Himachal Pradesh High Court
_____________________________________________________________________ vs Himachal Pradesh State Electricity ... on 23 May, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Writ Petition No.4922 of 2022
.
Date of Decision: 23.05.2024
_____________________________________________________________________
Amit Kumar
.........Petitioner
Versus
Himachal Pradesh State Electricity Board Ltd. & Others
.......Respondents
Coram
For the Petitioner:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
Ms. Parul Negi, Advocate.
For the respondents: Mr. Piyush Rathore, Advocate, for the
respondent No.1.
Mr. Angrez Kapoor, Advocate, for the
respondent No.2.
Mr. Sandeep K. Pandey, Advocate, for the
respondent No.3.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with the notification dated 22.06.2022 (Annexure P-9), issued by Himachal Pradesh Staff Selection Commission, Hamirpur, thereby declaring result of 90 posts of Junior Draughtsman (Civil/Electrical), on contract basis, inasmuch as name of the petitioner is not included in the select list, as detailed in above, petitioner has approached this Court in the instant ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 2 proceedings filed under Article 226 of the Constitution of India, praying therein for following main reliefs:
"(i) Issue writ of certiorari to quash Annexure P-9 i.e. .
notification dated 22.06.2022 qua the respondent No.3.
(ii) Issue writ of mandamus directing the Respondent authorities to award one(1) mark to the petitioner for the NCC certificate and further directed the respondents to select the petitioner for the post of Junior Draughtsman (Civil/Electrical)."
2. Precisely, the facts of the case, as emerge from the pleadings adduced on record by respective parties are that respondent No.2 i.e. Himachal Pradesh Staff Selection Commission, Hamirpur vide an advertisement bearing No.36-3/2020 dated 21.09.2020 invited applications for various posts, including 90 posts of Junior Draughtsman (Civil/Electrical) (Post Code 838), on contract basis (Annexure P-1). Along with aforesaid advertisement, entire mode of selection also came to be advertised. Besides the essential qualification, as prescribed in advertisement and mode of selection, 15 marks criteria of 11 points also came to be notified vide aforesaid advertisement.
3. Petitioner herein being fully eligible, applied for the post of Junior Draughtsman (Civil) (i.e. Post Code 838) under the category of Scheduled Caste (unreserved). On the basis of online application submitted by petitioner herein, respondent No.2 issued Roll ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 3 No.838002508 to the petitioner, enabling him to appear in written examination scheduled for 25.07.2021. On 25.11.2021, respondent No.2 declared the result of written objective type screening test, .
wherein petitioner came to be declared successful. Since, documents proposed to be relied upon by the candidate concerned were to be seen/evaluated by the Selection Committee, after declaration of result of written test, petitioner herein on the basis of call given by respondent No.2 made himself available before respondent No.2 on 08.01.2022 for evaluation of documents. Besides Certificates of educational qualification, petitioner submitted one Certificate of NCC, for which, one mark was provided under 11 point prescribed parameter. However, fact remains that petitioner herein was unable to make place for himself in the final merit-list declared vide notification dated 22.06.2022 (Annexure P-9). As per aforesaid final merit list, last candidate selected against the post of Junior Draughtsman (Civil/Electrical) obtained 43.83 marks, whereas, petitioner herein was awarded 43.06 marks in total.
4. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Ms. Parul Negi, learned counsel for the petitioner is that once petitioner had submitted Certificate of NCC, he ought to have been given one mark, as a result thereof, petitioner would have got 44.06 marks, which is higher than ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 4 last selected candidate i.e. respondent No.3, who secured 43.83 marks in total.
