Himachal Pradesh High Court
W/O Sh. Narender Kumar vs Triloki Nath Khosa 1974 (1) on 24 August, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 24th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN,
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 1706 OF 2020
Between:-
MRS. RUCHI KUMARI AGED ABOUT 32 YEARS
W/O SH. NARENDER KUMAR
R/O VILLAGE GHORI (RIHRI), P.O.
SMAILA, TEHSIL SARKAGHAT,
DISTRICT MANDI, H.P. 175034
OCCUPATION: UNEMPLOYED.
r ....PETITIONER
(BY SH. RAJESH K. PARMAR, ADVOCATE)
AND
1. THE HIGH COURT OF
HIMACHAL PRADESH THROUGH
REGISTRAR GENERAL,
THE MALL, REVENSWOOD,
SHIMLA (H.P.) PIN 171 001.
2. THE STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (HOME), H.P.
SECRETARIAT, SHIMLA (H.P.)
PIN 171001.
3. SH. HIMANSHU THAKUR
(SYSTEM OFFICER)
OFFICE OF THE DISTRICT &
SESSIONS JUDGE, SOLAN,
DISTRICT COURTS, SOLAN, H.P.
4. SH. SANT RAM
(SYSTEM OFFICER)
OFFICE OF THE DISTRICT &
SESSIONS JUDGE, MANDI
DISTRICT COURTS, MANDI, H.P.
5. SH. MANORANJAN VERMA
(SYSTEM OFFICER)
OFFICE OF THE DISTRICT &
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2
SESSIONS JUDGE, SHIMLA
JCC AT CHAKKAR, SHIMLA, H.P.
PIN 171 005.
.
6. SH. MOHIT KUMAR
(SYSTEM OFFICER)
OFFICE OF THE DISTRICT &
SESSIONS JUDGE, KULLU
DISTRICT COURTS KULLU, H.P.
..RESPONDENTS
(MR. SURINDER VERMA, ADVOCATE FOR R-1
AND MR. VINOD THAKUR, MR. SHIV PAL
MANHANS, ADDITIONAL ADVOCATE GENERALS,
MR. J.S. GULERIA AND MR. BHUPINDER THAKUR,
DEPUTY ADVOCATE GENERALS FOR R-2)
RESERVED ON: 10.08.2021
DECIDED ON: 24.08.2021
____________________________________________________________________________
This petition coming on for orders this day, Hon'ble Mr. Justice
Satyen Vaidya, passed the following:
ORDER
By way of instant petition, the petitioner has prayed for the following substantive reliefs:-
a) by way of issuance of writ of certiorari, "Notification No. HHC/Rules/Tech.Man.(Comp.)1/2014 dated 1st October, 2016 which is violative of the Constitution of India and clear disobedience of the judgments passed/law laid down by the Hon'ble Court and affirmed by Hon'ble Apex Court of India, may very kindly be quashed and set aside;
b) by way of issuance of writ of certiorari, Advertisement No.HHC/Estt.7(50)/2014-2978-81, dated 23.01.2019, and impugned recruitment process order based on the impugned Advertisement may very kindly be quashed and set aside because same is violative of the right of equality and an attempt to promote back door entry;::: Downloaded on - 31/01/2022 22:56:14 :::CIS 3
c) by way of writ of mandamus, respondents No. 1 and 2 may very kindly be directed to issue fresh Advertisement and initiate fresh recruitment process by availing the equal opportunity to the .
petitioner an similar situated people;"
BRIEF FACTUAL MATRIX
3. Hon'ble Supreme Court, with a view to computerize the Indian Judiciary, constituted e-committee and on its recommendations framed the National Policy on 01.08.2005. DOEACC for short 'society' was made the nodal agency. As per policy decision, cadre of trouble shooters (Technical Manpower) for different Courts was to be created and in terms of National Policy, posts were to be created for conversion of Courts into e-Courts.
4. On account of non-availability of Society in the State of Himachal Pradesh, the Department of Information and Technology, vide communication dated 02.09.2008 empaneled M/s New Horizons India Limited as the agency for providing technical manpower in the High Court and District Courts in Himachal Pradesh. In pursuance to above noted process, certain persons were selected as System Officers. Undisputedly, the persons so selected as System Officers were on the rolls of M/s New Horizons India Limited. They were not appointed by the High Court. The terms and conditions of the appointment of such persons were absolutely clear whereby their appointments were purely on temporary basis against the assigned project.
