Himachal Pradesh High Court
Shubham Kumar vs State Of H.P. & Others on 17 October, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. 187 of 2022 alongwith
LPA No. 40 of 2021
.
Date of Decision: 17.10.2023
LPA No. 187 of 2022
Shubham Kumar .....Appellant.
Versus
State of H.P. & others .....Respondents.
of
LPA No. 40 of 2021
Kulbhushan Kumar .....Appellant.
Versus
State of H.P. & othersrt .....Respondents.
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting? Yes
For the appellant(s) : Mr. Naresh Verma, Advocate, for the
appellant in LPA No. 187 of 2022 and
for respondent No.5 in LPA No. 40 of
2021.
Mr. Vivek Singh Attri, Advocate, for the
appellant in LPA No. 40 of 2021 and for
respondent No.5 in LPA No. 187 of 2022.
For the respondents : Mr. Anup Rattan, Advocate General with
Mr. Rakesh Dhaulta, Additional
Advocate General.
Vivek Singh Thakur, Judge (oral)
These appeals, arising out of the common judgment dated 07.04.2021, passed in CWPOA No. 3985 of 2020, titled Shubham Kumar vs. State of H.P. and others, are being decided by this common judgment.
::: Downloaded on - 20/10/2023 20:35:15 :::CIS 22. Parties to the lis are being referred according to their respective status in the CWP No. 3985 of 2020 as petitioner, .
respondent-state and private respondent for convenience.
3. Respondent-State, vide Notification dated 26.10.2016, had initiated process for recruitment to the post of Warder in Jail in the Home Department of the State, wherein one post of Warden in the category of OBC/IRDP/BPL/Antordeh/IRDP was also notified.
of Petitioner Shubham Kumar and private respondent Kulbhushan had also applied for the said post amongst others.
rt
4. Undisputed facts are that:
(a) The family of respondent Kulbhushan, comprising of his mother, two sisters and himself, was having Below Poverty Line Certificate, issued on 18.04.2016, which was valid for six months i.e. 18.10.2016.
(b) Ms. Karuna Devi, sister of private respondent Kulbhushan was appointed as a constable in the Police Department on 24.09.2016.
(C) Last date for submission of applications for the recruitment of Warder was 30.11.2016 and for the candidates residing in tribal and difficult areas of Himachal Pradesh last date was 15.12.2016.
(d) Recruitment process was completed by the Selection Committee on 31.05.2017, by preparing list of selected candidates, wherein private respondent-Kulbhushan was declared selected for obtaining 49.80 marks in the process, whereas petitioner Shubham Kumar was notified at Sr. No.1 in the waiting list in the said category for obtaining 48.70 marks.
(e) Private respondent-Kulbhushan had
produced certificate of BPL, issued on
09.12.2016.
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3
5. It is also apt to record that, according to private respondent-Kulbhushan, he had informed the Panchayat about the .
appointment of his sister in the Police Department and for that reason Gram Sabha had passed the resolution on 08.01.2017 to exclude his family from the BPL category.
6. In aforesaid facts and circumstances, petitioner Shubham of Kumar preferring CWP No. 3985 of 2020 has assailed the appointment of the petitioner praying for the following relief (s):-
rt " i) That this Original Application may kindly be allowed and the appointment of respondent No.5 as Warder (District Mandi) may very kindly be quashed and set-aside.
ii) That the respondents be directed to appoint the applicant in place of respondent No.5, because he is the next candidate in the waiting list of the candidates from the list of the selected candidates."
7. Taking into consideration the facts and circumstances, learned Single Judge has arrived at conclusion that after 24.09.2016 family of the respondent-Kulbhushan was not entitled for BPL certificate and thus the said respondent was not entitled for job against the post reserved for OBC(BPL/IRDP) category and has quashed and set-aside the appointment of respondent- Kulbhushan.
8. Respondent-Kulbhushan has assailed the aforesaid impugned judgment by filing LPA No. 40 of 2021. Whereas, petitioner Shubham has preferred LPA No. 187 of 2022 against the impugned judgment being aggrieved by for not passing direction to the respondents to appoint him against the post occupied by the ::: Downloaded on - 20/10/2023 20:35:15 :::CIS 4 respondent-Kulbhushan being at Sr. No.1 in the merit after respondent No.5, who has been declared to be ineligible by the Court for .
appointment to the said post and where appointment has been quashed and set aside at the instance and initiation of petitioner Shubham Kumar.
9. On behalf of respondent-Kulbhushan, it has been contended that he is serving since last more than five years and he of had himself informed the Panchayat about the appointment of his sister in the Police Department and at the time of submission of rt application he was having the valid certificate under the BPL category and, therefore, his appointment should not have been set-aside and quashed because his family was excluded from the BPL list, in the month of January, 2017 subsequent to the last date of submitting application for the post in reference.
10. Learned Counsel for the petitioner has submitted that at the time of issuance of notification and thereafter, family of the petitioner was not under the below poverty line on account of appointment of Karuna (sister of Kulbhushan) in the Police Department, and this fact was well within the knowledge of respondent- Kulbhushan, therefore, he should not have applied under the said category i.e. OBC(BPL/IRDP) but without disclosing the said fact, he had applied against the post as a BPL candidate for which he was not entitled.
