Himachal Pradesh High Court
________________________________________________________ vs State Of Hp & Anr on 10 January, 2024
Bench: Vivek Singh Thakur, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
LPA No. 54 of 2021
Decided on: January 10, 2024
________________________________________________________
Hem Raj ........... Appellant
.
Versus
State of HP & Anr. .....Respondents
_______________________________________________________
Coram:
Hon'ble Mr. Justice Vivek Singh Thakur, Judge
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Appellants : Mr. J.L. Bhardwaj, Senior Advocate,
of
alongwith Mr. Sanjay Bhardwaj,
Advocate.
For the respondents rt Ms. Seema: Sharma, Deputy
Advocate General.
________________________________________________________
Sandeep Sharma, Judge (oral)
Instant Letters Patent Appeal, lays challenge to judgment dated 07.04.2021, whereby learned Single Judge of this court, while allowing CWPOA No. 94 of 2019 having been filed by appellant/ petitioner (herein after to be referred as "petitioner") directed the respondents to offer appointment to the petitioner against the post of Pharmacist, reserved for physically handicapped persons from the date when other persons were offered appointment against the said post on contract basis with all consequential benefits including seniority on notional basis as upto date of pronouncement of the judgment and thereafter, on actual basis.
2. Precisely, the facts relevant for adjudication of the case at hand are that vide public notice, Director Health Services, Government of Himachal Pradesh, invited applications from eligible candidates for appearing in counseling for appointment against the posts of 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 11/01/2024 20:33:31 :::CIS 2Pharmacist on batch wise basis. Vide aforesiad public notice, Department concerned advertised 65 posts under various categories including physically handicapped category. Candidates were to .
possess 10+2 Certificate issued by the Board of School Education or its equivalent as also the Mark list of 1 st and 2nd year diploma in Pharmacy, issued by the recognized College/ institution. Besides above, desirous candidates were also required to have Registration of Certificate issued by the Registrar, Himachal Pradesh Pharmacy Council, registration with Employment Exchange and a Physically Handicapped Certificate issued by the Medical Board, in case of rt candidates applying under physically handicapped category.
3. Petitioner, who had done his diploma in Pharmacy (Non-
Engineering), from Government Polytechnic, Rohru, under the Himachal Pradesh Takniki Shiksha Board, in the year 2001, being eligible, applied for the post of Pharmacist under the category of physically handicapped. Petitioner submitted all the required certificates in terms of public notice and he being eligible to participate in the recruitment process, was called for counseling on 05.08.2014 on the recommendations of Selection Committee. Petitioner stood selected for appointment against the post of Pharmacist, as is evident from the list of candidates selected for the post of Pharmacist on contract basis appended with writ petition, wherein admittedly name of the petitioner figures at serial No. 63. In the aforesaid list, name of the petitioner came to be depicted as General Category candidate belonging to Physically Handicapped category with Locomotor Impairment of 40%. Though petitioner stood selected for the post in ::: Downloaded on - 11/01/2024 20:33:31 :::CIS 3 question under physically handicapped category, but his name was not shown in the list of selected candidates circulated vide notification dated 15.01.2015.
.
4. In the aforesaid background, petitioner approached the Erstwhile HP Administrative Tribunal by way of Original Application bearing No. 4670 of 2015, which on account of its abolishment was transferred to this Court for adjudication and was re-registered as of CWPOA No. 94 of 2019, praying therein for following main reliefs:
"i) That the respondents may very kindly be directed to offer appointment of Pharmacist to the applicant with rt effect from the date when other selected candidates have been offered the appointment with all consequential benefits.
ii) That the respondents may further be directed to offer regular appointment to the applicant without any further delay with all consequential benefits."
5. Precisely, the grouse of the petitioner as has been highlighted in the grounds of petition and further canvassed by learned counsel representing petitioner was that the act of respondent/ Department of not offering appointment to him against the post of Pharmacist, reserved for physically handicapped persons is arbitrary because it is not in dispute that the petitioner belongs to physically handicapped category and further, he was eligible for being appointed to the post of Pharmacist in terms of Notification dated 23.03.2012 issued under Section 33 of Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act, 1995, wherein it came to be provided that the post of Pharmacist is identified ::: Downloaded on - 11/01/2024 20:33:31 :::CIS 4 for a person, who is physically handicapped and suffers from Orthopaedic handicap.
