross annual income.
::: Downloaded on - 10/05/2024 20:32:52 :::CIS 49. It appears that in advertisement issued for filling up the posts of Assistant Professors on 30.12.2019, there is a reference in Para-10 to instructions said to have been issued on 11.03.2019.
.
10. It is an admitted position that there was no instruction issued on the said date, but there had been instructions issued on 26.03.2019, 11.06.2019, 02.07.2019 & 16.10.2019, which have been filed in the Writ petition by the parties.
11. But the exclusion Clause on which the private respondent sought to rely to contend that the appellant is not entitled to the appointment in the EWS Category, is contained in the instructions issued on 11.06.2019.
CWP no.1284 of 2022
12. When notice was served on the appellant in CWP no.5775 of 2021, he filed CWP no.1284 of 2022, challenging the said instructions as being ultra vires and violative of the Constitution of India, and sought a direction that his EWS Certificate be upheld.
13. It is not in dispute that the appellant had produced an EWS Certificate dt. 18.01.2020 at the time he submitted his application in response to advertisement, Annexure P-1.
The stand of the official respondents
14. According to the reply filed by the Deputy Commissioner, Hamirpur (respondent no.2 in CWP no.5775 of 2021), the certificate issued to the appellant had been duly issued on the basis of report of Halqa Patwari and affidavit filed by respondent no.4, which were the ::: Downloaded on - 10/05/2024 20:32:52 :::CIS 5 only requirement for issuance of EWS Certificate prescribed under the norms.
15. However, the State Government had filed a reply in CWP .
no.1284 of 2022 filed by the appellant pointing out that the appellant had not disclosed that he was himself gainfully employed in the affidavit submitted by him for issuance of the said certificate and he had actually submitted a false certificate by suppressing the said information.
16. The fact that the appellant had not mentioned about the fact that he was working on contract basis in the Cooperation Department of the State Government in the said affidavit, is not denied by the appellant.
The decision of the learned single Judge
17. The learned Single Judge held that the instructions dt.11.06.2019, issued by the State Government had been adopted by the H.P. University; that the exclusion contained in Para-3 of the said instructions of persons whose family members were employed in State Government etc., either on regular or contract basis, was not violative of Article 14 of the Constitution of India; that the State Government had power to notify the criteria for 'Economically Weaker Section'; and the consideration of the candidate's employment in Government Sector or that of his family, cannot be held to be an irrelevant factor for disqualifying a person from the EWS category.
::: Downloaded on - 10/05/2024 20:32:52 :::CIS 6The contention of counsel for appellant
18. Counsel for the appellant contends that excluding only those employed in Government Sector from eligibility under the EWS .
category, and not including in the said exclusion, persons employed in private sector, is bad in law, and therefore the said provision in the instructions has to be held to be violative of Article 14 of the Constitution of India.
Consideration by the Court
19. We are unable to agree with the said submission for the reason that non-inclusion in the exclusion category of persons in private employment, may be a reason to include them also in exclusion category, but it will not be permissible to exclude those who were already in the exclusion category, such as the appellant who was engaged on contractual basis as an employee in the Cooperation Department of the State Government at the time he applied for the post in question.
20. Once it is not in dispute that the term 'family', includes the candidate himself as per the instructions dt. 11.06.2019, his own employment on contractual basis makes the appellant disqualified for being eligible in EWS category and securing an appointment on that basis in the H.P. University.
::: Downloaded on - 10/05/2024 20:32:52 :::CIS 721. The fact that the EWS Certificate issued to the appellant on 18.01.2020 has not been specifically challenged by the private respondent in her Writ petition (CWP no.5775 of 2021) is not relevant .
because the question is whether the appellant could have secured appointment on the basis of the said certificate at all, and in a situation where it is established that the true facts about his employment had been suppressed in the affidavit filed by him before the competent authority for securing the said certificate, he cannot be allowed to retain any the private respondent.
r to benefit on the mere ground of non-challenge to the said certificate by
22. As far as the eligibility of the private respondent is concerned, the learned Single Judge had held that her eligibility is to be considered by the competent authority and he is not intending to go into the said aspects because there were disputed questions of law and facts; and unless the private respondent is found by the H.P. University to have fulfilled all the eligible conditions for appointment to the said post and the category to which she seeks employment, she may not be eligible to secure appointment in the post which has now been vacated by the appellant.
23. We agree with this conclusion of the learned single Judge.
24. Therefore we find no merit in the appeals. They are accordingly dismissed.
::: Downloaded on - 10/05/2024 20:32:52 :::CIS 825. Pending miscellaneous application(s), if any, shall also stand disposed of.
(M.S. Ramachandra Rao) Chief Justice .
(Jyotsna Rewal Dua)
April 30, 2024 Judge
(Yashwant)
r to
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