Their services were liable to be terminated at 15 days' notice in the event of abandonment/dis-continuance of the project.
5, In the meanwhile, High Court had framed High Court of Himachal Pradesh Members of Technical Manpower (Computers) (Appointment, Conditions of Service and Conduct) Rules, 2014 (for short "2014 Rules") in exercise of powers under Article 229(2) of the Constitution of India. The 2014 ::: Downloaded on - 31/01/2022 22:56:14 :::CIS 4 rules prescribed mode of appointment and qualification etc. for the post of Assistant Programmer as under:
.
Sr. No. Nomenclature of the Pay scale and Mode of Age for direct Qualification
post Grade pay Appointment appointment
1. 2. 3. 4. 5. 6.
Assistant Rs.10300- By direct 22 to 45 years to a). B.E/B.Tech in
Programmer 34800+3800/- recruitment from be seen on the Computers or I.T. or
Grade pay the eligible last date of equivalent technical
persons as per receipt of qualification at least in
column Nos. 5 applications. second division.
and 6. Or
b). B.Sc/B.A/B.Com in
First Division with post
Graduate Diploma in
Computer application/I. T
with two (2) years
experience as System
Assistant or Asstt.
Programmer on higher or
equivalent post.
r Or
c). (xxxx)
or
d). Matriculation with 3
years Diploma in
Computers from any
recognized Polytechnic
College or equivalent
technical qualification from
the recognized
Institution/Board/University
with four (4) years
experience as at (b) above.
6. Some of the System Officers, working on rolls of New Horizons India Limited, approached this Court by way of CWP Nos. 745 and 1026 of 2015, with a prayer to grant them regularization of their services or in alternative to grant them preferential right of consideration for the post of Assistant Programmer by making suitable amendment in the recruitment Rules. High Court contested these petitions and the petitions came to be dismissed by a Co-ordinate Bench of this Court vide common judgment dated 06.05.2016.
While dismissing the petitions, it was held as under:-
::: Downloaded on - 31/01/2022 22:56:14 :::CIS 5"27. The appointment of the petitioners was not made by the High Court or any of the Subordinate Court(s) and that apart, their conditions of appointment clearly envisaged cessation of .
employment at the end of fixed tenure. On the contrary, the appointment of the petitioners was made either by the Society or the Institute or M/s New Horizons India Ltd. and the High Court has simply decided to extend the services of the out sourced technical manpower till 31.3.2015.
28. Moreover, it was in terms of the comprehensive guidelines framed on 6.6.2014 that the petitioners themselves gave undertakings to abide by the guidelines wherein in para 7 it was clearly stipulated that the selection was purely on contractual in nature and would not confer any right or permanent absorption.
Thus, there was no occasion whereby the petitioners could legitimately have expected that their services would be taken over or regularized or relaxation of any kind would be extended to them at the time when the posts would be filled up on regular basis by the High Court.
Right of regularisation:
29. Adverting to the second submission regarding right of regularisation of the services of the petitioners, as noticed earlier that the appointment of the petitioners has not been made by the Subordinate or the High Court, but has been made by the Society or the Institute or M/s New Horizons India Ltd.
Apart from the above, it would also be noticed that the appointments of the petitioners were contrary to the provisions of Articles 14 and 16 of the Constitution. No doubt, the petitioners were appointed pursuant to advertisements issued in the newspaper but that in itself cannot be a sufficient compliance of Articles 14 and 16 of the Constitution of India.
::: Downloaded on - 31/01/2022 22:56:14 :::CIS 631. It would be evident from the aforesaid advertisement that it was the Society and the Institute and not the Courts which had issued the advertisements and therefore the appointments that .
were to be made on contract basis were to be made by and for the authorities issuing advertisements themselves and not by or for the Court. It was only the staff appointed on contract basis by these authorities that in turn was to be deployed in the Court.
32. Further, the terms and conditions as stipulated in the advertisement whereby appointments that too on contract basis for being deployed in various Courts obviously dissociated the best talent from coming forward and applying for the post in question because the posts never pertained to the Courts but were for and on behalf of the Society or the Institute. In such circumstances, the mere continuance in service or extending the period of appointment of the petitioners, that too, by the service provider cannot in itself confer any right upon them for regularisation or else this would amount to perpetuating an illegality.
