Himachal Pradesh High Court
Parkash Chand & Ors vs State Of H.P. & Anr on 6 October, 2015
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 345 of 2010 along with CWPs No. 740 & 4390 of 2009, LPA Nos. 344 of .
2010, 13, 293 of 2011, 10 to 13 of 2015 CMP(M) No. 1084 of 2015 in LPST No. 20134 of 2015 Judgment reserved on: 21.9.2015.
Date of decision: October 6, 2015.
of
1. LPA No. 345 of 2010.
Parkash Chand & ors. ...... Appellants.
rt Vs. State of H.P. & anr. ...... Respondents.
For the appellants: Mr. Sanjeev Bhushan, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Romesh Verma, Additional Advocate Generals and Mr. Vikram Thakur, Deputy Advocate General.
2. CWP No. 740 of 2009.
Yash Pal Singh and others ...... Petitioners.
Vs. State of H.P. & anr. ...... Respondents.
For the petitioner: Mr. Ramesh Sharma, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Romesh Verma, Additional Advocate Generals and Mr. Vikram Thakur, Deputy Advocate General.
3. CWP No. 4390 of 2009.
Depender Kumar ...... Petitioner.
Vs.
State of H.P. & anr. ...... Respondents.
For the petitioner: None for the petitioner.
::: Downloaded on - 15/04/2017 19:03:14 :::HCHP
2
For the respondents: Mr. Shrawan Dogra, Advocate General
with Mr. Anup Rattan & Romesh Verma,
Additional Advocate Generals and Mr.
Vikram Thakur, Deputy Advocate General.
.
4. LPA No. 344 of 2010.
Sumit Kumar & ors. ...... Appellants.
Vs.
State of H.P. & ors. ...... Respondents.
of
For the appellants : Mr. Sanjeev Bhushan, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General
rt with Mr. Anup Rattan & Romesh Verma,
Additional Advocate Generals and Mr.
Vikram Thakur, Deputy Advocate General.
5. LPA No. 13 of 2011.
State of H.P. & Anr. ...... Appellants.
Vs. Prakash Chand & ors. ...... Respondents.
For the appellants: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Romesh Verma, Additional Advocate Generals and Mr.Vikram Thakur, Deputy Advocate General.
For the respondents: Mr.Sanjeev Bhushan, Advocate.
6. LPA No. 293 of 2011.
State of H.P. and ors. ...... Appellants.
Vs. Sh. Parveen Kumar & ors. ...... Respondents.
For the appellants: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Romesh Verma, Additional Advocate Generals and Mr.Vikram Thakur, Deputy Advocate General.
For the respondents: Mr.J.L. Bhardwaj, Advocate.
7. LPA No. 10 of 2015.
::: Downloaded on - 15/04/2017 19:03:14 :::HCHP 3State of H.P. and ors. ...... Appellants.
Vs. .
Veena Negi. ...... Respondent.
For the appellants: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Romesh Verma, Additional Advocate Generals and Mr. Vikram Thakur, Deputy Advocate General.
For the respondents: M/s Sanjeev Bhushan & J.L. Bhardwaj, of Advocates.
8. LPA No. 11 of 2015.
rt State of H.P. and ors. ...... Appellants.
Vs. Shri Layak Ram & ors. ...... Respondents.
For the appellants: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Romesh Verma, Additional Advocate Generals and Mr. Vikram Thakur, Deputy Advocate General.
For the respondents: M/s Sanjeev Bhushan & J.L. Bhardwaj, Advocates.
9. LPA No. 12 of 2015.
State of H.P. and ors. ...... Appellants.
Vs.
Manoj Kumar ...... Respondent.
For the appellants: Mr. Shrawan Dogra, Advocate General
with Mr. Anup Rattan & Romesh Verma,
Additional Advocate Generals and Mr.
Vikram Thakur, Deputy Advocate General.
For the respondent: M/s Sanjeev Bhushan & J.L. Bhardwaj, Advocates.
10. LPA No. 13 of 2015.
State of H.P. and ors. ...... Appellants.