6. Afore prayer made by the petitioner came to be resisted .
by the respondents, who in their reply though admitted that petitioner belongs to category of physically handicapped, but claimed that his name was not sponsored by a physically handicapped cell and as such, was not rightly included in the final merit list. Apart from above, of respondents also claimed before the Writ Court that the post advertised was specifically belonging to the category of "General Visually Impaired" and "Deaf and Dumb", therefore, petitioner was not rt recommended for appointment against the post in issue.
7. On the basis of aforesaid pleadings adduced on record by the respective parties, learned Single Judge allowed the writ petition filed by the petitioner and directed the respondents to offer appointment to the petitioner against the post of Pharmacist, reserved for physically handicapped persons from the date when other persons were offered appointment on the said post with consequential benefits including seniority on notional basis upto the date of pronouncement of judgment and thereafter, on actual benefits.
8. Having perused record, especially notification dated 23.03.2012, learned Single Judge found stand of the respondents, that the petitioner could not be offered appointment for the reason that posts were reserved for "General Visually Impaired" and "Deaf and Dumb" category, to be not sustainable in eye of law. Learned Single Judge held aforesaid stand of respondents in complete contradiction to the contents of the Notification dated 23.03.2012, whereby the post of ::: Downloaded on - 11/01/2024 20:33:31 :::CIS 5 Pharmacist has been identified to be filled up from amongst physically handicapped persons, who suffer from Orthopaedic handicap.
Needless to say, petitioner is suffering Locomotor Impairment to the .
extent of 40%, which is an Orthopaedic handicap and as such, learned Single Judge held the petitioner eligible to be considered for appointment against the post in issue.
9. Pursuant to aforesaid direction issued by learned Single of Judge, respondents have already offered appointment to the petitioner against the post of Pharmacist reserved for physically handicapped persons from the date when other persons were offered appointment, rt but now, precisely, the grouse of the petitioner is that once learned Single Judge found him entitled to appointment against the post in question from the date when other persons were offered appointed on the said post on contract basis vide communication dated 15.03.2015, consequential benefits pursuant to his appointment against the post in question could not be extended on notional basis, rather those ought to have been ordered to be paid to him on actual basis.
10. Mr. J.L Bhardwaj, learned senior counsel representing the petitioner vehemently argued that once there was a specific provision in the public notice that person belonging to physically handicapped category is eligible to participate in the selection process for the post of Pharmacist on batch wise basis and pursuant to application made by petitioner, he was not only permitted to participate in the recruitment process held on 05.08.2014, but was also recommended for appointment by the Selection Committee, consequential benefits pursuant to appointment of the petitioner against the post in question, ::: Downloaded on - 11/01/2024 20:33:31 :::CIS 6 could not be extended to him on notional basis, rather same ought to have been paid on actual basis. He submitted that once there was no fault, if any, on the part of petitioner nor there was delay on his part in .
joining the duties pursuant to his selection, learned Single Judge, while holding the petitioner entitled for appointment against the post in question, could not have restricted his financial benefits. In support of his aforesaid contentions, learned senior counsel placed reliance upon of Giridhar Vs. State of Maharashtra & Ors. (2019) 5 SCC 230 and Geeta Ram Vs. State of Himachal Pradesh & Ors2021 (3) Him L.R (DB) 1773. rt
11. Per contra, Ms. Seema Sharma, learned Deputy Advocate General, supported the impugned judgment and vehemently argued that once the petitioner had not worked for the period starting from 15.01.2015, till pronouncement of judgment, no illegality can be said to have been committed by learned Single Judge, while ordering for payment of benefit on notional basis for the period starting from 15.01.2015 till date of pronouncement of judgment. However, Ms. Seema Sharma, learned Deputy Advocate General, was unable to dispute that the aforesaid impugned judgment laid challenge in the instant proceedings has not been assailed by respondents/ State, as a result thereof, finding returned by the learned Single Judge qua entitlement of the petitioner for his appointment against the post in question, has attained finality.
12. We have heard learned counsel for the parties and carefully gone through the record.
::: Downloaded on - 11/01/2024 20:33:31 :::CIS 713. Before ascertaining correctness of rival submissions made by learned counsel for the parties, it is pertinent to take note of the fact that the impugned judgment laid challenge in the instant .
proceedings has not been laid challenge in appropriate proceedings by the respondents and pursuant to that, petitioner has already been offered appointment against the post in question, meaning thereby, finding returned by learned Single Judge with regard to entitlement of of the petitioner to be appointed against the post in question, has attained finality. In view of above, we do not find any occasion to go into the correctness and genuineness of the findings returned by learned Single rt Judge with regard to availability of the posts of Pharmacist belonging to the category of physically handicapped as well as eligibility of the petitioner to be appointed against such post.