7. The above noted judgment though attained finality, yet High Court carried 2nd amendment to the 2014 Rules on 1.10.2016. The mode and qualifications etc. for the post of Assistant Programmer, after amendment, read as under:
Sr. No. Nomenclature of the Pay scale and Mode of Age for direct Qualification post Grade pay Appointment appointment
1. 2. 3. 4. 5. 6.
Assistant Rs.10300- (a) By selection 22 to 45 years to a). B.E/B.Tech in Programmer 34800+3800/- on the basis of be seen on the Computers or I.T. or Grade pay limited last date of equivalent technical competitive receipt of qualification at least in examination applications. second division.
from amongst Or
the System b). B.Sc/B.A/B.Com in
Officers First Division with post
working under Graduate Diploma in
the e-Courts Computer application/I. T
Project and with two (2) years
continued experience as System
thereafter in Assistant or Asstt.
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7
High Court of Programmer on higher or
H.P/Courts equivalent post.
subordinate to Or
the High Court c). (xxxx)
.
of H.P. having or
minimum 3 d). Matriculation with 3
years experience years Diploma in
as System Computers from any
Officers. recognized Polytechnic
(b) Failing College or equivalent
which by direct technical qualification from
recruitment from the recognized
the eligible Institution/Board/University
persons as per with four (4) years
column Nos. 5 experience as at (b) above.
and 6.
8.
Perusal of amended Rules reveal that the first right of selection, for the post of Assistant Programmer, was provided to the persons having minimum three years experience as System Officers under the e-Courts project of the High Court. It was only in the event of failure to select a candidate for the post of Assistant Programmer through this process that the mode of direct recruitment from the eligible persons was to be adopted.
9. Based on 2nd amendment to 2014 Rules, High Court, invited applications for the post of Assistant Programmer vide circular Circular No. HHC/Estt.7(50)/2014-2978-81, dated 23.01.2019 PETITIONER'S GRIEVANCE
10. The grievance of the petitioner is that the 2 nd amendment dated 1.10.2016 to the 2014 Rules is violative of Articles 14 and 16 of the Constitution of India and thus, based on such amendment, the selection process for the post of Assistant Programmer undertaken by the High Court in pursuance to Circular No. HHC/Estt.7(50)/2014-2978-81, dated 23.01.2019, denying her equal opportunity of participation, is wrong and illegal.
11. Petitioner has laid challenge to the aforesaid amendment and consequent recruitment process by alleging the same to be in violation of the ::: Downloaded on - 31/01/2022 22:56:14 :::CIS 8 fundamental rights provided to her under Article 14 and 16 of the Constitution of India. According to the petitioner, the System Officers .
working under the e-courts project having three years' experience, as such, cannot form a special class. There is no justifiable object or rationale behind such classification. Persons with similar or higher qualifications and equipped with better experience have been ignored. There is no nexus between the formation of such classification and object sought to be achieved, therefore, the classification so made is unreasonable.
RESPONDENT'S RESPONSE
12. In response, High Court has contested the stand of the petitioner on the ground that the challenge laid by the petitioner to the 2 nd amendment to 2014 Rules is highly belated. It has been submitted that the selection process was initiated strictly in accordance with the amended Rules. Details with respect to the procedure adopted for undertaking the selection process have been averred. What is missing in the reply of High Court is the explanation of the reasons for the classification so made by way of 2 nd amendment to 2014 Rules. The silence of High Court is conspicuous on this aspect of the matter which goes to the root of issues involved in the present lis.
13. Respondent No.2 in its reply has simply stated that it has nothing substantive to state as the matter concerned High Court. Respondents No. 3 to 6 did not chose to contest the petition and have been proceeded against ex-parte.
ANALYSIS
14. Article 16 of the Constitution of India guarantees the fundamental right in favour of the citizens of India to have equality of opportunity in matters ::: Downloaded on - 31/01/2022 22:56:14 :::CIS 9 relating to employment or appointment to any office under the State. There is no scope to deviate save and except the inherent prescriptions of the .
provision itself. Additionally, any classification formed within the citizens of India for the purposes of any employment or appointment to any office under the State, the same has to qualify the test of reasonableness and the classification so made must have a nexus with the object sought to be achieved.