Vs.
Amar Dev & ors. ...... Respondents.
::: Downloaded on - 15/04/2017 19:03:14 :::HCHP
4
For the appellants: Mr. Shrawan Dogra, Advocate General
with Mr. Anup Rattan & Romesh Verma,
Additional Advocate Generals and Mr.
Vikram Thakur, Deputy Advocate General.
.
For the respondents: M/s Sanjeev Bhushan & J.L. Bhardwaj, Advocates.
11. CMP(M) No. 1084 of 2015 in LPST No. 20134 of 2015 State of H.P. & others ...Applicants/Appellants of Vs. Sumit Kumar & others ...Non-applicants/Respondents For the appellants:
rt Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Romesh Verma, Additional Advocate Generals and Mr. Vikram Thakur, Deputy Advocate General.
Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes.
Tarlok Singh Chauhan, Judge.
Since common questions of law and fact arise for consideration in the appeals and writ petitions, the same were taken up together for disposal.
2. The appeals arise out of judgment rendered by the learned writ Court in a batch of seven writ petitions wherein the writ petitioners were selected Patwari candidates in the process initiated in the year 2005 and accomplished in 2006 and thereafter had successfully completed 1½ years training. Subsequently, when the writ petitioners learnt that they instead of being appointed on regular basis are being Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 15/04/2017 19:03:14 :::HCHP 5
appointed on contract basis, they approached the writ Court for grant of the following relief(s):-
.
"i) That the writ petition in the nature of mandamus may kindly be issued directing the respondents to consider the candidature of the petitioners for offering them appointment on regular basis as Patwaris on the regular scale shown in Annexure P-3 issued at the time of advertisement for fill up the posts of Patwaris.
of
ii) That the writ in the nature of certiorari may kindly be issued for quashing the order dated 19.1.2009 issued by respondent No.1 to the effect of recommending to adjust 140 Patwaris of Land rt consolidation Department against 350 vacant posts available with the Deputy Commissioners after completion of all the formalities on secondment basis.
iii) That the writ in the nature of certiorari may kindly be issued for declaring the amendments made vide Notification dated 17.3.2009 as inoperative and ultra-vires in the case of the petitioners who have been imparted the training under the old rules.
iv) That the writ in the nature of mandamus may kindly be issued restraining the respondents to fill up the sanctioned posts of the petitioners as Patwaris from other departments, especially when the petitioners are available to serve the respondents for which the petitioners humbly prays."
3. Learned writ Court partly allowed the petitions and directed that the writ petitioners be considered for appointment according to merit obtained by them on the basis of final examination of Patwaris training and it was further directed that their appointments as and when made shall take place in regular pay scale and not on contract basis.
Both parties to the lis have filed separate appeals.
4. In so far as appeals filed by the writ petitioners are concerned, they have claimed modification of the impugned judgment to the extent that the selection in their cases be ordered to be made ::: Downloaded on - 15/04/2017 19:03:14 :::HCHP 6 strictly in accordance with the Himachal Pradesh Revenue Department Patwari Mohal (Class III Non-Gazetted) Recruitment and Promotion .
Rules, 1992 (for short, the Rules) and the directions issued in the judgment that such selection be made on the basis of final examination of Patwaris training be quashed and set-aside.
5. While on the other hand, the State in its appeals has of assailed the entire judgment on the ground that the same is illegal and contrary to the rules and instructions issued from time to time.
rt
6. Certain writ petitions i.e. CWP Nos. 740 and 4390 of 2009 have also been filed where the petitioners therein were though appointed on regular basis have subsequently been appointed on contractual basis on fixed remuneration and have assailed the same.
We have heard the learned counsel for the parties and have also gone through the records of the case.
7. At the outset, it may be observed that once the State had not only questioned the locus-standi but had even questioned the very maintainability of the writ petition in their replies filed to the petition before the writ Court, therefore, in such circumstances, we feel that it was imperative that before proceedings to decide the case on merits, the learned writ court ought to have first decided this question. After all, this was the basic and fundamental question which went to the root of the case and it was only after concluding that the writ petitions were maintainable could the learned writ Court have proceeded to decide the case on merit.
