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Himachal Pradesh High Court · body

2011 DIGILAW 2363 (HP)

State of H. P. v. Block Anganwadi Worker’s Union

2011-08-03

KURIAN JOSEPH, RAJIV SHARMA

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JUDGEMENT Justice Rajiv Sharma, Judge (oral). This Letters Patent Appeal has been preferred by the appellants against the judgment dated 24.12.2010 of the learned Single Judge rendered in CWP (T) No. 9192/2008. 2. Material facts necessary for the adjudication of this Letters Patent Appeal are that the appellants issued an advertisement vide Annexure A-2 placed on record of CWP (T) No. 9192/2008 (OA No.178/2003) whereby applications were called for filling up the posts of Supervisor in the Department of Social, Women and Scheduled Tribe Welfare in the prescribed form from the eligible Anganwari Workers working in the Social, Women and Scheduled Tribe Welfare Department and Balsevikas / Balbari Teachers-cum-Craft Teachers working in the Child Welfare Parishad and State Social Welfare Advisory Board within a period of 30 days from the date of advertisement. The advertisement was issued on 28.10.2002. The minimum essential educational qualification was matriculation from the recognized Board of School Education (Institution) having five years’ service as Anganwari Worker. The members of the respondent-Union were working as Anganwari Workers in Jhandutta Block of District Bilaspur. They were not permitted to participate in the selection process by the appellants on the ground that they were not having five years service on the date of advertisement, i.e. 28.10.2002. Respondent No. 1-Union approached the learned erstwhile Himachal Pradesh Administrative Tribunal for the redressal of grievance of its members by filing O.A. No. 178/2003, which after transfer to this Court was registered as CWP (T) No. 9 192/2008. Case of the respondent-Union before the Tribunal was that its members were fully eligible and qualified. 3.According to the advertisement issued, 242 posts were to be filled up on the basis of written examination and viva-voce test. Learned Tribunal granted the interim relief to the members of the respondent-Union by allowing them to appear in the interview/screening test provisionally in accordance with the rules and regulations on 16.1.2003. Learned Single Judge disposed of the petition finally on 24.12.2010 with a direction to the Director, Social, Women and Scheduled Caste Welfare to declare the result of the written/test interview for the post of Supervisor held during 2003 and consider the case of those candidates who have qualified in the test/interview in case they were having the requisite qualifying service as Anganwari Worker as on 19.1.2003, i.e. the date of written test within three months from the date of production of copy of the judgment. Appellants have come in appeal against the judgment of the learned Single Judge dated 24.12.2010. 4.Mr. Ankush Dass Sood has strenuously argued that the learned Single Judge has erred in law by holding the members of the respondent-Union eligible as on 19.1.2003, i.e. the date of written test. According to him, the members of the respondent-Union were required to be in possession of the qualifying service of five years on the date of advertisement, i.e. 22.10.2002. 5.Mr. Tarlok Jamwal has supported the judgment dated 24. 12.2010. 6.We have heard the learned counsel for the parties and have perused the pleadings carefully. 7.It is not in dispute that the selection process had been initiated by the appellants on the basis of Annexure A-2. The date of publication of Annexure A-2 was 28.10.2002 and it was published in the daily Edition of Amar Ujala. The candidates were required to apply within 30 days after the publication of the advertisement. According to the appellant, since the members of the respondent-Union were not in possession of qualifying service of five years as on 28.10.2002, they were not permitted to participate in the selection process. According to Mr. Ankush Dass Sood the candidates were required to possess qualifying service of five years as per the Recruitment and Promotion Rules on the date of publication of advertisement dated 28.10.2002. 8.The core issue which has arisen to be decided by us is: whether the members of the respondent-Union were required to possess the qualifying service of five years on 28.10.2012, i.e. the date of issuance of advertisement or on the date of written test as held by the learned Single Judge, i.e. 19.1.2003. The minimum qualifying service was five years for the Anganwari Workers as per the Recruitment and Promotion Rules as also mentioned in the advertisement with matriculation as minimum essential qualification. 9.Their Lordships of the Hon’ble Supreme Court in Rajasthan Public Service Commission versus Kaila Kumar Paliwal and another, (2007) 10 SCC 260 have held that essential qualification must be possessed by a person as on the date of issuance of the notification or as specified in the Rules. Their Lordships have held as under: “21. Recruitment to a post must be made strictly in terms of the Rules operating in the field. Their Lordships have held as under: “21. Recruitment to a post must be made strictly in terms of the Rules operating in the field. Essential qualification must be possessed by a person as on the date of issuance of the notification or as specified in the rules and only in absence thereof, the qualification acquired till the last date of filing of the application would be the relevant date. See Ashok Kumar Sharma and Others v Chander Shekhar and Another [(1997) 4 SCC 18], U.P. Public Service Commission U.P.Allahabad and Another v Alpana [(1994) 2 SCC 723] and Harpal Kaur Chahal (Smt.) v Director, Punjab Instructions, Punjab and Another [1995 Supp (4) SCC 706].” 