Himachal Pradesh High Court
Ranbir Singh Son Of Sh.Kamal Singh vs Union Of India on 10 August, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 10th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 4446 of 2019
Between:
RANBIR SINGH SON OF SH.KAMAL SINGH
V&PO GHO (FANGOTA) COLONY,
PATHANKOT, PUNJAB-145001.
....PETITIONER
(BY VIJAY VIR SINGH, ADVOCATE )
AND
1. THE STATE OF HP THORUGH PRINCIPLE
SECRETARY (HIGHER EDUCATION) TO
THE GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA.
2. DIRECTOR, HIGHER EDUCAITN TO THE
GOVT OF H.P.
3. THE SECREARY, HIMACHAL PRADESH
SUBORDINATE SERVICE SELECTION
BOARD, HAMIRPUR, H.P.
....RESPONDENTS
(BY SH. SUDHIR BHATNAGAR, ADDITIONAL
ADVOCATE GENERAL WITH SH. R.P. SINGH,
SH. KAMAL SHARMA AND SH. NARENDER THAKUR,
DEPUTY ADVOCATE GENERALS.)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the following:
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ORDER
Being aggrieved and dissatisfied with the issuance of .
letter dated 10th June, 2014 (Annexure P-9), whereby Joint Directorate of Higher Education, Himachal Pradesh, informed the petitioner, whose name stood recommended by Secretary, Himachal Pradesh Subordinate Selection Service Board, Hamirpur, District Hamirpur, Himachal Pradesh ( for short 'Board') for appointment to the post of PGT (IP) that since his permanent address mentioned in the application form is outside of State of Himachal Pradesh, hence he may produce his Bona-fide Himachali Certificate on or before 20.06.2014, failing which, his candidature to the post of PGT (IP) shall be cancelled without any further notice, petitioner approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following reliefs:-
"(i) That writ in the nature of certiorari may kindly be issued, whereby directing the respondents to quash and set-aside the impugned letter dated 10.6.2014, Annexure P-9, issued by the respondent No.2.
(ii) That writ in the nature of mandamus may kindly be issued, directing the respondents to give appointment letter to the petitioner for the post of PGT (Informatics Practices)."
2. Precisely, the facts of the case as emerge from the record are that vide advertisement dated 13.12.2011 (Annexure P-5), Board advertized 767 posts of PGT (Informatics Practices) in the ::: Downloaded on - 31/01/2022 22:51:23 :::CIS Department of Education, Himachal Pradesh. Petitioner being eligible also applied against the post of PGT (IP), Code No.311 and he being .
fully qualified and eligible was called for interview by the Board. Vide press note issued by aforesaid Board, dated 24.12.2013, petitioner was declared to be successful in interview and his name was reflected in the merit list at Sr.No.287, as contained in Annexure P-8.
Pursuant to aforesaid selection of the petitioner his name came to be recommended to the Department of the Education for offering appointment. However, Directorate of Higher Education of Himachal Pradesh vide impugned order dated 10th June, 2014, called upon the petitioner to submit Bona-fide Himachali Certificate, failing which, his candidature against the post in question shall be cancelled. In the aforesaid background, petitioner approached this Court in the instant proceedings, praying therein reliefs, as have been reproduced hereinabove.
3. Having heard learned counsel representing the parties and perused the material available on record, this court finds that there is no dispute interse parties that petitioner being fully eligible was permitted to participate in the interview by respondent No.3, pursuant to advertisement dated 13.12.2011 issued for appointment against 767 posts of PGI (IP) in the Department of Education. It is also not in dispute that respondent No.3 after having found petitioner fully eligible declared him successful and his name finds mentioned at Sr. No.287 of the merit list issued by respondent No.3. It is also not in ::: Downloaded on - 31/01/2022 22:51:23 :::CIS dispute that name of the petitioner for appointment to the post of PGT (IP) was recommended by respondent No.3 to respondent No.2, .
who instead of offering appointment to the petitioner against the post of PGT(IP), called upon him to furnish bona-fide Himachali certificate.
4. Precise grouse of the petitioner, as has been raised in the instant petition is that since there was no bar for the people hailing from other State to participate in selection process initiated by the respondents pursuant to advertisement dated 13.12.2011 (Annexure P-5) and there was no specific condition contained in the advertisement that only candidates having bona-fide Himachali certificate shall be eligible to participate in the interview, respondent-
State could not have asked him to submit bona-fide Himachali certificate that too after his being selected in selection process.
5. Mr. R.P. Singh, learned Deputy Advocate General representing the respondents while referring to the reply filed on behalf of respondents No. 1 and 2, vehemently argued that since as per existing R&P Rules, post of PGT falls in Class-III (Non-Gazetted) and for every Non-Gazetted posts only bona-fide Himachali's having knowledge of customs, manner and dialects of Himachal Pradesh are eligible for appointment and as such, Directorate of Higher Education rightly called upon the petitioner to produce the bona-fide Himachali certificate. However, this Court having carefully perused the R&P Rules i.e. Annexure P-10, framed by the Department of Higher ::: Downloaded on - 31/01/2022 22:51:23 :::CIS Education Government of Himachal Pradesh for appointment of PGT (IP) Class-III, finds no force in the submissions made by learned .