::: Downloaded on - 15/04/2017 19:03:15 :::HCHP 78. In this background, the first and foremost question which, therefore, requires to be addressed by this Court is as to whether the .
writ petitions at the instance of persons who were yet to be appointed to the service, was maintainable, particularly in light of the reliefs claimed in the petitioners, because it is more than settled that what is conferred by the Constitution is a right of "consideration" and not of "appointment".
9. In Shankarasan Das Vs. Union of India (1991) 3 SCC 47, rt a Constitution Bench of Hon'ble Supreme Court has held:
"(i) When a number of vacancies are notified for appointment and adequate numbers of candidates are found fit, the successful candidates do not acquire indefeasible right to be appointed against the existing vacancies.
(ii) Ordinarily the notification merely amount to an invitation to qualified candidates to apply for requirement and on their selection they do not acquire any right to the post.
(iii) Unless the relevant recruitment Rules so indicate, the employer is under no legal duty to fill up or any of the vacancies.
(iv) It, however, does not mean that the employer has the licence of acting in an arbitrary manner.
(v) The decision not to fill up the vacancies has to be taken bona fide for appropriate reason.
(vi) If the vacancies or any of them are filled up, the employer is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.
(vii) There is no right to be heard before cancelling the select list."
10. Thus what flows from the decision rendered in Shankarsan Das (Supra) is that the selectees cannot claim the appointment as a matter of right. Mere inclusion of candidates' name in the select list does not confer any right to be selected, even if some of the vacancies remained unfilled and the concerned candidates cannot also claim that ::: Downloaded on - 15/04/2017 19:03:15 :::HCHP 8 they have been meted out and given a hostile discrimination. After following the ratio of Shankarsan Das, supra, this has been the .
consistent view of the Hon'ble Supreme Court in Smt. Asha Kaul and another Vs. State of Jammu & Kashmir and another (1993) 2 SCC 573, Union of India Vs. S.S. Uppal AIR 1996 SC 2346, Hanman Prasad Vs. Union of India (1996) 10 SCC 742, Bihar Public Service of Commission and Ors. Vs. State of Bihar & Ors. AIR 1997 SC 2280, Syndicate Bank & Ors. Vs. Shankar Paul & Ors AIR 1997 SC 3091, rt Vice Chancellor, University of Allahabad Vs. Dr. Anand Prakash Mishra and others (1997) 10 SCC 264, Punjab State Electricity Board Vs. Seema 1999 SCC (L&S) 629, All India SC & ST Employees Association Vs. A Arthur Jeen, AIR 2001 SC 1851, Vinodan T. Vs. University of Kalikut, (2002) 4 SCC 726, S. Renuka Vs. State of Andhra Pradesh and Ors, AIR 2002 SC 1523 and Baitariani Gramiya Bank Vs. Pallab Kumar & Ors. AIR 2000 SC 4248.
11. In S.S.Balu and another vs. State of Kerala and others (2009) 2 SCC 479 it was held by the Hon'ble Supreme Court that a person does not acquire a legal right to be appointed only because his name appears in the select list. The State as an employer has a right to fill up all the posts or not to fill them up. Unless discrimination is made in regard to filling up of vacancies or arbitrariness is committed, the candidate concerned will have no legal right for obtaining a writ in the nature of mandamus and it was held as follows:-
"12. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only ::: Downloaded on - 15/04/2017 19:03:15 :::HCHP 9 because his name appears in the select list. [See Pitta Naveen Kumar & ors. vs. Raja Narasaiah Zangiti & ors. (2006) 10 SCC 261]. The state as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the .
vacancies or an arbitrariness is committed, the concerned candidate will have no legal right for obtaining a writ of or in the nature of mandamus. [See Batiarani Gramiya Bank vs. Pallab Kumar & ors. (2004) 9 SCC 100] .In Shankarsan Dash vs. Union of India [(1991) 3 SCC 47], a Constitution Bench of this Court held:
of "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily rt the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted."