5. Pursuant to notices issued in the instant proceedings, .
respondent No.1 has filed reply, whereas despite sufficient opportunity, no reply has been filed on behalf of respondents No.2 and
3. Though, repeatedly, Mr. Angrez Kapoor, learned counsel for respondent No.2 submitted before this Court that reply on behalf of respondent No.2 stands filed and as such, matter was repeatedly adjourned, but fact remains that as per report of Registry, no reply of respondent No.2 is available on record. However, this Court finds from the record that during pendency of petition at hand, Mr. Angrez Kapoor, learned counsel for respondent No.2 had placed on record instructions dated 28.11.2023 issued under the signatures of Administrative Officer, HPRCA-cum-Officer on Special Duty, erstwhile H.P. Staff Selection Commission, Hamirpur (H.P.).
6. Having perused reply filed on behalf of respondent No.1 and instructions submitted on behalf of respondent No.2, this Court finds that facts as noticed hereinabove, are not in dispute, rather stand admitted. Respondent No.1 in its reply has stated that though it had made requisition to respondent No.2 to make appointments of Junior Draughtsman (Civil/Electrical) in the Department of Electricity Board, but it had no role, if any, in selection of candidates.
Instructions contained in communication dated 28.11.2023 placed on ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 5 record by learned counsel representing respondent No.2 clearly reveals that petitioner herein being fully eligible was permitted to participate in screening test and after his being declared successful, he was called .
for evaluation of documents. As per aforesaid communication, on the day of evaluation/counselling, petitioner submitted two Certificates of NCC, which were for participation in annual training camp from 11.08.2005 to 20.08.2005 and 04.11.2006 to 13.11.2006, but same were not considered for allocating one mark, as same were not have been found to be submitted on prescribed format. It clearly emerges from the instructions filed by respondent No.2 that petitioner in total secured 43.06 marks i.e. 40.50 marks in subjective type written test and 2.56 marks in evaluation of 15 marks prescribed parameter (1.56 marks for essential qualification and 01 mark for landless family, having land less than one hectare).
7. The question, which precisely needs to be adjudicated in the instant proceedings is "whether one mark could have been denied by respondent No.2 to the petitioner, who admittedly made available two Certificates of NCC, suggestive of the fact that he had participated in NCC Camp?" Though, perusal of instructions dated 28.11.2023 nowhere reveals plausible explanation, if any, on behalf of respondent No.2 for rejection of NCC Certificates furnished by petitioner, but Mr. Angrez Kapoor, learned counsel for respondent No.2 strenuously argued that since NCC Certificates furnished by petitioner were with ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 6 regard to his participation in the camp, those were rightly not considered, rather, to have benefit of one mark, petitioner should have made available NCC 'A' Certificate issued under the signatures of .
Deputy Director General, National Cadet Corps.
8. Before ascertaining correctness of aforesaid submission made by learned counsel for respondent No.2, it would be apt to take note of Part-II (evaluation of 15 marks criteria prescribed in the advertisement) (available at page No.36 of the paper-book):-
Part-II (Evaluation of 15 Marks) Evaluation of 15 marks in respect of shortlisted candidates after qualifying written objective screening test/subject tests and skill tests/physical/practical tests, if any, will be carried out as per the following criteria:-
Sr. Detail of Criteria of 15 marks Marks Competent authority to No. issue the certificates
1. Weightage for the minimum educational 2.5 (two & a half) Concerned qualification as per the Recruitment & University/Board Promotion Rules, (Percentage of marks obtained in the educational qualification would be multiplied by 0.025, For example, an individual has secured 50% marks in the required educational qualification, he/she will be allowed 1.25 marks (50 X 0.025 = 1.25)
2. Belonging to notified Backward Area or 1(one) Concerned Panchayat, as the case may be SDO(C)/Tehsildar/Naib Tehsildar
3. Land less family / family having land 1(one) Concerned less than 1 Hectare to be certificate by SDO(C)/Tehsildar/Naib the concerned Revenue Authority Tehsildar
4. Non-employment Certificate to the effect 1(one) Concerned that none of the family members is in SDO(C)/Tehsildar/Naib Government/Semi Government. Tehsildar or concerned Panchayat Secretary/Sahayak and counter signed by concerned Gram Panchayat Pradhan/Up Pradhan.