15. In State of Jammu and Kashmir vs. Triloki Nath Khosa 1974 (1) SCC 19, Constitutional Bench of the Supreme Court held as under:-
"29. his argument, as presented, is attractive but it assumes in the court a right of scrutiny somewhat wider than is generally recognized. Article 16 of the Constitution which ensures to all citizens equality of opportunity in matters relating to employment is but an instance or incident of the guarantee of equality contained in article 14. The concept of equal opportunity undoubtedly permeates the whole spectrum of an individual's employment from appointment through promotion and termination to the payment of gratuity and pension. But the concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say that those who are similarly circumstanced are entitled to an equal treatment.
31. Classification, however, is fraught with the danger that it may produce artificial inequalities and therefore, the right to classify is hedged in with salient restraints; or else, the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well-marked classes characterized by different and distinct attainments. Classification, therefore, must be truly founded on substantial ::: Downloaded on - 31/01/2022 22:56:14 :::CIS 10 differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be .
achieved."
16. The amendment in the Rules, carried by High Court, vide 2 nd amendment dated 01.10.2016 cannot stand the scrutiny of law as it violates Articles 14 and 16 of the Constitution of India. The classification so made vide amendment supra cannot be said to be reasonable and also cannot be said to have been made to achieve any legally sustainable objective. No reason much less any plausible reason has come forth to justify such act. Not even a single word has been uttered on behalf of the High Court justifying any reason which might have weighed with it for creating a special class. Even otherwise also we have not been able to perceive any single reason for making such classification. To consider that the system officers working under e-courts had gained special experience will only be a fallacy, because firstly, there is nothing on record to suggest such hypothesis and secondly it cannot be assumed that except for these persons others would have lacked in such experience.
17. Once the persons working under a specific project were held to have no right of preferential treatment in the appointment to the post of Assistant Programmer, It was highly unreasonable and arbitrary on the part of the High Court to have recognized such preferential right in their favour by carrying impugned amendment to 2014 Rules. The claims of the System Officers working with the High Court under e-courts project, as noted above, for regularization and for preferential right of consideration for the post of Assistant Programmer were already rejected by a judicial pronouncement of this Court. Respondents No. 3 to 6 herein were also the petitioners in the ::: Downloaded on - 31/01/2022 22:56:14 :::CIS 11 above noted writ petitions decided by this Court. Still, the High Court volunteered to amend the 2014 Rules which has the effect of undoing the .
effect of the judicial pronouncement on the issue.
18. The scope to undo effect of judicial pronouncement by legislative action has been discussed by Hon'ble Apex Court as under in Indian Aluminium Co. and Others Vs State of Kerala and others (1996) 7 SCC 637:-
"36. The validity of the validating Act is to be judged by the following tests: [i] whether the legislation enacting the validating Act has competence over the subject matter; [ii] whether by validation, the legislature has removed the-defect which the court had found in the previous law [iii] whether the validating law is inconsistent with the provisions of Chapter III of the Constitution. If tests are satisfied, the Act can confer jurisdiction upon the Court with retrospective effect and validate the past transactions which were declared to be unconstitutional. The legislature cannot assume power of adjudicating a case by virtue of its enactment of the law without leaving it to the judiciary to decide it with reference to the law in force. The legislature also is incompetent to overrule the decision of a Court without properly removing the base on which the judgment is founded."
19. Hon'ble Supreme has reiterated the same view in Union of India and others Vs. Exide Industries Ltd and another, (2020) 5 SCC 274:-
37. It is no doubt true that the legislature cannot sit over a judgment of this Court or so to speak overrule it. There cannot be any declaration of invalidating a judgment of the Court without altering the legal basis of the judgment as a judgment is delivered with strict regard to the enactment as applicable at the ::: Downloaded on - 31/01/2022 22:56:14 :::CIS 12 relevant time. However, once the enactment itself stands corrected, the basic cause of adjudication stands altered and necessary effect follows the same. A legislative body is not .
supposed to be in possession of a heavenly wisdom so as to contemplate all possible exigencies of their enactment. As and when the legislature decides to solve a problem, it has multiple solutions on the table. At this stage, the Parliament exercises its legislative wisdom to shortlist the most desirable solution and enacts a law to that effect. It is in the nature of a 'trial and error' exercise and we must note that a lawmaking body, particularly in statutes of fiscal nature, is duly empowered to undertake such an exercise as long as the concern of legislative competence does not come into doubt. Upon the law coming into force, it becomes operative in the public domain and opens itself to any review under Part III as and when it is found to be plagued with infirmities. Upon being invalidated by the Court, the legislature is free to diagnose such law and alter the invalid elements thereof. In doing so, the legislature is not declaring the opinion of the Court to be invalid."