13. In State of Haryana vs. Subash Chander Marwaha [(1974) 3 SCC 220], this Court held:
"10. .......The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect...
11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived."
14. In Pitta Naveen Kumar vs. Raja Narasaiah Zangiti [(2006) 10 SCC 261], this Court held:
"....A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto ::: Downloaded on - 15/04/2017 19:03:15 :::HCHP 10 would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise..."
15. In State of Rajasthan & ors. vs. Jagdish Chopra [(2007) 8 SCC 161], this Court held:
.
"9. Recruitment for teachers in the State of Rajasthan is admittedly governed by the statutory rules. All recruitments, therefore, are required to be made in terms thereof. Although Rule 9(3) of the Rules does not specifically provide for the period for which the merit list shall remain valid but the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year. Vacancies which arose in the subsequent of years could be filled up from the select list prepared in the previous year and not in other manner. Even otherwise, in absence of any rule, ordinary period of validity of select list should be one year. In State of Bihar v. Amrendra Kumar Mishra rt (2006) 12 SCC 561, this Court opined: (SCC p.564, para 9) "9. In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel."
It was further held: (SCC p.565, para 13) "13. The decisions noticed hereinbefore are authorities for the proposition that even the wait list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period."
xxx xxx xxx
11. It is well-settled principle of law that even selected candidates do not have legal right in this behalf. (See Shankarsan Dash v. Union of India (1991) 3 SCC 47, and Asha Kaul v. State of J&K (1993) 2 SCC 573)"
12. In Rakhi Ray and others vs. High Court of Delhi and others (2010) 2 SCC 637 a three Hon'ble Judges Bench of Supreme Court held that a person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed.
::: Downloaded on - 15/04/2017 19:03:15 :::HCHP 1113. The aforesaid observations were reiterated by the Hon'ble Supreme Court in State of Orissa and another vs. Rajkishore Nanda .
and others (2010) 6 SCC 777, Vijoy Kumar Pandey vs. Arvind Kumar Rai and others (2013) 11 SCC 611 and Manoj Manu and another vs. Union of India and others (2013) 12 SCC 171.
14. From the aforesaid exposition of law, it can safely be of concluded that mere empanelment of the candidate in the select list confers no right on the candidate to be appointed on account of being rt so empanelled. At the best it is a condition of eligibility for the purpose of appointment and by itself does not amount to selection nor does it create a vested right to be appointed unless the service rules provide to the contrary. Once this is the settled legal position, then the writ petitioners could not have sought a writ of mandamus seeking their appointment.
15. It would have been an altogether different situation in case the action of the State was not bona fide and/ or otherwise unfair. In such a situation, the learned writ court could have exercised its jurisdiction to issue a writ in the nature of mandamus, but neither any such plea was raised nor was the same otherwise borne out from the records.
16. The further question which therefore, arises for consideration is as to whether the petitioners could have sought a writ in the nature of certiorari for quashing the order issued by the official respondents when they admittedly were not even members of the service and were yet to be appointed. The answer to this is obviously ::: Downloaded on - 15/04/2017 19:03:15 :::HCHP 12 in the negative as it is more than settled that the service rules can only be assailed and challenged by one, who is in service and is adversely .
affected by the same or else the petition would then essentially partake the form of public interest litigation which in service matters is normally not maintainable. For the same reason and on the same analogy, a writ in the nature of mandamus for restraining the respondents to fill up of the sanctioned posts or even a writ in the nature of certiorari would also not lie for declaring the amendments made vide notification dated rt 17.3.2009 as inoperative and ultra-vires, because the petitioners were yet to be appointed and were not members of the service.
17. Consequently, in view of the aforesaid analysis and discussion, coupled with the nature of the relief sought in the writ petitions, it can conveniently be held that all the petitions filed by the writ petitioners were not maintainable.
18. Accordingly, the Letter Patent Appeals preferred by the writ petitioners are ordered to be dismissed, whereas, the appeals preferred by the respondents-State are allowed.
