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2012 DIGILAW 215 (HP)

STATE OF HIMACHAL PRADESH v. POONAM KAUSHAL

2012-04-20

R.B.MISRA, RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. 1. This Letters Patent Appeal is directed against the judgment dated 23.2.2011 passed by the learned single judge in CWP No. 1744 of 2009. 2. Material facts necessary for the adjudication of this appeal are that respondent No. 2, i.e. Himachal Pradesh Public Service Commission issued advertisement No.XV/95 dated 1.2.1996 and VI/1996 dated 5.12.1996 whereby applications were invited for filling up 14 posts of Homoeopathic Doctor (Class-II Gazetted), now Homoeopathic Medical Officer (Class-I Gazetted). Respondent No. 1 along with proforma respondent No. 3 Jugal Kishore submitted applications for considering her candidature to respondent No. 2 Himachal Pradesh Public Service Commission. Proforma respondent No. 3, namely Jugal Kishore filed original application bearing O.A. No. 1114/1997. Learned Tribunal permitted him to appear in the interview vide order dated 13.6.1997. Dr. Jugal Kishore appeared in the interview on 16.6.1997. O.A. 1114/1997 was decided by the erstwhile Himachal Pradesh Administrative Tribunal on 29.9.1999. The Himachal Pradesh Public Service Commission was directed to declare the result of respondent No. 3 and to take further action. Consequently, respondent No. 3 was appointed in the year 1999. Respondent No. 1 Poonam Kaushal also filed O.A. No. 1284/1997 before the Tribunal. However, ad interim relief was not granted to her. O.A. No. 1284/1997 was transferred to this Court and assigned CWP (T) No. 4441/2008. The same was disposed by the learned Single Judge on 20.4.2009 by permitting her to assail the appointment made pursuant to the interview held in the year 1997. In fact, respondent No. 1 Dr. Poonam Kaushal had already made representation to Hon'ble the Chief Minister on 18.2.2009 for the redressal of her grievance. She was apprised vide communication dated 21.4.2009 that the representation was sent to the Secretary, Himachal Pradesh Public Service Commission for inquiry. He has reported that her candidature was rejected along with other candidates for the reason that she was not fulfilling the terms of essential qualifications required for the posts advertised in the year 1996 since she had passed diploma in Homeopathy after 1983. Respondent No.1 filed CWP No. 1744/2009 seeking appointment as Homoeopathic Doctor (Class-II Gazetted) in view of the interview held on 16.6.1997. Replies were filed by respondents No. 1, 2, 3 and 4. Respondent No.1 filed CWP No. 1744/2009 seeking appointment as Homoeopathic Doctor (Class-II Gazetted) in view of the interview held on 16.6.1997. Replies were filed by respondents No. 1, 2, 3 and 4. Learned Single Judge allowed the writ petition on 23.2.2011 on the basis of judgment rendered by the Tribunal in O.A. No. 1114/1997 decided on 29.9.1999 and after relying upon the judgment rendered by a Division Bench of this Court in CWP No. 1807/2010, titled Prem Raj vs. State of H.P. and Others decided on 5.5.2010. The State has assailed the judgment dated 23.2.2011 by way of present Letters Patent Appeal. 3. Mr. J.S. Guleria, Assistant Advocate General has strenuously argued that respondent No. 1 Poonam Kaushal was not eligible and her candidature could not be ordered to be considered by the learned Single Judge. According to him, there was no similarity in the case of Dr. Poonam Kaushal and Dr. Jugal Kishore. 4. Mr. Tarlok Chauhan has supported the judgment of the learned Single Judge. 5. We have heard the learned counsel for the parties and have gone through the pleadings and judgment of the learned Single Judge carefully. 6. What emerges from the facts enumerated here in above is that Dr. Poonam Kaushal and Dr. Jugal Kishore had submitted applications for considering their candidature for the post of Homeopathic Doctor (Class II Gazetted). They were not issued call letters. Respondent No. 1 Poonam Kaushal and proforma respondent No. 3 Jugal Kishore approached erstwhile Himachal Pradesh Administrative Tribunal by way of O.A. No. 1114/94 and O.A. No. 1284/1997. In the case of proforma respondent No. 3, he was permitted to appear in the interview on 16.6.1997 by the learned Tribunal. Thereafter, the O.A. filed by Dr. Jugal Kishore was decided on 29.9.1999. However, the fact of the matter is that Dr. Poonam Kaushal was not granted interim relief by the Tribunal and her original application was transferred to this Court and was assigned CWP (T) No. 4441/2008. It was decided on 20.4.2009. Respondent No. 1 Poonam Kaushal was not permitted to appear in the interview on the analogy of Dr. Jugal Kishore by the Tribunal. Learned Tribunal decided O.A. No. 1114/1997 on 29.9.1999 directing the Himachal Pradesh Public Service Commission to declare the result of respondent No. 3 and to take further action. His name was recommended and subsequently appointment was offered. Respondent No. 1 Poonam Kaushal was not permitted to appear in the interview on the analogy of Dr. Jugal Kishore by the Tribunal. Learned Tribunal decided O.A. No. 1114/1997 on 29.9.1999 directing the Himachal Pradesh Public Service Commission to declare the result of respondent No. 3 and to take further action. His name was recommended and subsequently appointment was offered. It has come in the reply of State that three posts were lying vacant, including general category. It has also come in the reply of respondent No. 2 that Dr. Poonam Kaushal as well as Dr. Jugal Kishore were not eligible for appointment since they have obtained diploma after 11.5.1983. The operative portion of the judgment dated 29.9.1999 reads thus: "We have heard the learned counsel of the parties and considered their arguments. It is on record that relaxation has been given in the case of those candidates who had obtained four year diploma upto 1983 and such candidates have been treated at par with others having five and half years degree to their credit. This has apparently been done because the respondents wanted to give a fair treatment to those candidates who had already completed their diploma. On the same analogy, one time relaxation could be made for those also who were already in the process of acquiring such diplomas, so that the applicants are treated similar, as their predecessors. This Tribunal has already by way of interim relief allowed the applicants to appear in the tests fixed for June 16, 1997 on the conditions contained in preceding para, we accept the original application and direct that the result of the test may be declared and further action taken on the basis of this result with no order to costs." 7. The learned Tribunal has held that since the relaxation has already been given to those candidates who had obtained four years diploma in the year 1983, the same analogy of one time relaxation could be made to those candidates who were already in the process of acquiring such diplomas, so that they could be treated similar as their predecessors. Case of respondent No. 1 and proforma respondent No. 3 was same. Rather, they were class fellows. In view of the judgment of the learned Tribunal case of respondent No. 1 ought to have been considered by the Himachal Pradesh Public Service Commission. Case of respondent No. 1 and proforma respondent No. 3 was same. Rather, they were class fellows. In view of the judgment of the learned Tribunal case of respondent No. 1 ought to have been considered by the Himachal Pradesh Public Service Commission. Learned Single Judge has rightly taken into consideration the judgment rendered by a Division Bench of learned Tribunal in O.A. No. 1114 of 1997. The judgment rendered by learned Tribunal was in rem and not in personam and the ratio would apply in the case Dr. Poonam Kaushal. The representation made by respondent No. 1 has wrongly been rejected on 21.4.2009. There is no illegality or infirmity in the judgment of the learned Single Judge dated 23.2.2011. 8. Accordingly, in view of the observations and analysis made here in above, there is no merit in the Letters Patent Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.