Himachal Pradesh High Court
_____________________________________________________________________ vs Director on 24 May, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Writ Petition No.6215 of 2023
.
Date of Decision: 24.05.2024
_____________________________________________________________________
Ex. Nk. Pawan Kumar
.........Petitioner
Versus
Director, Directorate of Sainik Welfare and Another
.......Respondents
Coram
For the Petitioner:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
Ms. Jeewan Kumar, Advocate.
For the respondents: Ms. Aanchal Singh, Advocate, vice Mr. Vinod
Chauhan, Advocate, for the respondent No.1.
Mr. Rajan Kahol, Additional Advocate General
for respondent No.2/State.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with the orders dated 05.06.2023 and 13.06.2023 (Annexure P-6 & P-8), whereby prayer made on behalf of the petitioner for inclusion of his name in the waiting panel for the year 2023 came to be rejected, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main reliefs:
"i. That kindly issue appropriate writ, orders, or directions including writ in the nature of certiorari quashing the letter dated ::: Downloaded on - 28/05/2024 20:32:17 :::CIS 2 05.06.2023 (Annexure P-6) and letter dated 13.06.2023 (Annexure P-
8) whereby representations of petitioner were being rejected.
ii. That kindly issue appropriate writs, orders, or directions including writ in the nature of mandamus directing respondents to .
include the name of petitioner in the panel of JOA (IT) for all upcoming vacancies for the post of JOA (IT).
iii. That kindly issue writs, orders, or directions whichever may be appropriate directing the respondent-department to produce relevant record pertaining to this matte; or"
2. Precisely, the facts of the case, as emerge from the record are that petitioner herein after his being superannuated/discharged from Army on 31.07.2020, registered himself with respondent No.1 through respondent No.2 for the purpose of re-employment on 13.10.2020. While getting himself registered with respondent No.1, petitioner opted for the post of JOA (IT), Panchayat Secretary and any 10+2 based post.
3. On 22.07.2022, petitioner on the basis of his seniority in the list was nominated for the post of JOA (IT) in the office of Deputy Commissioner, Kinnaur at Reckong Peo, District Kinnaur, Himachal Pradesh, but such offer was declined by petitioner on 28.08.2022 by citing medical reasons and adverse family circumstances. On 23.05.2023, petitioner visited the office of respondent No.1 and made representation regarding inclusion of his name in the panel. Afore prayer made on behalf of the petitioner came to be rejected vide communication dated 05.06.2023 on the ground that petitioner name has been deleted from the panel and he cannot be re-nominated.::: Downloaded on - 28/05/2024 20:32:17 :::CIS 3
4. On 28.05.2023, petitioner made another representation regarding inclusion of his name in the panel, however, same also came to be rejected vide communication dated 13.06.2023. In the aforesaid .
background, petitioner has approached this Court in the instant proceedings, praying therein for reliefs, as reproduced hereinabove.
5. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Jeewan Kumar, learned counsel for the petitioner is that though after deletion of the name of the petitioner from the panel drawn/prepared for a particular year for a particular post, petitioner cannot be re-nominated for such post, but certainly, his name is required to be reflected in waiting panel prepared for subsequent years. Mr. Jeewan Kumar, learned counsel for the petitioner fairly submits that admittedly petitioner had registered himself with respondent No.1 through respondent No.2 for the purpose of re-employment and had opted for the post of JOA(IT), Panchayat Secretary and any 10+2 based post and as such, vide order dated 22.07.2022, he was nominated for the post of JOA (IT) in the office of Deputy Commissioner, Kinnaur at Reckong Peo, District Kinnaur, which he was unable to join on account of adverse family circumstances.
6. Mr. Jeewan Kumar, learned counsel for the petitioner further argued that refusal, if any, by the petitioner to join the post of JOA (IT) in the office of Deputy Commissioner, Kinnaur at Reckong ::: Downloaded on - 28/05/2024 20:32:17 :::CIS 4 Peo, District Kinnaur, would not debar him from fresh registration, if any, rather, on the basis of registration made by him, he can be considered for appointment to the post of JOA (IT), Panchayat .
Secretary and any 10+2 based post in another departments in all subsequent years. Mr. Jeewan Kumar further submits that since petitioner declined the appointment offered to him vide communication dated 28.08.2022 in the office of Deputy Commissioner, Kinnaur at Reckong Peo, District Kinnaur, he cannot be considered for appointment in another department in that particular year, but certainly prayer made on his behalf for inclusion of his name in the waiting panel for subsequent years cannot be rejected.