Resultantly, the order passed by the learned writ Court is set-aside, leaving the parties to bear their costs.
CMP(M) No. 1084 of 201519. Since issue involved in this appeal is the same as involved in the aforesaid appeals preferred by the State, LPA 345 of 2010 being the lead case, the delay of three years, nine months and two days in filing the appeal is condoned. The appeal be registered.
::: Downloaded on - 15/04/2017 19:03:15 :::HCHP 13LPA No. ....... of 2015
20. To abide by the decision as rendered in LPA No. 345 of .
2010 and other connected cases.
CWP Nos. 740 and 4390 of 2009.
21. Both these writ petitions are directed against the orders issued by the official respondents on 23.1.2009 and 27.2.2009 of respectively whereby the order of regular appointment of the petitioners as Patwaris has been ordered to be withdrawn and they rt have been ordered to be appointed on contract basis on consolidated emoluments of `4830/-.
22. Written examination for recruitment to the posts of Patwaris (Revenue) was conducted in November 2005 and 30 persons, who qualified the written examination, were called for personal interview.
10 persons qualified the interview and were declared as pass in April 2006. The petitioners successfully completed their training as Patwari candidates.
23. It is not in dispute that in the year 2008, vide order dated 24.9.2008, the petitioners were appointed as Patwaris in the regular pay scale, which order as observed earlier, has been withdrawn and is under challenge in these writ petitions.
24. It is alleged that the impugned order is illegal, arbitrary, unjust and being devoid of any reason is liable to be set-aside. It is further claimed that the order is arbitrary, whimsical and does not comply with the principle of natural justice.
::: Downloaded on - 15/04/2017 19:03:15 :::HCHP 1425. In reply to the petitions, the respondents have sought to justify their action by alleging that the petitioners were never appointed .
as regular Patwaris as their appointment was purely temporary. The Director of Land Records vide his letter dated 22.1.2009 had conveyed sanction of the State Government to fill up 5 vacant posts of Patwaris on contract basis in District Kinnaur. In compliance to sanction of the of State Government, the petitioners vide order dated 27.2.2009 came to be appointed on contract basis. It is further claimed that respondents rt never made any commitment at any earlier stage to give regular appointment to the petitioners as Patwaris in the regular pay scale.
26. We have heard the learned counsel for the parties and have gone through the records of the case.
27. The copy of letter dated 22.1.2009 has been placed on record as Annexure R-1 and reads thus:-
"No.Rev.(LR)A(3) 3/2008-552-63 Directorate Land Record, Himachal Pradesh Shimla-9 Dated: Shimla 22/1/2009.
To The Deputy Commissioner, Kinnaur at Reckong Peo Himachal Pradesh.
Subject: Regarding sanction to fill up the vacant post of Patwaris on Mohal side.
Sir, On the above subject it is submitted that sanction has been obtained vide letter No. Rev.-(ACB)1-6-2007 dated 19/1/2009 to the Financial Commissioner-cum- Principal Secretary (Revenue) to fill up the five (5) vacant post of Patwaris on contract basis amongst the available trained Patwari candidates in this District after full filling of all codal formalities.
Therefore, you are requested to take immediate necessary action to fill up the vacant post of Patwaris and detailed status report of vacancy alongwith information of trained Patwari candidates may be sent to this Directorate after filling up of the post.
Yours faithfully, Sd/-::: Downloaded on - 15/04/2017 19:03:15 :::HCHP 15
Director Land Record, HP Shimla-9.
Endst. No. As above.-5563 Dated 22-1-2009. Copy to:
The financial Commissioner-cum-Principal Secy.(Rev.) to the .
Govt. of HP w.r.t. his above referred letter for information.
Sd/-
Director Land Record, HP Shimla-9."