5. Differently abled persons with more than 1(one) Health & Family Welfare 40% impairment/disability/infirmity authorities/Medical Boards ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 7
6. NSS (atleast one year), certificate holders 1(one) Concerned Head of in NCC/The Bharat Scout and Guide. Institution. Certificate of Medal winner in National level sports medal winners will be competitions issued by concerned District Youth Services and Sports .
Officer/Head of Institution.
7. BPL family having family annual income 2(two) Concerned BDO by taking (from all sources) below Rs.40,000/- or the authenticated entries in as prescribed by the Govt. from time to the "Parivar Register" as the time. basis of such certificate or concerned Panchayat Secretary/Sahayak and countersigned by concerned Gram Panchayat Pradhan.
8. Widow/divorced/destitute/single woman 1(one) Concerned BDO by taking the authenticated entries in the "Parivar Register" as the basis of such certificate.
9. Single daughter/Orphan 1(one) Concerned BDO by taking the authenticated entries in r the "Parivar Register" as the basis of such certificate.
10. Training of at least 6 months duration 1(one) Competent authority of the related to the post applied for from a concerned recognized University/Institution University/Institution.
11. Experience up to a maximum of 5 years 2.5 (two & a half) Competent authority of the in Govt./Semi-Govt. Organization concerned Govt./Semi Govt.
relating to the post applied for (0.5 mark organization. only for each completed year).
9. Careful perusal of aforesaid parameters clearly reveals that apart from marks obtained in written objective screening test, 15 marks in total were to be allotted to the candidates under various heads. Clause 6 of aforesaid parameters clearly reveals that one mark each was to be awarded to NSS/NCC Certificate holders. In the aforesaid evaluation criteria, it has been also provided that Certificates pressed into service should have been issued under the signature of authority, as prescribed in the criteria itself. Against Clause 6, which ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 8 provides one mark for NSS/NCC Certificate, suggest that Certificate should be signed by the concerned Head of Institution.
10. Mr. Angrez Kapoor, learned counsel for respondent No.2, .
fairly admitted that though petitioner had made available two NCC Certificates, suggestive of the fact that he had participated in camp, but since those Certificates were not signed by concerned Head of Institution, those were not considered for granting one additional mark. As per Mr. Angrez Kapoor, had the petitioner submitted NCC "A" Certificate, issued under the signature of Deputy Director General, NCC, who is the competent authority to issue such Certificates, respondent No.2 would have awarded one mark.
11. To the contrary, Ms. Parul Negi, learned counsel for the petitioner while making this Court peruse aforesaid Clause 6, vehemently argued that there is no mention that NCC Certificate should be of 'A' category, rather it only talks about NCC Certificate issued by concerned Head of Institution. She submitted that NCC Certificate placed on record by petitioner are the testimony of his having participated in NCC Camp, which was organized under the control of Camp Commandant. She submitted that Camp Commandant is the prescribed authority to issue NCC Certificate.
12. To substantiate her aforesaid submission, she made available communication dated 24.04.2024 issued by NCC, Group Headquarters, thereby supplying information to the petitioner under ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 9 Right to Information Act, pursuant to her having made request vide communication dated 09.04.2024. Perusal of aforesaid communication reveals that petitioner specifically asked under Right to Information .
Act that, 'who is the issuing authority of the NCC Certificate, that is Camp Certificate and 'A' Certificate?' Answer to this question is Commanding Officer of the Unit. In answer to second question that, 'is Camp Certificate issued in favour of the petitioner is of same authority?' NCC Headquarter has replied that same has been issued by the competent authority. Most importantly, vide aforesaid information, it has been affirmed that Director General of NCC is not the competent authority to issue the NCC Certificate.
13. Having carefully perused Clause 6 of the parameters, as extracted hereinabove, this Court is persuaded to agree with Ms. Parul Negi, learned counsel for the petitioner that there was no mandate, if any, to produce NCC 'A' Certificate, rather, categorical condition was with regard to NCC Certificate, meaning thereby, NCC Certificates placed on record by the petitioner at the time of evaluation, ought to have been considered for grant of one mark.