14. Sole question, which needs determination in the case at hand, is "whether leaned Single Judge after having found the petitioner entitled for appointment against the post in question from the date other similar situate persons were offered appointment pursuant to public notice, could have ordered that consequential benefits including seniority, shall be notional upto the date of pronouncement of the judgment and thereafter, on actual basis?"
15. Having perused grounds taken in the present appeal and heard submissions made by learned counsel for the parties vis-a-vis reasoning assigned in the impugned judgment, this Court is persuaded to agree with Mr. J.L. Bhardwaj, learned senior counsel for the petitioner that learned Single Judge has fallen in grave error inasmuch as ordering payment of benefits on notional basis for the period starting ::: Downloaded on - 11/01/2024 20:33:31 :::CIS 8 from 15.01.2015 till date of pronouncement of judgment. If the judgment is read in its entirety, it clearly suggests that the post of Pharmacist advertised vide public notice was reserved for physically .
handicapped category and petitioner being fully eligible was permitted to participate and was also declared successful. It is also apparent from the reading of the judgment that the post of Pharmacist was identified to be filled up from amongst physically handicapped persons, of who suffer from Orthopaedic handicap, meaning thereby, petitioner, who is suffering from Locomotor Impairment to the extent of 40%, was otherwise eligible being Orthopaedically handicapped. If it is so, rt petitioner, from day one, was eligible to be appointed against the post in question under physically handicapped category. Since the petitioner pursuant to advertisement, applied for the post in question and was declared successful in the selection process, he was rightly ordered to be appointed against the post in question by learned Single Judge, while passing the impugned judgment, from the date other candidates, who had participated pursuant to public notice, were offered appointment. Since there was no fault or delay, if any on the part of the petitioner to give joining in terms of his selection pursuant to recommendation made by the Selection Committee, while conducting counseling on 05.08.2014, learned Single Judge ought not have ordered for grant of consequential benefits on notional basis for the period starting from 15.01.2015, when other persons were offered appointment, till the date of pronouncement of judgment, rather, he being fully eligible, ought to have been given actual benefits from the date he otherwise would have got appointment against the post in ::: Downloaded on - 11/01/2024 20:33:31 :::CIS 9 question, especially when the objections raised by the respondents/ State, ultimately came to be set aside by learned Single Judge, while passing impugned judgment. Reliance in this regard is placed upon .
judgment passed by Hon'ble Apex Court in Giridhar Vs. State of Maharashtra & Ors. (2019) 5 SCC 230, wherein it has been held that where delay is attributable to an employee, benefit can be restricted, but if applicant is vigilant from the very beginning and no delay could of be attributed to him, he is entitled for grant of actual benefits alongwith consequential benefits from the due date.
"10. Heard the learned counsel appearing on behalf of rt the respective parties at length. At the outset, it is required to be noted that the only issue in the present appeal is whether, in the facts and circumstances of the case, the High Court is justified in restricting the grant of arrears and other benefits from 03.07.2008, and not from the date of first appointment of the writ petitioner i.e. 26.12.1989?
10.1 Having heard the learned counsel appearing on behalf of the respective parties and considering the facts narrated above and the fact that, right from 1997 onwards, the appellant-original writ petitioner made representations for his grievances and requested to de-reserve the post, which was made in view of the G.R. dated 25.01.1990, it cannot be said that the appellant had slept over his rights. In fact, when the representations were made, it was for the appropriate authority to deal with the same expeditiously. From the material on record and, as per the case of the appellant, in view of the circular dated 28.07.1999 and letter dated 17.04.2001, the employees were ::: Downloaded on - 11/01/2024 20:33:31 :::CIS 10 restrained from going to Court straightaway, without first seeking the redressal of their grievances by representation to the Government and exhausting the said process. Therefore, it is the case on behalf of the .
appellant that, therefore, the appellant-original writ petitioner waited for the outcome of his representation and did not prefer the petition earlier. It is submitted that, even thereafter, when the appellant-original writ petitioner filed representation in the year 2011, the of High Court directed the State to decide the representation at the earliest. It is submitted that, therefore, the delay is not attributable to the appellant rt at all. The appellant was vigilant from the very beginning. In fact, the State and the appropriate authority/College/University ought to have taken the decision earlier to de-reserve the post on which the appellant was working, in view of G.R. dated 25.02.1990 and the subsequent communications. Therefore, the delay cannot be attributed to the appellant and the High Court is not justified in restricting the benefits with effect from the preceding last three years' only. Only in a case where the delay is attributable to the employee the benefit can be restricted. That is not the case here.