10. In the case in hand, the date of advertisement as per Annexure A-2 was 28.10.2002. The candidates were required to possess essential qualifying service of five years on 28.10.2002 and not on the date of written test, i.e. 19.1.2003. we are of the considered opinion that the learned Single Judge has erred in law by coming to a conclusion that the qualifying service was required on the date of written test, i.e. 19.1.2003 and not the date of advertisement, i.e. 28.10.2002. According to us, as there is neither any separate date given in the Recruitment and Promotion Rules nor in the advertisement, the date of publication of the advertisement was to be treated as last date for possessing the essential qualifying service of five years. 11. The appellants have also placed on record copy of judgment rendered by the learned Single Judge in CWP (T) No. 12569/2008 dated 21.2.2011. The candidates in CWP (T) No. 12569/2008 also pertain to Anganwari Workers, who initially were not permitted to participate in the selection process as they were not possessing qualifying service of five years as Anganwari Worker. The learned Single Judge has held that since the petitioners therein were not possessing the qualifying service of five years on 28.10.2002, i.e. the date of advertisement, they could not be held eligible to the post of Supervisor. It is borne out from the judgment dated 21.2.2011 that as many as 1191 candidates had participated in the selection process, including the petitioners and 238 candidates have been selected and offered appointment on 30.8.2005. 12. In the instant case, the members of the respondent-Union have not arrayed the candidates, who have already been selected and appointed. It is borne out from the judgment dated 21.2.2011 that as many as 1191 candidates had participated in the selection process, including the petitioners and 238 candidates have been selected and offered appointment on 30.8.2005. 12. In the instant case, the members of the respondent-Union have not arrayed the candidates, who have already been selected and appointed. In view of this, the learned Single Judge could not issue direction to the appellants to declare the result and consider all the candidates, who were qualified in the test/interview. We are of the considered view that the selected candidates were necessary party and no relief could be granted to the members of the respondent-Union in the absence of impleadment of necessary parties. 13. Their Lordships of the Hon’ble Supreme Court in J.S.Yadav versus State of Uttar Pradesh and another, (2011) 6 SCC 570 have held as under: “31. No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice. The principles enshrined in the proviso to Order I Rule 9, of the Code of Civil Procedure, 1908 provide that impleadment of a necessary party is mandatory and in case of non-joinder of necessary party, the plaintiff/petitioner may not be entitled for the relief sought by him. The litigant has to ensure that the necessary party is before the Court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In Service Jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity. In case the services of a person is terminated and another person is appointed at his place, in order to get relief, the person appointed at his place is the necessary party for the reason that even if the plaintiff/petitioner succeeds, it may not be possible for the Court to issue direction to accommodate the petitioner without removing the person who filled up the post manned by plaintiff/petitioner. (Vide: Prabodh Verma & Ors. etc. etc. v. State of U.P. & Ors. etc., AIR 1985 SC 167; Ishwar Singh & Ors. v. Kuldip Singh & Ors., 1995 (supp) 1 SCC 179; Tridip Kumar Dingal & Ors. (Vide: Prabodh Verma & Ors. etc. etc. v. State of U.P. & Ors. etc., AIR 1985 SC 167; Ishwar Singh & Ors. v. Kuldip Singh & Ors., 1995 (supp) 1 SCC 179; Tridip Kumar Dingal & Ors. v. State of West Bengal & Ors., (2009) 1 SCC 768; State of Assam v Union of India & Ors., (2010) 10 SCC 408; and Public Service Commission, Uttaranchal v. Mamta Bisht & Ors., AIR 2010 SC 2613). More so, the public exchequer cannot be burdened with the liability to pay the salary of two persons against one sanctioned post. 32. The appellant did not implead any person who had been appointed in his place as a Member of the Commission. More so, he made it clear before the High Court that his cause would be vindicated if the Court made a declaration that he had illegally been dislodged/restrained to continue as a Member of the Commission. In view of the above, he cannot be entitled for any other relief except the declaration in his favour which had been made hereinabove that the impugned Notification dated 28.5.2008 is illegal.” 14. Consequently, in view of the observations and discussions made hereinabove, the Letter Patent Appeal is allowed. The judgment of the learned Single Judge dated 24.12.2010 is set aside. There shall, however, be no order as to costs.