Himachal Pradesh High Court
Sushil Kumar Sharma vs State Of Himachal Pradesh & Others on 24 March, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 24th DAY OF MARCH, 2022
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
.
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No. 7794 of 2021
Between:-
SUSHIL KUMAR SHARMA,
AGED 34 YEARS,
S/O SHRI AJIT KUMAR,
r to
R/O VPO BHATWARA, TEHSIL GHUMARWIN,
DISTRICT BILASPUR,
PRESENTLY WORKING AS
JUNIOR BASIC TEACHER,
GOVERNMENT PRIMARY SCHOOL, JANI,
NACHAR BLOCK, DISTT. KINNAUR-174028, H.P.
......PETITIONER
(BY MR. DILIP SHARMA, SENIOR ADVOCATE WITH
MR. MANISH SHARMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY EDUCATION,
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-2
2. DIRECTOR ELEMENTARY EDUCATION,
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-1
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3. DEPUTY DIRECTOR
ELEMENTARY EDUCATION,
GOVERNMENT OF HIMACHAL PRADESH
AT REKONG PEO, DISTRICT KINNAUR,
HIMACHAL PRADESH.
......RESPONDENTS
.
(MS. RITTA GOSWAMI, ADDITIONAL ADVOCATE GENERAL)
Whether approved for reporting? Yes.
This writ petition coming on for admission this day,
Hon'ble Ms. Justice Jyotsna Rewal Dua, passed the following:
ORDER
The petitioner seeks direction to the respondents (i) to treat him as notionally appointed Junior Basic Teacher (in short 'JBT') on contract basis in District Kinnaur, H.P. at par with the other candidates, who were appointed in District Kinnaur in February/March 2014 on the basis of counselling held on 14.02.2014 and (ii) consequently to consider him for regularization at par with other candidates so appointed on contract basis and regularized vide order dated 26.05.20117.
2. The pleaded factual matrix of the case is that: -
2(i) Respondent No.2, on 12.09.2012, issued orders to fill up 1308 posts of JBT in the State. Out of these 1308 posts, 20 were allotted to District Kinnaur. The process to fill up the posts of JBT was started in some districts, but had to be stopped thereafter due ::: Downloaded on - 28/03/2022 20:11:03 :::CIS -3- to stay imposed by this Court on making appointments. CWP No.784 of 2014 was filed in this Court, challenging the conditions imposed by the State in the advertisement to the effect that only those registered in the employment exchanges within the concerned .
districts, shall be eligible to apply. Subsequently, vide order dated 28.01.2014, passed in CWP No. 784 of 2014, the respondents were directed to allow the petitioners (therein) to participate in the selection process, however, their result was not to be declared, but rPursuant to to was to be produced in the Court in sealed cover.
2(ii) the above order, counselling conducted for the posts of JBT in District Kinnaur on 17.02.2014.
was The petitioner (herein) was also allowed to participate in the counselling. The candidates, who were registered in the Employment Exchange at Kinnaur and had participated in the counseling on 17.02.2014, were appointed as JBT on 26.02.2014.
They joined on different dates ranging from 26.02.2014 to 03.03.2014.
2(iii) S/Sh. Sarvinder, Rohit Kumar and Vijay Amrit Raj were also registered in the Employment Exchange Kinnaur. These three persons had also participated in the counselling held on 17.02.2014 alongwith the petitioner, but were not offered appointment. These three persons filed writ petitions No. CWP Nos. 2421 and 2422 of ::: Downloaded on - 28/03/2022 20:11:03 :::CIS -4- 2014, seeking notional appointments and seniority as JBT alongwith other candidates, who were appointed on 26.02.2014. S/Sh.
Sarvinder and Rohit Kumar (petitioners in CWP No. 2421) were appointed during the pendency of the writ petition as JBT and they .
joined on 27.08.2014 in District Kinnaur. Sh. Vijay Amrit Raj was appointed on 06.01.2015.