14. Though, Mr. Angrez Kapoor, learned counsel for respondent No.2 vehemently argued that since NCC Certificates placed on record were not issued by the concerned Head of Institution, same could not be taken into consideration for awarding one mark, however, such plea of him deserves outright rejection on account of information ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 10 provided by NCC Group Headquarters to the petitioner under Right to Information Act.
15. At this stage, it would be apt to take note of .
communication dated 24.04.2024, which is reproduced herein below:
"APPEAL UNDER SECTION-19 OF RTI ACT, AGAINST THE INFORMATION REGARDING ISSUING THE NCC CERTIFICATE.
1. Pl refer your letter dt 09 Apr 2024.
2. Point-wise info sought vide your letter is as under:-
(a) Who is the issuing authority of the NCC Certificate, that is Camp Certificate & A certificate. -Commanding Officer of Unit.
(b) Is my Camp Certificate are issued by the same authority, who is competent to issue A Certificate. - Yes.
(c) Is the Director General of NCC issued the NCC Certificates -
No.
(d) r Who is the Head of Institution of NCC. - DGNCC.
(e) Is the commandant being the Head of concerned Institution.
- Question is not clear.
(f) Is the NCC Head of NCC Institution issued the certificate of NCC. - Yes.
SD/-
(Abhishek Chaturvedi) Col Trg Offr For Gp Cdr"
16. It has been categorically stated in the aforesaid information that competent authority to issue the NCC Camp Certificate and 'A' Certificate is Commanding Officer of the Unit and not Deputy Director General, as claimed by respondent No.2.
Aforesaid information further reveals that Camp Certificate are issued by the same authority, who is competent to issue 'A' Certificate.
Meaning thereby that NCC 'A' Certificate is also issued by Commanding Officer of Unit, who is also competent to issue Camp ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 11 Certificate. In the present case, two Certificates were made available by the petitioner for his having participated in the NCC Camp, signed by Camp Commandant, who is the competent authority to issue such .
Certificates.
17. Leaving everything aside, this Court finds from the record that petitioner beside possessing two Certificates of his having participated in the NCC Camp, had also in his possession NCC 'A' Certificate, which he had not made available at the time of evaluation of documents, for the reason that under Clause 6, it was not clearly specified that which NCC Certificate is required to be submitted for claiming one mark.
18. Careful perusal of Annexure P-7 (available at page No.60 of the paper-book) reveals that petitioner was also awarded NCC 'A' Certificate in the examination held in the year 2007. But since, it was not specifically provided under Clause 6 of parameter that NCC 'A' Certificate would only be considered for awarding one mark, petitioner herein instead of making available aforesaid NCC 'A' Certificate issued under the signature of Deputy Director General, National Cadet Corps, submitted two Certificates of his having participated in Camp, duly signed by Camp Commandant. Since, clause 6 of parameters, as detailed hereinabove, is completely silent with regard to nature of NCC Certificate required to be produced at the time of evaluation by candidate for claiming one additional mark coupled with the fact that ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 12 petitioner at the time of evaluation made available two Certificates of NCC, suggestive of the fact that he had participated in NCC Camps, there was no occasion for respondent No.2 to not to award one .
additional mark. Moreover, it is not in dispute that NCC 'A' Certificate, which ultimately came to be issued in favour of petitioner in the year 2007, could only be issued on the basis of two Certificates of participation in NCC Camps, which petitioner admittedly made available during evaluation of the documents.
19. There r is another aspect of the matter that once Certificates made available by the petitioner during evaluation were not found to be in conformity with the provisions contained under Clause 6 by respondent-Commission, respondent-Commission ought to have provided adequate opportunity to petitioner to produce NCC 'A' Certificate issued in his favour, under the signature of Deputy Director General, NCC, which he actually possessed, as is evident from careful perusal of Annexure P-7.