Deputy Advocate General.
6. R &P Rules, if read in its entirety nowhere suggests that only candidates having bona-fide Himachali certificate are eligible to participate in the selection process, if any, initiated for the appointment to the post PGT (IP) in the Department of Education, Himachal Pradesh. No doubt, as per desirable qualification contained in clause 2(b) candidate aspiring to be selected as PGT must have knowledge of customs, manner and dialects of Himachal Pradesh, but definitely there is nothing in the R&P Rules suggestive of the fact that only bona-fide Himachali's can participate for selection against the post of PGT in the Department of Education, Himachal Pradesh.
7. Similarly, bare perusal of advertisement issued by respondent No.3, inviting applications from the eligible candidates for 767 posts of PGT (IP) in the Department of Education, Himachal Pradesh, nowhere suggest that candidates aspiring to apply were made aware of the conditions, if any, with regard to bona-fide Himachali certificate. Learned Deputy Advocate General after having carefully perused both R&P Rules and advertisement, dated 13.12.2011, was unable to point out provision, if any, contained in both the documents, as referred hereinabove, with regard to necessity of producing bona-fide Himachali certificate at the time of interview. Learned Deputy Advocate General was also unable to place ::: Downloaded on - 31/01/2022 22:51:23 :::CIS on record administrative instructions, if any, issued by State of Himachal Pradesh with regard to requirement of bona-fide Himachali .
certificate while applying for the post of PGT in the Department of Education, Himachal Pradesh. Otherwise also, administrative instructions, if any, cannot supersede R&P Rules, which are framed by the appropriate Government under Article 309 of the Constitution of India.
8. By now it is well settled that no citizen on the grounds of religion, race, caste, sex, descent, and place of birth, residence or any of them can be declared ineligible or discriminated against the state employment. So far as employment under the State or any local or other authority is concerned, no citizen can be given preference nor can any discrimination be practiced against him on the ground of residence. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Dr. Pradeep Jain etc. versus Union of India, AIR 1984 Supreme Court 1420, wherein it has been held as under:-
"5. We may point out at this stage that though Article 15 (2) clauses (1) and (2) bars discrimination on grounds not only of religion, race, caste or sex but also of place of birth, Article 16 (2) goes further and provides that no citizen shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for or discriminated against in state employment. So far as employment under the state, or any local or other authority is concerned, no citizen can be given preference nor can any discrimination be practised against him on the ground only of residence. It would thus appear that residential requirement would be unconstitutional as a condition of eligibility for employment or appointment to an office under the ::: Downloaded on - 31/01/2022 22:51:23 :::CIS State and having regard to the expansive meaning given to the word `State' in Ramana Dayaram Shetty v. International Airport Authority of India & Ors., it is obvious that this constitutional prohibition would also cover an office under any local or other authority .
within the State or any corporation, such as a public sector corporation which is an instrumentality or agency of the State. But Article 16 (3) provides an exception to this rule by laying down that Parliament may make a law "prescribing, in regard to a class or classes of employment or appointment to an office under the government of, or any local or other authority, in a state or union territory, any requirement as to residence within that state or union territory prior to such employment." or appointment Parliament alone is given the right to enact an exception to the ban on discrimination based on residence and that too only with respect to positions within the employment of a State Government. But even so, without any parliamentary enactment permitting them to do so, many of the State Governments have been pursuing policies of localism since long and these policies are now quite wide spread. Parliament has in fact exercised little control over these policies States. The only action which Parliament has taken under Article 16 (3) giving it the right to set residence requirements has been the enactment of the Public Employment (Requirement as to Residence) Act, 1957 aimed at abolishing all existing residence requirements in the States and enacting exceptions only in the case of the special instances of Andhra Pradesh, Manipur, Tripura and Himchal Pradesh. There is therefore at present no parliamentary enactment permitting preferential policies based on residence requirement except in the case of Andhra Pradesh, Manipur Tripura and Himachal Pradesh where the Central Government has been given the right to issue directions setting residence requirements in the subordinate services. Yet, in the face of Article 16 (2), some of the States are adopting `sons of the soil' policies prescribing reservation or preference based on domicile or residence requirement for employment or appointment to an office under the government of a State or any local or other authority or public sector corporation or any other corporation which is an instrumentality or agency of the State. Prima facie this would seem to be constitutionally impermissible though we do not wish to express any definite opinion upon it, since it does not directly arise for consideration in these writ petitions and civil appeal".::: Downloaded on - 31/01/2022 22:51:23 :::CIS
9. Co-ordinate Bench of this Court vide judgment dated 10th April, 2015 passed in CWP No.2007 of 2013, titled as Anshul Sharma .
versus State of H.P. and others, has held that once Recruiting Agency has recommended the name of the candidate for particular post, appointing department in which candidates is to be offered appointment cannot reject the candidature of the selected candidate on any ground.