11. To substantiate his claim, learned counsel for the petitioner has also referred instructions dated 28.07.2008, issued by ::: Downloaded on - 20/10/2023 20:35:15 :::CIS 5 the Rural Development Department of the Government of HP, placed on record alongwith the rejoinder, wherein it has been provided that in .
case of appointment of any member of the family belonging to BPL category the said family shall be excluded from the BPL list and BPL certificate shall not be issued to such family and in case any member of such family pressurized to issue such certificate then the said person shall be asked to file an affidavit that income of his family is of less than Rs. 2500/- per month. It has been further provided in the instructions that in case any BPL certificate is found to be false and rt incorrect, in that eventuality concerned Gram Panchayat Secretary/ Panchayat Assistant / Panchayat Pradhan shall be liable to face the criminal proceedings and beneficiary of such certificate shall be dismissed from service and against such person also, a criminal case shall be registered.
12. In the aforesaid facts, it is evident that family of respondent-Kulbhushan was not entitled for BPL certificate after 24.09.2016 and, therefore, the certificate issued on 18.04.2016 has lost its efficacy in September 2016, despite its currency up to 18.10.2016. In any case, there was no occasion for the private respondent to claim his family to continue in the BPL list at the time of issuance of Advertisement dated 26.10.2016 and thereafter, particularly in December 2016, when the family obtained/renewed BPL certificate on 09.12.2016. Therefore, at the time of issuance of advertisement, at the time of making application as well as at the time of interview and finalization of the selection process, family of ::: Downloaded on - 20/10/2023 20:35:15 :::CIS 6 respondent-Kulbhushan Kumar was not entitled to remain in the BPL list of the Gram Panchayat and, thus, was not entitled for certificate .
under BPL category. Therefore, appointment of the respondent-
Kulbhushan against the post reserved for BPL category is illegal and has rightly been quashed and set-aside by the learned Single Judge.
13. It has been submitted on behalf of private respondent-
Kulbhushan that at the relevant point of time respondent-Kulbhushan of had just attained the age of majority and was having the BPL Certificate issued in his favour by the Gram Panchayat and he relied rt upon the same under the bonafide belief that during the currency of that certificate it can be used for getting the job and thus it has been prayed to take lenient view towards private respondent-Kulbhushan.
14. Considering the submissions of learned counsel for private respondent-Kulbhushan, we are not directing the concerned authority to initiate any criminal action against the said respondent, particularly for the reason that it was respondent's family itself, who had informed the Gram Panchayat for excluding their family from the BPL list on account of appointment of Karuna in the Police Department and in furtherance whereto a Gram Sabha was convened on 8 th January, 2017 and the family of the respondent was excluded from the BPL list.
15. Since petitioner Shubham Kumar is agitating for his cause to get the job being a meritorious candidate amongst the eligible candidates being notified at Sr. No.1 in merit in the waiting list after respondent Kulbhushan Kumar, his second prayer should have ::: Downloaded on - 20/10/2023 20:35:15 :::CIS 7 been considered by the learned Single Judge for issuing directions to the respondents- State to appoint him against the post in reference, as .
selection panel remains alive during the pendency of lis particularly when the person next in merit to the wrongly selected person is himself agitating the matter and fighting for his right to get the job being meritorious person amongst the eligible persons. It is not a case of a dead or stale claim, as the petitioner Shubham Kumar has taken of all possible steps for claiming his rights against the post within one year of the selection of private respsondent-Kulbhushan.
rt
16. In view of the aforesaid discussion, appeal preferred by the respondent-Kulbhushan is dismissed and appeal preferred by petitioner-Shubham Kumar is allowed by directing the respondents-
State to immediately take follow-up action in accordance with the direction by this Court to offer appointment to petitioner Shubham Kumar on or before 18.11.2023. Petitioner Shubham Kumar shall be deemed to have been appointed from the date of appointment of the candidates selected through the same selection process in which the petitioner Shubham Kumar had participated. However, he was not in job and respondent- Kulbhushan Kumar has actually served and received the salary and, therefore, petitioner Shubham Kumar shall not be entitled for back wages but shall be entitled for all service benefits notionally from the deemed date of his appointment for all intents and purposes including seniority, fixation of pay and earned leave etc. except for actual monetary benefits accruing before 30.11.2023.
::: Downloaded on - 20/10/2023 20:35:15 :::CIS 817. As petitioner Shubham Kumar is to be deemed to have been appointed in the year 2017, therefore, he has to be considered to .
have completed three years of contract appointment in the year 2020, alongwith other selectees of the same selection process. However, so far as training and probation period is concerned, the petitioner shall have to undergo necessary training as well as probation period, if any in accordance with law/ Rules as applicable.
of
18. Accordingly, LPA No. 40 of 2021 is dismissed and LPA No. 187 of 2022 is allowed.
rt Pending applications, if any, are disposed of in the same terms.
(Vivek Singh Thakur) Judge (Bipin Chander Negi) Judge October 17, 2023 (Nisha) ::: Downloaded on - 20/10/2023 20:35:15 :::CIS