20. There is another interesting document available on record, suggestive of careless and negligent attitude of respondent-
Commission in scrutiny of documents. Vide communication dated 11.04.2022 (Annexure P-11), PIO-cum-Superintendent, H.P. Staff Selection Commission, Hamirpur made available to petitioner document containing therein details with regard to evaluation of 15 ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 13 marks (available at page No.76 of the paper-book), which reads as under:
"Name of Post: Junior Draughtsman (Post Code: 838) Roll No.838002508 .
HIMACHAL PRADESH STAFF SELECTION COMMISSION, HAMIRPUR - 177001.
(EVALUATION PART OF 15 MARKS)
Sr. Detail of criteria of 15 Marks Max Submitted Accepted Marks Reason for Remarks
No. Marks Yes/No Yes/No Awarded non
acceptance
i) Weightage for the minimum 2.5 Yes Yes 1.56
educational/professional
educational qualifications.
ii) Belonging to notified 1 No - -
Backward Area of Panchayat,
as the case may be
iii) Land less family/family 1 Yes Yes 1.00
having land less than 1
Hectare to be certified by the
concerned
r Revenue
Authority
iv) Non-employment Certificate 1 No - -
to the effect that none of the
family member is in
Government/Semi
Government Organization
v) Differently abled persons 1 No - -
with more than 40%
impairment/disability/infirmit
y
vi) NSS (at least one 1 Yes NA - NA 168-1
year)/Certificate
holders/NCC/The Bharat
Scout and Guide, Medal
winner in National level
Sports competitions
vii) BPL family having annual 2 No - -
income (from all sources)
below Rs.40,000/- or as
prescribed by the Govt. from
time to time
viii) Widow/divorced/ 1 No - -
destitute/single woman
ix) Single daughter/Orphan 1 No - -
x) Training of at least 6 months 1 No - -
duration related to the post
applied for from a recognized
University/Institution.
::: Downloaded on - 28/05/2024 20:31:59 :::CIS
14
xi) Experience up to maximum 2.5 No - -
of 5 years in Govt./Semi-
Govt. Organization relating
to the post applied for (0.5
mark only for each
.
completed year).
Grand Total 15 2.56
Mark obtained (in figure & in words) 2.56 (Two Point Five Six only)"
21. Perusal of aforesaid document clearly reveals that against column (vi), where provision has been made to award mark to the NSS/NCC Certificate holder, respondent-Commission has though admitted factum with regard to petitioner having furnished NCC Certificate, but has nowhere objected to applicability of the same, rather, against such column, 'NA' has been mentioned, meaning thereby that 'not applicable'. Perusal of aforesaid document nowhere suggest that petitioner herein was provided with an opportunity to rectify his mistake. Since Clause 6 of the parameters, as extracted hereinabove, nowhere specifically talks about NCC 'A' Certificate, rather, it simply provides for production of NCC Certificate, respondent-Commission after having perused NCC Certificate produced by petitioner, ought to have provided him an opportunity to produce NCC 'A' Certificate, which was admittedly in his possession, at the time of evaluation of documents.
22. At this stage, it would be apt to take note of judgment passed by Delhi High Court in case titled as Shazia Kalim Vs. Union ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 15 of India and Others, Writ Petition (Civil) No.4318/2022 and Civil Miscellaneous Application No.12921/2022, wherein on similar fact and circumstances, direction came to be issued to the department .
concerned for considering the candidature of the petitioner. In the case before Delhi High Court, petitioner had presented her mark sheet bearing the stamp of the college and signatures of the college Principal. However, since she could not produce her degree at the time of verification of documents, prior to interview, she was not permitted to appear in the interview. Since petitioner's request for extension of time to produce degree via e-mail was not answered, Delhi High Court intervened and provided adequate relief to the candidate concerned.