10.2 Now, so far as the submission made on behalf of the respondent-State that the impugned order is a consent order and the learned counsel appearing on behalf of the appellant agreed to restrict the monetary benefits w.e.f. 03.07.2008 i.e. the period of three years preceding the last date of filing of the previous petition is concerned, the aforesaid has no substance. First of all, there is no such concession made by the learned ::: Downloaded on - 11/01/2024 20:33:31 :::CIS 11 counsel appearing on behalf of the appellant. What is pointed out in paragraph 4 is the submission made by the learned Additional Government Pleader. As such, there is no concession given as sought to be .
canvassed on behalf of the respondent State. Even considering the order passed by the High Court in the case of Harshendu Vinayak Madge v. Chembur Trombay Education Society, though the said case is of termination, the High Court while quashing and setting of aside the order of termination, has directed to grant the benefits with effect from the initial appointment.
10.3 Therefore, in the facts and circumstances rt narrated above and, more particularly, that the delay is not attributable to the appellant-original writ petitioner at all, the High Court is not justified in restricting the monetary benefits w.e.f. 03.07.2008 only. The appellant-original writ petitioner shall be entitled to all the monetary benefits, including the arrears etc. treating his appointment from 26.12.1989 and all such consequential benefits accordingly.
11. In view of the above and for the reasons stated hereinabove, the present appeal succeeds. The impugned judgment and order passed by the High Court restricting the monetary benefits w.e.f. 03.07.2008 only is hereby quashed and set aside and it is held that the appellant shall be entitled to the arrears/monetary benefits from the date of his first appointment i.e. 26.12.1989 and the appellant shall be paid all other consequential benefits accordingly, to be paid within a period of three months from today. The present appeal is allowed accordingly. No costs."::: Downloaded on - 11/01/2024 20:33:31 :::CIS 12
16. Reliance is also placed on judgment passed by this Coordinate Bench of this court in case titled Geeta Ram Vs. State of Himachal Pradesh & Ors2021 (3) Him L.R (DB) 1773, wherein this .
Court, while reiterating that recruitment process is to be governed by the rules prevalent at the time of advertisement, further held that in case a person is denied his/ her lawful due by the other without such person being accessory to it, he/ she will be entitled to all of consequential reliefs which flow from the main relief granted to him.
This court held as under:-
rt "17 It is trite that in case a person was denied his/her lawful due by the other without such person being accessory to it, he /she will be entitled to all consequential reliefs which flow from the main relief granted to him, consequently the respondents are directed to pay the arrears of salary and all permissible dues to the petitioner from the date from which he is appointed to the post of Trained Graduate Teacher (Arts). The petition is accordingly disposed of with no orders as to costs. Pending miscellaneous application(s), if any, are also disposed of."
17. In the case at hand, it is quite apparent that despite being eligible, the petitioner was not offered appointment against the post in question and, thereafter, he immediately approached the competent Court of law, which further after having perused the record, found action of the respondents in not offering appointment to the petitioner against the post in question, bad in law. If it is so, principle of "no work no pay" sought to be applied by the respondents/ State, while justifying ::: Downloaded on - 11/01/2024 20:33:31 :::CIS 13 decision of learned Single Judge to restrict the consequential benefits for the period, petitioner was not able to work, cannot be invoked. Once learned Single Judge found the petitioner entitled for appointment .
against the post in question on the basis of public notice issued in the year 2014 and pursuant to such public notice, petitioner not only participated in the selection process, but was also recommended to be offered appointment by the Selection committee, learned Single Judge of could not have ordered for payment of benefits on notional basis from the date of appointment given to other candidates till the date of pronouncement of judgment.
rt
18. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, we find merit in the present appeal and accordingly, same is allowed and judgment passed by learned Single Judge of this Court is modified to the extent that pursuant to his appointment against the post of Pharmacist reserved for physically handicapped person, petitioner shall be entitled to all consequential benefits on actual basis including that of seniority from the date other persons were offered appointment, on contract basis pursuant to public notice. Pending applications, if any stands dismissed.
(Vivek Singh Thakur) Judge (Sandeep Sharma) Judge January 10, 2024 sunil ::: Downloaded on - 11/01/2024 20:33:31 :::CIS