20. Thus, It is well settled that the declaration made by a judgment of Constitutional Court can be undone by a legislative or executive action only in permissive circumstances. In the case in hand, no such special circumstances have been carved out and, therefore, the act of the High Court in amending the Rules in the manner as detailed above cannot be countenanced.
21. The objection of respondent No.1 to the effect that challenge laid by the petitioner to the amendment carried in 2016 and also to the recruitment process initiated in January, 2019 is highly belated and thus suffers from the vice of delay and laches, deserves to be rejected. It is clearly borne from the record, rather it is admitted by the High Court that there was no need to advertise the posts of Assistant Programmer as the preferential right of ::: Downloaded on - 31/01/2022 22:56:14 :::CIS 13 selection, as per amended Rules, was to the System Officers working with the High Court. It was not published even on the website of the High Court. In .
absence of such publication, it cannot be understood as to how the petitioner could have gained the knowledge of the recruitment process initiated in January, 2019 and also of the amended Rules on the basis of which such process was undertaken. There is nothing on record to discredit the version of the petitioner that it was only in the month of March, 2020 that the petitioner noticed result of written examination published by High Court on its website in pursuance to the selection process undertaken on the basis of Circular No. HHC/Estt.7(50)/2014-2978-81, dated 23.01.2019. That being so, we have no hesitation to hold that the petitioner acquired the cause of action to challenge the impugned amendment to the Rules as well as recruitment process only when it came to her knowledge.
22. It is also well settled that absence of proper publicity to the proposed recruitments to public posts itself amounts to violation of equal opportunity in public employment. Reference can be made to judgment passed in Union Public Service Commission vs Girish Jayanti Lal Vaghela (2006) 2 SCC 482, wherein it has been held as under:-
"10. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment" or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement ::: Downloaded on - 31/01/2022 22:56:14 :::CIS 14 has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a .
written examination or interview or some other rational criteria for judging the Inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. (See B. S. Minhas vs. Indian Statistical Institute and others AIR 1984 SC
363)."
23. Similarly, in State of Bihar vs Upendara Narain Singh and others (2009) 5 SCC 65, Hon'ble Supreme Court has held as under:-
"13. The equality clause enshrined in Article 16 mandates that every appointment to public posts or office should be made by open advertisement so as to enable all eligible persons to compete for selection on merit Umesh Kumar Nagpal v. State of Haryana and Ors. ; Union Public Service Commission v. Girish Jayanti Lal Vaghela ; State of Manipur and Ors. v. Y. Token Singh and Ors. and Commissioner, Municipal Corporation, Hyderabad and Ors. v. P. Mary Manoranjani and Anr. . Although, the Courts have carved out some exceptions to this rule, for example, compassionate appointment of the dependent of deceased employees, for the purpose of this case it is not necessary to elaborate that aspect."::: Downloaded on - 31/01/2022 22:56:14 :::CIS 15
CONCLUSION
24. In the light of the above discussion, the petition is allowed. 2 nd .
amendment dated 01.10.2016 carried to the High Court of Himachal Pradesh Members of Technical Manpower (Computers) (Appointment, Conditions of Service and Conduct) Rules, 2014 prescribing preferential mode of appointment for the System Officers working under the e-Courts project for the post of Assistant Programmer is quashed and set aside. Consequently, the recruitment process for the post of Assistant Programmer initiated by the High Court of Himachal Pradesh vide Circular No. HHC/Estt.7(50)/2014-2978- 81, dated 23.01.2019 is also quashed and set aside.
25. The writ petition is accordingly disposed of in the aforesaid terms, so also the pending application(s), if any.
( Tarlok Singh Chauhan )
Judge
August 24, 2021 ( Satyen Vaidya )
(naveen) Judge
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