Relevant Para of the said judgment reads, as under:-
"24. In support of her case, petitioner has also placed reliance upon DOPT OM No. 35015/2/93-Esst(d) Dated 09.08.1995 to submit that at the request of a candidate two months time can be granted. In our considered opinion the aforesaid OM is in respect of extension of time pursuant to "appointment" to Central Civil Services and due to delay in joining, revival of offers of appointment and determination of seniority. Pertinently, this OM is in extension of earlier OM NO. 9/27/71-Estt (D) dated 06.06.1978 with respect to issuance of offer of appointment and contents thereof; whereas in the present case the petitioner was sent call up letter for 'interview' and was not permitted to appear in interview and does not relate to 'appointment'. Hence, this Notification is of no support to the case of petitioner.
25. Applying the dictum of Supreme Court in afore-noted cases to the case in hand, we find that petitioner was a graduate on the day her interview was scheduled on 29.01.2022. She had presented her marks-sheets bearing authenticated stamp and signature of the college Head/Principal, however since she could not produce her ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 16 degree at the time of verification of documents prior to the interview, she was not permitted to appear in the interview. The fact remains that petitioner's degree was under corrections before the concerned University and also the final year/semester students, who were yet to .
graduate were permitted to produce their degree at the time of commencement of the course. So, there was no bar upon the respondents to extend the similar concession to petitioner. Even petitioner's request for extension of time to produce her degree via e- mails remained unanswered. This Court has been informed that the course for which petitioner sought admission, has already commenced, but in view of the fact that respondents have hypo technically denied opportunity to petitioner to present her degree at the stage when final/semester year students were permitted to show the same at the commencement of the course, we hereby direct the respondents to forthwith issue a fresh call letter for SSB interview for course of SSCW (NT)-29 (APR 2022) and constitute a fresh panel to interview petitioner within two weeks."
23. Reliance is also placed on a judgment of Hon'ble Apex Court in case titled Dolly Chhanda Vs. Chairman, JEE and Others, (2005) 9 SCC 779, wherein, it has been held as under:-
"7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 17 not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature. XXXXXXX .
9. The appellant undoubtedly belonged to reserved MI category. She comes from a very humble background, her father was only a Naik in the armed forces. He may not have noticed the mistake which had been committed by the Zilla Sainik Board while issuing the first certificate dated 29.6.2003. But it does not mean that the appellant should be denied her due when she produced a correct certificate at the stage of second counselling. Those who secured rank lower than the appellant have already been admitted. The view taken by the authorities in denying admission to the appellant is wholly unjust and illegal.
10. The appellant had qualified in the JEE-2003 but the said academic year is already over. But for this situation the fault lies with the respondents, who adopted a highly technical and rigid attitude and not with the appellant. We are, therefore, of the opinion that the appellant should be given admission in MBBS course in any of the State medical colleges in the current academic year."
24. For the discussion made hereinabove, as well as law taken into consideration, this Court is of the definite view that great injustice has been done to the petitioner, inasmuch as his Certificate of NCC produced at the time of evaluation of documents has not been considered by the respondent-Commission, as a result thereof, he despite being more meritorious than respondent No.3, has been denied selection.
25. Next question, which needs to be considered is that now, on account of inclusion of petitioner's name in select list, pursuant to directions contained in the judgment at hand, respondent No.3 may ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 18 have to vacate the place. Mr. Sandeep K. Pandey, learned counsel for the respondent No.3, vehemently and rightly argued that there is no fault, if any, of private-respondent, rather, he came to be offered .
appointment on the basis of merit-list prepared by the respondent-
Commission. It is none of the case of parties that respondent No.3 secured place in merit-list on the basis of misrepresentation, if any, made by him, rather, mistake, if any, is of respondent-Commission and beneficiary of such mistake is respondent No.3.
26. In the case at hand, respondent No.3 cannot be said to be at fault, rather, it is the department, which has offered appointment to him and as such, it would too harsh, if he is ordered to be removed from service. At the same time, petitioner also cannot be denied the relief, as claimed by him in the instant petition, since he was fully eligible to be appointed against the post in question.