7. While inviting attention of this Court to information received by the petitioner under Right to Information Act, pursuant to his having made application on 25.03.2023 (Annexure P-12), Mr. Jeewan Kumar submitted that as per procedure for nomination of Ex-
Servicemen to Government posts, if Ex-Servicemen on nomination fails to join the concerned department, his name will be deleted from the existing panel, but he will be eligible for the same and others posts, for which he has opted in X-10 card, but for that purpose, he has to re-appear for document check/screening for same post and other posts, as per his National Classification of Occupations (NCO) code. He submitted that after petitioner's having declined to join ::: Downloaded on - 28/05/2024 20:32:17 :::CIS 5 against the post of JOA (IT), pursuant to his nomination made on 22.07.2022, respondents ought to have included the name of the petitioner in the waiting panel prepared for subsequent years, so that .
his name in those subsequent years is considered along with other eligible candidates for the post in question, but certainly after his denial to join the post in question, he cannot be compelled to get himself registered afresh.
8. While inviting attention of this Court to the reply filed by respondent No.1, Ms. Aanchal Singh, Advocate, submitted that respondent conducts the interview according to R & P Rules and essential qualification laid down by the employers and draws an annual waiting panel on the basis of seniority of Ex-Servicemen in a calendar year, as per the Policy decisions of the Government. She submitted that since petitioner after his being nominated for the post of JOA (IT) refused to join, prayer made on his behalf to offer aforesaid post in another department was rightfully not considered, rather, petitioner can again appear for document check/screening against any other post, as per his NCO code, as and when Ex-Servicemen are called for the post. While inviting attention of this Court to office order dated 21.02.2009 (Annexure R-1), Ms. Aanchal Singh, learned counsel for respondent No.1 submitted that Ex-Servicemen once nominated/appointed on contractual basis can be considered again against higher post against a vacancy reserved for Ex-Servicemen, on ::: Downloaded on - 28/05/2024 20:32:17 :::CIS 6 the basis of their seniority in the 'Live Register' till they are appointed on regular basis, but certainly, Policy does not permit multiple nominations of the candidates to another department on the same .
post.
9. Having heard learned counsel representing the parties and perused material available on record, this Court finds that petitioner after his being discharged from Army got himself registered with respondent No.1 through respondent No.2 on 13.10.2020 for the purpose of re-employment and he opted for the post of r JOA (IT), Panchayat Secretary and any 10+2 based post. Though, as per aforesaid registration, petitioner opted to be appointed against the post of JOA (IT), Panchayat Secretary, but he also gave consent for being appointed against the post where basic qualification is 10+2.
Admittedly, on 22.07.2022, petitioner on the basis of aforesaid registration, came to be nominated for the post of JOA (IT) in the office of Deputy Commissioner, Kinnaur at Reckong Peo, District Kinnaur, which he failed to join, on account of medical reasons. Admittedly, as per Policy, as taken note hereinabove, petitioner after being nominated for the post of JOA (IT) in the office of Deputy Commissioner, Kinnaur at Reckong Peo, District Kinnaur, cannot ask for consideration of his case for the post of JOA (IT) in other department, especially the departments, which he had not originally opted at the time of registration. But certainly, as per Policy and reply filed by ::: Downloaded on - 28/05/2024 20:32:17 :::CIS 7 respondents, the Ex-Servicemen once nominated/appointed on contractual basis can be considered against higher post against the vacancies reserved for Ex-Servicemen, on the basis of his seniority in .
the 'Live Register', however, in the case at hand, there is no question of offering appointment, if any, to the higher post and as such, seniority in Live Register, if any, may not be of much relevance, rather, in the case at hand, precise grouse of the petitioner is that once he failed to join pursuant to his being nominated against the post of JOA (IT) in the office of Deputy Commissioner, Kinnaur at Reckong Peo, District Kinnaur, respondents ought to have included his name in the waiting list prepared for the subsequent years, so that in subsequent years, he could again be considered for the post of JOA (IT) in various departments.