"10. The apex Court in Chandrakala Trivedi versus State of Rajasthan and others reported in (2012) 3 SCC 129, held that the word "equivalent" must be given a reasonable meaning. If a person is provisionally selected, it is not within the powers of the department to refuse r appointment when he has been found suitable by the Commission and recommendation has been made for his appointment. It has been further held that a recommendee has legitimate expectation which cannot be taken away on flimsy grounds. It apt to reproduce paras 7 to 10 of the said judgment herein.
"7. In the impugned judgment, the High Court has given a finding that the higher qualification is not the substitute for the qualification of Senior Secondary or Intermediate. In the instant case, we fail to appreciate the reasoning of the High Court to the extent that it does not consider higher qualification as equivalent to the qualification of passing Senior Secondary examination even in respect of a candidate who was provisionally selected.
8. The word 'equivalent' must be given a reasonable meaning. By using the expression, 'equivalent' one means that there are some degrees of flexibility or adjustment which do not lower the stated requirement. There has to be some difference between what is equivalent and what is exact. Apart from that after a person is provisionally selected, a certain degree of reasonable expectation of the selection being continued also comes into existence.
9. Considering these aspects of the matter, we are of the view that the appellant should be considered reasonably and the provisional appointment which was given to her should not be cancelled. We order accordingly. However, we make it clear that we are passing this order taking in our view the special facts and circumstances of the case.::: Downloaded on - 31/01/2022 22:51:23 :::CIS
10.We hope and expect that the respondent Rajasthan Public Service Commission shall make a suitable recommendation in the light of the observation in this judgment within four weeks from today and the State, which is also a party, will make an appointment .
accordingly within four weeks thereafter. The appeal is disposed of. No costs."
11. The apex Court has also dealt with this issue in case titled Dr. Basavaiah v. Dr. H.L. Ramesh and others with Dr. Manjunath v. H.L. Ramesh and others reported in 2010 AIR SCW 5907. It is apt to reproduce paras 32, 33, 35 and 44 of the said judgment herein.
"32. According to the experts of the Selection Board, both the appellants had requisite qualification and were eligible for appointment. If they were selected by the Commission and appointed by the Government, no fault can be found in the same. The High Court interfered and set aside the selections made by the experts committee. This Court while setting aside the judgment of the High Court reminded the High Court that it would normally be prudent and safe for the courts to leave the decision of academic matters to experts. The Court observed as under:
"7. ....When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing teaching research experience in technical subjects, the Courts should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the Courts generally can be..."
33. In Dr. J. P. Kulshrestha & Others v. Chancellor, Allahabad University & Others (1980) 3 SCC 418, the court observed that the court should not substitute its judgment for that of academicians:
"17. Rulings of this Court were cited before us to hammer home the point that the court should not substitute its judgment for that of academicians when the dispute relates to educational affairs. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.
... ... ..." 34....... ........
35. In Neelima Misra v. Harinder Kaur Paintal & Others (1990) 2 SCC 746, the court relied on the judgment in University of Mysore (AIR 1965 SC 491) and observed that in the matter of appointments in the academic field, the court generally does not interfere. The court further observed that the High Court should show due ::: Downloaded on - 31/01/2022 22:51:23 :::CIS regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which the Chancellor had acted. 36 to 43. ..... ......
44. In All India Council for Technical Education v.
.
Surinder Kumar Dhawan & Others (2009) 11 SCC 726, again the legal position has been reiterated that it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies."
10. Once respondent No.3 being specialized agency found petitioner to be eligible and selected him in the interview, appointing authority has no right, whatsoever to reject his candidature that too on the ground of residence. Since condition with regard to bona-fide Himachali certificate never came to be incorporated in the advertisement issued by respondent No.3 at the behest of appointing department i.e. respondent No.2 and such, condition also does not exists in the R&P Rules, action of respondents in impressing upon the petitioner to produce the bona-fide Himachali certificate cannot be allowed to sustain.
11. Consequently, in view of the detailed discussion made hereinabove, the present petition is allowed and order dated 10th June, 2014 (Annexure P-9) is quashed and set-aside. Respondent No.2 is directed to offer appointment to the petitioner, if any, against the post of PGT (IP), as per the recommendation made by Recruiting Agency (respondent No.3) vide press note Annexure P-8, wherein name of the petitioner figures at Sr. No.287. Since pursuant to order dated 3.9.2014 passed by Division Bench of this Court one post of PGT (Informatics Practices) has been kept vacant, there is no difficulty for the respondents to offer appointment to the petitioner ::: Downloaded on - 31/01/2022 22:51:23 :::CIS against such post. Since petitioner has been running from pillar to post to get his due for more than seven years, this Court hopes and .
trust that needful shall be done within a period of two weeks from today. Pending application(s), if any, also stands disposed of.
10th August, 2021 (Sandeep Sharma),
(shankar) Judge
r to
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