27. Reliance in this regard is placed upon judgment titled Vikas Pratap Singh and others Versus State of Chhattisgarh and others, (2013) 14 SCC 494, wherein taking note of the fact that the appellants (therein) had successfully undergone training and were serving the State for more than three years, were allowed to continue in service even though their selection was interfered with. Para 28 of the judgment, being relevant, is extracted hereinafter:-
"28. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent State ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 19 for more than three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent .
appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list."
28. Similar situation arose in Anmol Kumar Tiwari and others Versus State of Jharkhand and others, (2021) 5 SCC 424.
The Apex Court confirmed the decision of the High Court that had directed re-instatement of the writ petitioners after taking into account the fact that they were though beneficiaries of the select list that was prepared in an irregular manner, but were not responsible for the irregularities committed by the authorities in preparation of the said select list. Relevant para from the judgment reads as under:-
"11. Two issues arise for our consideration. The first relates to the correctness of the direction given by the High Court to reinstate the Writ Petitioners. The High Court directed reinstatement of the Writ Petitioners after taking into account the fact that they were beneficiaries of the select list that was prepared in an irregular manner. However, the High Court found that the Writ Petitioners were not responsible for the irregularities committed by the authorities in preparation of the select list. Moreover, the Writ Petitioners were appointed after completion of training and worked for some time. The High Court was of the opinion that the Writ Petitioners ought to be considered for reinstatement without affecting the rights of other candidates who were already selected. A similar situation arose in Vikas Pratap Singh case, where this Court considered that the Appellants-therein were appointed due to an error committed by the ::: Downloaded on - 28/05/2024 20:31:59 :::CIS 20 Respondents in the matter of valuation of answer scripts. As there was no allegation of fraud or misrepresentation committed by the Appellants therein, the termination of their services was set aside as it would adversely affect their careers. That the Appellants-therein had .
successfully undergone training and were serving the State for more than 3 years was another reason that was given by this Court for setting aside the orders passed by the High Court. As the Writ Petitioners are similarly situated to the appellants in Vikas Pratap Singh case, we are in agreement with the High Court that the Writ Petitioners are entitled to the relief granted. Moreover, though on pain of Contempt, the Writ Petitioners have been reinstated and are working at present."
29. This Court with a view to ensure that no injustice is caused to both the parties i.e. petitioner as well as private-respondent, specifically called upon respondent No.1-Himachal Pradesh State Electricity Board Limited, to have instructions that as of today, how many posts of Junior Draughtsman (Civil/Electrical) are lying vacant in the department. Pursuant to aforesaid direction issued by this Court, Mr. Piyush Rathore, learned counsel for respondent No.1 has made available communication dated 16.05.2024 issued under the signatures of Under Secretary, Chief Engineer (PCA) HPSEBL, Shimla-
4, perusal whereof reveals that as many as, 8 posts of Junior Draughtsman (Civil/Electrical) are lying vacant in the department.
Moreover, vide order dated 22.04.2022, this Court has already directed respondent-department to keep one post of Junior Draughtsman (Civil/Electrical) vacant.
::: Downloaded on - 28/05/2024 20:31:59 :::CIS 2130. Consequently, in view of detailed discussion, as made hereinabove, as well as law taken into consideration, this Court finds merit in the present petition and accordingly, same is allowed.
.
Respondents No.1 and 2 are directed to offer appointment to the petitioner against the post of Junior Draughtsman (Civil/Electrical) advertised vide recruitment notice bearing No.36-3/2020 dated 21.09.2020, but while doing so, appointment already given to private-
respondent No.3 shall not be disturbed, rather, same shall stand protected. Since, eight posts are already lying vacant, this Court sees no difficulty for respondents to adjust respondent No.3 against one of these posts. Since, petitioner has not worked against the office in question till date, he shall not be entitled to monetary benefits, but for the period, he was unable to join on account of discrepancies, as discussed hereinabove, he shall be considered on notional basis for seniority and continuity in service.
May 23, 2024. (Sandeep Sharma),
Rajeev Raturi Judge
::: Downloaded on - 28/05/2024 20:31:59 :::CIS