Himachal Pradesh High Court
Shri Rajesh Thakur And Others vs H.P. Vidhan Sabha And Others on 7 May, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. : 277 of 2012.
.
with LPAs No. 327 and 356 of
2012.
Decided on: 07.05.2018.
LPA No. 277 of 2012
Shri Rajesh Thakur and others ....Appellants.
Versus
H.P. Vidhan Sabha and others. ...Respondents.
LPA No. 327 of 2012
Himachal Pradesh Vidhan Sabha and others ....Appellants.
Versus
Shri Rajesh Thakur and others. ...Respondents.
LPA No. 356 of 2012
Shelly and others ....Appellants.
Versus
H.P. Vidhan Sabha and others. ...Respondents.
Coram
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1
LPA No. 277 of 2012
For the appellants : Mr. P.D. Nanda, Advocate.
For the respondents : Mr. Anshul Attri, Advocate for
respondents No. 1, 2 and 6.
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: Respondents No. 3, 4 and 5 already
ex parte.
: Mr. Shrawan Dogra, Sr. Advocate
.
with Ms. Nishi Goel, Advocate for
respondents No. 7 to 9.
LPA No. 327 of 2012
For the appellants : Mr. Anshul Attri, Advocate.
For the respondents : Mr. P. D. Nanda, Advocate for
respondents
: Mr. Shrawan Dogra, Sr. Advocate
with Ms. Nishi Goel, Advocate for
respondents No. 4 to 6.
LPA No. 356 of 2012
For the appellants : Mr. Shrawan Dogra, Sr. Advocate.
For the respondents : Mr. Anshul Attri, Advocate for
respondents No. 1 and 2.
:Mr. P.D. Nanda, Advocate for
respondents No. 3 to 5.
Ajay Mohan Goel, Judge (Oral)
These three appeals arise out of judgment passed by learned Single Judge in CWP No. 10565 of 2011, titled as Rajesh Thakur and others versus H.P. Vidhan Sabha and others. LPA No. 277 of 2012, titled as Rajesh Thakur and others versus H.P. Vidhan Sabha and others, has been preferred by the writ petitioners before the learned Single Judge. LPA No. 327 of 2012, titled as Himachal Pradesh Vidhan Sabha and others versus Shri Rajesh Thakur and others, has been preferred by respondents No. 1, 2 and 6 before the learned Single Judge. LPA No. 356 of 2012, titled as Shelly and others ::: Downloaded on - 10/05/2018 23:06:01 :::HCHP versus H.P. Vidhan Sabha and others, has been preferred by respondents No. 7 to 9 before the learned Single Judge.
.
2. Petitioners in CWP No. 10565 of 2011, titled as Rajesh Thakur and others Versus H.P. Vidhan Sabha and others challenged the appointment of respondents No. 7 to 9 therein as clerks on the grounds that the said appointments were a result of favourtism and nepotism, said respondents being close relatives of respondents No. 4 and 5 in the writ petition. According to the petitioners, not only respondents No. 7 to 9 were given higher marks in the interview to favour them but there was also possibility of their answer sheets being replaced.
3. In reply, respondents in the writ petition, denied the allegations made in the petition. Private respondents also took the defence that since the petitioners had not even qualified the typing test, therefore, they were precluded to participate in the selection test.
It was also the stand of the respondents that having unsuccessfully participated in the selection process/test, even otherwise, petitioners could not be permitted to turn around and say that the selection process was bad.
4. One more ground taken in the petition was that the appointments of the private respondents were bad as they were made by Under Secretary (Establishment) of Vidhan Sabha, who was not the authority competent to make appointments as per Rules. To this, the stand of the respondent-Vidhan Sabha was that as the Speaker as ::: Downloaded on - 10/05/2018 23:06:01 :::HCHP well as Secretary of Vidhan Sabha were out of the Country, therefore, Under Secretary (Establishment), who was the officer dealing with .
service matters and also well conversant with the process, had been ordered to issue appointment letters.
5. Learned Single Judge, vide judgment under challenge in these appeals, held that the appointments of respondents No. 7 to 9 were not an outcome of nepotism or favourtism and that there was no illegality in the procedure prescribed for recruitment. However, it set aside the appointments of the private respondents No. 7 to 9 in the writ petition on the ground that their appointment letters had not been issued by the competent authority.
6. This judgment stands assailed by the petitioners, Himachal Pradesh Vidhan Sabha as also the private respondents in the writ petition.
7. On 3.7.2012, in LPA No. 277 of 2012, titled as Rajesh Thakur and others vs. Himachal Pradesh Vidhan Sabha and others, this Court had passed the following order:
"No notice need be issued to respondent No. 3 at this stage. Subject to the objection(s), number the LPA and put up the same alongwith the appeals filed by the private respondents and the Vidhan Sabha.
Appointment, if any made in the meanwhile from the waiting list, will be subject to the result of the writ petition and it shall be so made clear in the proceedings."::: Downloaded on - 10/05/2018 23:06:01 :::HCHP
8. Today, this Court has been informed that on the strength of the said order, private respondents in the writ petition are .
continuing to be in service in the Vidhan Sabha.
9. We have heard learned Counsel for the parties and gone through the judgment passed by the learned Single Judge as also the records of the case.