10. Perusal of impugned orders dated 05.06.2023 and 13.06.2023 (Annexure P-6 and P-8), if are read juxtaposing, representation (Annexure P-7) filed by the petitioner dated 28.05.2023, this Court finds that prayer made on behalf of petitioner has been actually misconstrued, because through aforesaid representation, he never requested for his being nominated to some other department, pursuant to his recommendation made on 22.07.2022, rather, through representation, as detailed hereinabove, he simply stated that on account of his having refused to join on 22.07.2022, though his name may be deleted from the panel prepared for that particular year, ::: Downloaded on - 28/05/2024 20:32:17 :::CIS 8 but same may be kept alive for waiting panel prepared for subsequent years, so that in subsequent years, his name can be considered for the post in question.
.
11. Careful perusal of orders dated 05.06.2023 and 13.06.2023 (Annexure P-6 and P-8) reveals that respondents have refused to re-nominate petitioner's name to another department against the post of JOA (IT), in terms of provisions contained in Policy of re-nomination made by Ex-Servicemen Department vide its office letter No.DSW/Emp Ex.Cell No.2-5/11/953-956 dated 05.06.2023. At no point of time, petitioner has ever prayed to re-nominate him to some another department against the post of JOA (IT) pursuant to his nomination made vide order dated 22.07.2022, rather his precise prayer is that after his refusal to join against the post of JOA (IT) in the office of Deputy Commissioner, Kinnaur at Reckong Peo, District Kinnaur, his name may be included in the waiting panel prepared for the subsequent years, so that he is considered for the vacancy, if any, arises in the subsequent years.
12. Careful perusal of Standing Operating Procedure on functioning of special Ex-Servicemen Cell, Hamirpur, Himachal Pradesh (Annexure R-2) clearly reveals that if Ex-Servicemen on nomination fails to join the concerned department, his name will be deleted from the existing panel, but he shall be eligible for the same and other posts for which he has opted in X-10 card, but for that ::: Downloaded on - 28/05/2024 20:32:17 :::CIS 9 purpose, he has to reappear for document check/screening for same post or other posts, as per his National Classification of Occupations (NCO) code. In this regard, it would be apt to take note of Clause 12 of .
aforesaid Standing Operating Procedure, which reads as under:-
12. Procedure for Nomination of Ex-Servicemen to Govt Posts.
The following procedure is adopted for nomination of ex-servicemen:-
(a) After finalisation of panel, the details of panel are uploaded on the website of Sainik Welfare Department.
(b) As and when vacancies are received from Govt departments, the seniority of requisition of the Govt. departments, which is based on date of requisition letter of the department, is considered against the panel seniority of the Ex-servicemen for that post. No choice of department is given to the ex-servicemen being nominated.
Nomination is purely on the panel seniority of the individual and corresponding date of receipt of requisition seniority of the department for the post.
c) on nomination, if ex-servicemen failed to join the concerned
department/unwilling to join/rejected by the
department/employer,his name will be deleted from the existing panel, however, he will be eligible for the same and other posts for which he has opted in X-10 card but he has to reappear for document check/screening for same post or other posts as per his National Classification of Occupations (NCO) Code.
13. Since, in the case at hand, petitioner failed to join the concerned department, no illegality can be said to have been committed by the respondents while deleting his name from the existing panel drawn for that particular year i.e. 2021, but yet, petitioner will remain eligible for same and other post, which he had opted in X-10 card for subsequent years and for that purpose, he may ::: Downloaded on - 28/05/2024 20:32:17 :::CIS 10 have to reappear for documents check/screening. Since, petitioner at no point of time ever prayed for his being re-nominated to another department on the same post, rather, his precise prayer is/was for .
inclusion of his name in the waiting panels prepared for subsequent years, impugned orders dated 05.06.2023 and 13.06.2023 (Annexure P-6 and P-8) cannot be said to be sustainable in the eye of law and as such, same deserves to be quashed and set aside.
14. Consequently, in view of detailed discussion, as made hereinabove, this Court finds merit in the present petition and accordingly, same is allowed. Impugned orders dated 05.06.2023 and 13.06.2023 (Annexure P-6 and P-8) are quashed and set aside with the direction to respondents to include the name of the petitioner in the waiting panel prepared for subsequent years for the post of JOA (IT), so that his candidature is also considered for the post in question in subsequent years, on the basis of documents, which he may adduce on record, at the time of document check. Pending applications, if any, also stand disposed of.
May 24, 2024. (Sandeep Sharma),
Rajeev Raturi Judge
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