2(iv) CWP No. 784 of 2014 and other similar writ petitions were decided by the erstwhile H.P. Administrative Tribunal ( in short 'Tribunal') vide order dated 02.11.2016. The respondents (therein) were directed to consider all the candidates on their own merit irrespective of the fact whether they were registered in the employment exchange of the concerned district or had applied directly pursuant to the advertisement and in case they were successful, to offer them appointments in accordance with law. As a result of implementation of this order, the petitioner was appointed as JBT on 04.02.2017.
2(v) S/Sh. Sarvinder, Rohit Kumar and Vijay Amrit Raj, who had also participated in the same counselling, in which the petitioner had participated on 17.02.2014, represented to the respondents seeking their regularization as JBT on the basis of their notional dates of appointments as JBT i.e. 26.02.2014. The petitioner alongwith these three candidates submitted representation on ::: Downloaded on - 28/03/2022 20:11:03 :::CIS -5- 27.08.2017, seeking regularization. The above named three candidates were regularized alongwith other appointees in District Kinnaur w.e.f. 26.05.2017. The petitioner was eventually regularized vide order dated 16.05.2020. It is in the above background, that he .
had preferred the instant writ petition, seeking following main relief:-
" i) That the respondents department may kindly be directed to treat the petitioner as having been notionally appointed as JBT teacher on contract basis in District Kinnaur at par with other candidates, who were appointed in District Kinnaur in February/March 2014 on the basis of counselling process held in District Kinnaur on 14.02.2014 and consequently consider him for regularization at par with other candidates so appointed on contract basis and regularized vide order dated 26.05.2017, Annexure P-7, with all consequential benefits."
3. Contentions: -
3(i) Learned Senior Counsel for the petitioner submitted that the petitioner was not considered for the post of JBT at the relevant time because of an illegal condition in the advertisement, which required registration of the candidates in the employment exchange of the concerned district where the post of JBT was being filled up. It was on the basis of interim direction issued by this Court on 28.01.2014, the petitioner was allowed to participate in the counselling held on 17.02.2014. It was because of the interim order passed in the matter, his result was kept in sealed cover. The other ::: Downloaded on - 28/03/2022 20:11:03 :::CIS -6- candidates, who were registered in the Employment Exchange of District Kinnaur and had participated in the counselling held on 17.02.2014, were offered appointments in February/March 2014.
Even S/Sh. Sarvinder, Rohit Kumar and Vijay Amrit Raj were offered .
appointments in the year 2014/2015 after filing of writ petitions by them. These three persons were regularized in May, 2017 alongwith other contractual appointees, who were appointed in February/March 2014.
The gist of the arguments advanced by learned Senior Counsel for the petitioner is that the petitioner is similarly situated like the other three candidates, who have been regularized by notionally treating their dates of appointments at par with the appointees of same selection process held in February 2014.
Therefore, it has been contended that the petitioner is also entitled to be given notional appointment and seniority at par with other similarly situated candidates.
3(ii) Learned Additional Advocate General submitted that in compliance to the directions of the Tribunal, the petitioner was given appointment as JBT on 04.02.2017 on contract basis. Accordingly, as per the applicable government policy, his services were regularized as JBT on 16.05.2020 i.e. after completion of three years of contractual service. It has further been submitted that in the ::: Downloaded on - 28/03/2022 20:11:03 :::CIS -7- order passed by the Tribunal on 02.11.2016, there were no such directions for giving notional appointment and seniority to the petitioners (therein) at par with the other candidates appointed in February 2014. Therefore, the petitioner is not entitled to be treated .
at par with the other candidates, who were appointed in February/March 2014 on the basis of counselling held in District Kinnaur on 17.02.2014.
Observations: -
4. Having heard learned counsel for the parties, we are inclined to accept the prayer made by the petitioner.
4(i) It is not in dispute that the petitioner was allowed to participate in the counselling pursuant to the order dated 28.01.2014 passed in CWP No.784 of 2014. Accordingly, he participated in the counselling on 17.02.2014 alongwith various other candidates including the ones, who were registered in the Employment Exchange Kinnaur. In the order dated 28.01.2014, this Court though had directed the respondents to allow the petitioners (therein) to participate in the selection process, however, their result was not to be declared, but was to be produced in the sealed cover.