(underline supplied by us)
28. This Court vide its order dated 1.3.2012 passed in CWP of No. 740 of 2009 had directed the respondents to examine the question as to whether the appointments were made on contract basis or on rt temporary basis against permanent vacancies. In compliance to this direction, the Deputy Commissioner, Kinnaur filed his affidavit wherein the factual position was clarified in the following terms:-
"It is submitted that vide this office order No. KNR-8(SK)4/99- 1806 dated 24.9.2008, six posts of Patwaris were filled up on regular basis in the pay scale of Rs.3120-10-3220-110-336-120-4260-140-440- 150-5000-160-5160 with initial start from 3220. These orders were issued by the then DC. These orders of regular appointment of Patwaris were issued despite the fact that, there was complete ban on the appointments/ recruitments. Therefore, no such appointments could have been made by the Respondent without the approval of the Govt. But subsequently it was noticed that the appointment on regular basis has been issued wrongly, whereas in pursuance of the State Government policy the appointment of these Patwaris were made ion contract basis initially for one year vide this office order No. KNR-8(SK) 2008-11-16 dated 1.1.2009, on the consolidated monthly remuneration as admissible under the instructions issued 9by the State Govt. from time to time on humanitarian grounds subject to approval of State Govt. and recovery of excess payment shall be made from these Patwaris. As is evident from annexure R-1. In continuation to the above order the office order dated 27.2.2009 annexed as annexure R4/A to R4/D were issued. In the meantime all these Patwaris approached Hon'ble High Court against the contractual appointment and they filed CWP No. 740/2009 where in Hon'ble High Court in CWP No. 1286/2009 on 18.3.2009 passed the following orders:
'Till further orders, the petitioners shall continue to work as Patwari, in regular pay-scale, pursuant to their appointment made ::: Downloaded on - 15/04/2017 19:03:15 :::HCHP 16 vide order dated 24th September, 2008 (Annexure P-3) and they shall be paid in terms of the said order."
29. Be it observed that the petitioners have neither chosen to .
file any counter affidavit to controvert these averments nor have they filed any rejoinder to the reply to the writ petitions. Thus these averments have gone un- rebutted. Therefore, once it is shown that of order of regular appointment of the Patwaris had been erroneously and wrongly issued, then no exception can be taken to the exercise rt undertaken by the respondents to rectify and correct the mistake.
30. In Union of India & Another vs. Narendra Singh 2008 (2) SCC 750 the Hon'ble Supreme Court held that the mistake of the department in promoting a person though he was not eligible and qualified, was correctable and it was further observed that mistakes are mistakes and they can always be corrected by following due process of law and that the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It is apt to reproduce the observations as contained in paras 32 and 33, which reads thus:-
"32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors., (1997) 6 SCC 766, it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore Statutory Rules.
33. As observed by us, Statutory Rules provide for passing of Departmental Examination and the Authorities were right in not relaxing the said condition and no fault can be found with the Authorities in ::: Downloaded on - 15/04/2017 19:03:15 :::HCHP 17 insisting for the requirement of law. In the circumstances, the action of the Authorities of correcting the mistake cannot be faulted."
31. In view of the aforesaid discussion, we are of the .
considered view that if some benefit had been awarded to an employee, which was not available to him and had been granted due to mistake of the employer, the same could be rectified after such mistake of came to light and could be corrected at any time. In the realm of service matter, the employer can review any fault committed by rt him/them and this right to review one's own decision on account of mistake or fault is not foreclosed under law.
32. As already observed earlier, the petitioners have failed to file any counter affidavit or rejoinder to the reply whereby it could be gathered that the stand as taken by the respondents in their reply was either false, incorrect or not in accordance with the decision taken by the respondents. Having failed to do so, we are left with no other option but to draw an adverse inference against the petitioners. The petitioners cannot, therefore, claim regular appointment only on account of the mistake of the government.
Consequently, we find no merit, in these petitions and the same are accordingly dismissed. The Registry is directed to place a copy of this judgment on the files of connected matters.
(Mansoor Ahmad Mir), Chief Justice.
(Tarlok Singh Chauhan), th 6 October, 2015. Judge.
(KRS) ::: Downloaded on - 15/04/2017 19:03:15 :::HCHP