10. In our considered view, while there is no infirmity in the findings returned by the learned Judge whereby he came to the conclusion that the appointments of the private respondents in the writ petition was not a result of favourtism or nepotism and that there was no illegality in the procedure followed by the Vidhan Sabha for the purpose of recruitment of clerks. However, learned Single Judge, thereafter erred in setting aside the appointments of the private respondents therein on the ground that their appointments were not by competent authority.
11. Learned Counsel for the appellants/petitioners, in the course of arguments, could not demonstrate from records that respondents No. 4 and 5 in the writ petition either participated in the process of selection or they, in any manner, influenced the process of selection. Further, it is not the case of the appellants/petitioners that a person per se was ineligible to participate in the process of selection, if his/her relative was serving in the Vidhan Sabha. It is also a matter of record that the appellants/petitioners participated in the recruitment process without any protest and it is only after they were ::: Downloaded on - 10/05/2018 23:06:01 :::HCHP unsuccessful in the same, they raised the issue of favourtism and nepotism by filing a writ petition.
.
12. Learned Counsel for the appellants/petitioners could not state as to why the appellants/petitioners immediately after the process of recruitment did not raise any objection with regard to fairness of the recruitment process.
13. It is a settled principle of law that, he who alleges, has to prove. Therefore, the onus to prove favourtism and nepotism was upon the petitioners but rather than substantiating their contentions on the basis of cogent material, bald allegations stood made in the petition without any material to support the same. Therefore, we concur with the findings returned by the learned Single Judge that the selection process was fair and there was no favourtism or nepotism in favour of respondents No. 7 to 9 in the petition.
14. As far as setting aside of appointment of the private respondents in the petition by learned Single Judge on the ground that there appointment was not made by the competent authority is concerned, it has been argued on behalf of Vidhan Sabha as also selected candidates that the findings so returned by the learned Single Judge were not sustainable in law because the appointment was offered to the selected candidates purely on merit basis and appointment letters were issued by the Under Secretary (Establishment) of Vidhan Sabha as the Speaker and Secretary of Vidhan Sabha were on foreign tour.
::: Downloaded on - 10/05/2018 23:06:01 :::HCHP15. Learned Senior Counsel appearing for the appellants/ selected candidates has argued that the entire selection process was .
initiated and approved by Speaker, Vidhan Sabha, himself right from initiation of selection process, including the selection, approval of selection panel and taking into consideration the fact that he was to remain out of country for some time during the period when appointment letters were to be issued in favour of the selected candidates, Speaker, Vidhan Sabha took a conscious decision to authorize Under Secretary (Establishment), who was the officer dealing with branch pertaining to appointments to issue appointment letters. On these bases, it has been urged before us that learned Single Judge erred in coming to the conclusion that issuance of appointment letters by Under Secretary (Establishment) was in violation of Recruitment and Promotion rules.
16. In our considered view, there is merit in the contention of learned Counsel for respondent-Vidhan Sabha and learned Senior Counsel appearing for the appellants/selected candidates.
Undisputedly, appointment letters, though issued by Under Secretary (Establishment), were issued to the meritorious candidates who stood selected in the recruitment process, so initiated by Vidhan Sabha in which writ petitioners also participated unsuccessfully. It is also a matter of record that appointment letters were so signed by Under Secretary (Establishment), under the authorization of Speaker of the Vidhan Sabha because the Speaker as well as Secretary, Vidhan ::: Downloaded on - 10/05/2018 23:06:01 :::HCHP Sabha were out of country. This, in our considered view, at the most, could be termed as an irregularity, which was easily curable and not .
such an irregularity which would have had rendered the entire selection process of the selected candidates to be void-abinitio. This important aspect of the matter has been ignored by the learned Single Judge because appointment of the selected candidates on merits has not been disowned by the Vidhan Sabha.
17. In these circumstances, while allowing LPA Nos. 327 of 2012, titled as Himachal Pradesh Vidhan Sabha and others versus Shri Rajesh Thakur and others and 356 of 2012, titled as Shelly and others versus H.P. Vidhan Sabha and others and while dismissing LPA No. 277 of 2012, titled as Rajesh Thakur and others versus H.P. Vidhan Sabha and others, we uphold the order passed by learned Single Judge to the extent he has held that the selection of respondents No. 7 to 9 in the writ petition/selected candidates was not a result of favourtism and nepotism and that there was no illegality in the selection process so undertaken by the Vidhan Sabha for recruitment of clerks but we set aside the judgment passed by the learned Single Judge to the extent the appointments of respondents No. 7 to 9 in the writ petition, i.e. appellants in LPA No. 356 of 2012, were set aside on the ground that their appointments were not made by the competent authority. We hold that there was no illegality in the appointment letters issued by Under Secretary (Establishment), Himachal Pradesh Vidhan Sabha, in the peculiar facts and ::: Downloaded on - 10/05/2018 23:06:01 :::HCHP circumstances of the case so as to render their appointments bad in law.
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In view of above discussion, LPA No. 327 of 2012, Himachal Pradesh Vidhan Sabha and others versus Shri Rajesh Thakur and others and LPA No. 356 of 2012, titled as Shelly and others versus H.P. Vidhan Sabha and others are allowed and LPA No. 277 of 2012, titled as Rajesh Thakur and others versus H.P. Vidhan Sabha and others, is dismissed. Pending miscellaneous application(s), if any, also stand disposed of. No orders as to costs.
(Sanjay Karol) Acting Chief Justice (Ajay Mohan Goel) Judge May 07, 2018.
(narender) ::: Downloaded on - 10/05/2018 23:06:01 :::HCHP