Consequently, the petitioner though participated in the counselling held on 17.02.2014 alongwith various other candidates, but his result was not declared. The result of other candidates, who were ::: Downloaded on - 28/03/2022 20:11:03 :::CIS -8- registered in the Employment Exchange Kinnaur, was declared and they joined in February/March 2014. CWP No.784 of 2014 and other similar writ petitions were eventually decided by the Tribunal on 02.11.2016. In this order, the condition in the advertisement that .
"only those registered in the employment exchanges within the districts shall be eligible to apply", was held to be bad. The respondents were directed to consider the candidates on the basis of their merit, irrespective of their registration in the employment exchange in the concerned district. It was pursuant to this order dated 02.11.2016, the petitioner was appointed as JBT on 04.02.2017.
4(ii) We also cannot lose sight of the fact that S/Sh. Sarvinder, Rohit Kumar and Vijay Amrit Raj, had also participated in the counselling on 17.02.2014. They were appointed on 27.08.2014, 27.08.2014 and 06.01.2014 respectively, and were regularized w.e.f. May 2017. It is evident that for purpose of regularization of services of these three persons, their initial dates of appointments were treated at par with that of other candidates.
4(iii) The issue raised in the instant petition is otherwise covered by the decision of this Court in LPA No.170 of 2014, titled Shri Balak Ram Versus State of Himachal Pradesh & others, decided on 19.11.2014, wherein it was held that when a candidate is ::: Downloaded on - 28/03/2022 20:11:03 :::CIS -9- deprived of appointment illegally, he is deemed to have been appointed right from the same date. The relevant part of the judgment is as under: -
.
" 8. The Apex Court in a case titled as Sanjay Dhar versus J & K Public Service Commission and another, reported in (2000) 8 Supreme Court Cases 182, has dealt with the issue and held that when a candidate is deprived of appointment illegally, he is deemed to have been appointed right from the same date. It is apt to reproduce paras 14 to 16 of the judgment herein:
"14. ............As the appellant participated in the process of selection protected by the interim orders of the High Court and was also successful having secured third position in the select list, he could not have been denied appointment. The appellant is, therefore, fully entitled to the relief of his appointment being calculated w.e.f. the same date from which the candidates finding their place in the order of appointments issued pursuant to the select list prepared by the J&K PSC for 1992- 93 were appointed and deserves to be assigned notionally a place in seniority consistently with the order of merit assigned by the J&K PSC.
15. We have already noticed the learned Single Judge having directed the appellant to be appointed on the post of Munsif in the event of his name finding place in the select list subject to the outcome of the writ petition which order was modified by the Division Bench in LPA staying the order of the learned Single Judge but at the same time directing one vacancy to be kept reserved. The High Court and the Government of J&K (Law Department) were not justified in bypassing the judicial order of the High Court and making appointments exhausting all available vacancies. The right of the appellant, if otherwise sustainable, cannot be allowed to be lost merely because of an appointment having been made wittingly or unwittingly in defiance of the judicial order of the High Court.
16. For the foregoing reasons the appeal is allowed. The judgment under appeal is set aside. It is directed that the appellant shall be deemed to ::: Downloaded on - 28/03/2022 20:11:03 :::CIS
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have been appointed along with other appointees under the appointment order dated 6-3-1995 and assigned a place of seniority consistently with his placement in the order of the merit in the select list prepared by J&K PSC and later forwarded to the Law Department. During the course of hearing the learned senior counsel for the appellant made a statement at the Bar that the appellant was .
interested only in having his seniority reckoned notionally in terms of this order and was not claiming any monetary benefit by way of emoluments for the period for which he would have served in case he would have been appointed by order dated 6-3-1995. We record that statement and direct that the appellant shall be entitled only to the benefit of notional seniority (and not monetary benefits) being given to him by implementing this order. The appeal is disposed of accordingly. The contesting respondents shall pay the appellant costs quantified at Rs. 5,000/-."
9. A learned Single Judge of this Court in a case titled as Hem Chand versus State of H.P. & others, reported in 2014 (3) Him L.R. 1962, has taken the same view. It is apt to reproduce paras 3 and 4 of the judgment herein:
"3. Admittedly, the appointment of the petitioner was delayed for no fault of his and came to be appointed only in the year 2009, that too after the intervention of this Court. The result of delayed appointment of the petitioner is that he has been paid less salary and denied the seniority over a long period of time. It has been consistently opined that in case a candidate is wrongly denied appointment for no fault on his part, he cannot be denied appointment from due date and consequential seniority. Reference in this regard can conveniently be made to 1996 (8) SCC 637, Pilla sitaram Patrudu & others vs. Union of India and others, 2000 (8) SCC 182 Sanjay Dhar vs. J&K Public Service Commission & another, 1991 (6) Vol. 76, Services Law Reporter 753, Hawa Singh Sangwan vs. Union of India & others and 1996 (6) vol. 116, Services Law Reporter, 335, Hawa Singh and others vs. The Haryana State Electricity Board. Moreover, it is not the case of the respondents that the petitioner was not ::: Downloaded on - 28/03/2022 20:11:03 :::CIS
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recommended to be appointed on 26.6.2004 but the only ground taken is that it was the Pradhan, Gram Panchayat Sawindhar, Tehsil Karsog, who delayed the appointment of the petitioner. This is the precise reason that the petitioner is entitled for the seniority from the date of offer of appointment, as held by the Division Bench of this Court in similar circumstances, in case titled as .
Chatter Singh vs. State of H.P. & others, CWP No. 188 of 2012-I:-
"3. No doubt, the petitioner joined duty only on 13.5.2003. But in his favour admittedly there is an order by the Appointing Authority on 8.8.2002 to give appointment, as has been noted by the Tribunal in Annexure P-1, order. It is that order, which has been upheld by the Tribunal and the direction issued by the Tribunal is for implementing the said order. Therefore, for all purposes, the petitioner shall be deemed to be appointed on 8.8.2002, on the date admittedly the petitioner was directed to be appointed by the Sub Divisional Magistrate. However, taking note of the fact that the petitioner has joined duly on 13.5.2003 after the order was issued to him, the entitlement of the petitioner for actual monetary benefit shall be only from 13.5.2003. In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to be appointed in the post of Gramin Vidya Upasak on 8.8.2002 for all purposes; but from 8.8.2002 to 13.5.2003, the benefits shall only be notional and from 13.5.2003, the petitioner shall be entitled to all monetary benefits."
4. In view of the exposition of the law referred to above, the petitioner is entitled to be treated as having been appointed as a Part Time Water Carrier at Government Primary School Alyas, Gram Panchayat, Sawindhar, Karsog-II, District Mandi from 30.6.2004, pursuant to the recommendation of the Government of H.P., as per order dated 26.6.2004 for the purpose of seniority. However, the entitlement of the petitioner for actual monetary benefits shall be only from ::: Downloaded on - 28/03/2022 20:11:03 :::CIS
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9.6.2009. In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to be appointed as Part Time Water Carrier from 30.6.2004 for all purposes, but from 30.6.2004 to 9.6.2009, the benefits shall only be notional and w.e.f. 9.6.2009, the petitioner shall be entitled to all monetary benefits."
.
4(iv) The petitioner is situated similarly viz-a-viz S/Sh.Sarvinder, Rohit Kumar and Vijay Amrit Raj. He is entitled to the same treatment given to these persons. In the facts of the case, the issue of considering the petitioner having been appointed notionally from the date his counterparts were appointed, is also covered in his favour by the decision referred to above.
Accordingly, the petition is allowed. The respondents are directed to treat the petitioner as having been notionally appointed as JBT on contract basis in District Kinnaur in February/March 2014 at par with other candidates who were appointed in District Kinnaur in February/March 2014, on the basis of counselling held on 17.02.2014. We also direct the respondents to accordingly consider the case of the petitioner for his regularization at par with the other candidates, who were so appointed on contract basis and regularized vide order dated 26.05.2017. This exercise be completed within three months from the date of production of certified copy of this judgment before the respondents.
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The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.
( Mohammad Rafiq ) .
Chief Justice
( Jyotsna Rewal Dua )
March 24, 2022 Judge
R. Atal
r to
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