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Himachal Pradesh High Court · body

2012 DIGILAW 671 (HP)

Bhushan Lal Sharma v. State of H. P.

2012-10-03

SURINDER SINGH

body2012
Judgment Surinder Singh, J. 1. Both the above titled petitions were filed before the erstwhile Tribunal, after its abolition these were transferred to this Court as such registered as Writ Petitions, whereby the selection, of the private respondents for the posts of Assistant Engineer (Civil) Class-I in IPH Department of the State Government has been questioned. 2. Heard and gone through the record. 3. Precisely the facts worth mentioning are that the 2nd respondent-Himachal Pradesh Public Service Commission, in short ‘the Commission’ issued Advertisement No.II of 2003 inviting applications on prescribed proforma from the eligible candidates for the various posts, including six posts of Assistant Engineers (Civil) Gazetted Class-I. Out of these six posts, five were reserved for general ex-servicemen and one for Scheduled Caste ex-serviceman (backlog). The interviews were conducted on 6th, 7th and 8th January, 2004 by the Selection Committee constituted by the Commission of two experts and they recommended the names of six candidates including the petitioners. A controversy arose regarding these recommendations. Accordingly, both the petitioners filed CWP No.97 of 2004 seeking appropriate directions in view of the differences which had arisen between the Members of the Selection Committee. The Principal Bench of this Court headed by the then Hon’ble Chief Justice Shri V.K. Gupta took note of various facts giving rise to the controversy, finally disposed of the petition vide a detailed order dated 22.4.2004 (Annexure A-1) by issuing the following directions: “1. Respondent No.2 shall undertake fresh selection process but by limiting the consideration to the eligible candidates, who had applied pursuant to the Advertisement in question. Accordingly, therefore, the recommendation, if any, sent by the Commission to the Government recommending six names as per List ‘A” is quashed and set aside. 2. The Commission/Government of Himachal Pradesh, shall consider effectively the question of amending the Rules of Business of the Commission so as to ensure that effective steps are taken in future with a view to allaying all apprehensions and plugging all loopholes in as much as, in future no one is allowed to accuse any one of any interpolation and that a foolproof mechanism is built so that there is no scope for any interpolation or any tampering of the documents. Till that is done, we direct as under: (i) The column 10 Interview Sheet shall be filled in each day, by the Chairperson of the Interview Board, but, even though it is filled in by the Chairperson of the Interview Board, each such 10 column Interview Sheet shall be signed by all the Members of the Board, including the experts even if they are not the Members of the Commission. The accompanying Interview Form, as heretobefore, has to be signed by all these persons, but only after they have put their signatures on the 10 column Interview Sheet. The accompanying Interview Form shall contain an endorsement by way of an addition of a fresh column that the persons comprising the Board, the Members of the Commission as well as the experts-non-Members, have all signed the interview form in token of their having seen and approved and signed, the accompanying 10 column Interview Sheet and that they have signed this Form after they have seen the Interview Sheet duly complete in all respects and satisfied themselves about its correctness. The Interview Form thus signed and the Interview Sheet thus signed by all the Members comprising the Board shall on the same day be sealed by an officer of the Commission, either the Secretary of the Commission or an Officer lower in rank to Secretary duly nominated by the Chairperson of the Commission, in the presence of all these Members comprising the Interview Board, and all such Forms and Sheets should be kept in the safe custody of the Secretary of the Commission, to be acted upon and used, as and when required.” 4. The 2nd respondent thereafter conducted the interviews again on 26th and 27th October, 2004 without amending the Rules of Business. Both the petitioners had appeared in the interview and the result was declared on 16.11.2004, but the names of the petitioners did not find mentioned therein. Thus, without harbouring any grievance regarding the manner and conducting fresh interviews, they only laid challenge to the recommendations qua the names of the private respondents herein, to the 1st respondent for their appointment. 5. It shall not be out of place to mention that the 3rd respondent did not join, as such, his name was ordered to be deleted vide order dated 8.3.201. Now the petitions survive only against 4th and 5th respondents. 6. 5. It shall not be out of place to mention that the 3rd respondent did not join, as such, his name was ordered to be deleted vide order dated 8.3.201. Now the petitions survive only against 4th and 5th respondents. 6. In fact, the respondent-Commission vide its advertisement aforesaid had inter alia advertised six posts, five reserved for general ex-servicemen, one for ex-serviceman (backlog); in case of non-availability of the candidates of ex-servicemen, posts were to be filled up amongst the ward of respective categories as such ward of ex-servicemen could apply for the post of Assistant Engineer in IPH Department of the State Government. 7. To be precise, Shri Tarlok Chauhan, learned Counsel for the petitioners submitted that respondent No.4 Sumit Sood was already employed as Junior Engineer in HP PWD, thus he was not a dependent son/ward of ex-serviceman father/guardian, as such did not fall in the definition of wards/dependents of ex-serviceman and also that he had suppressed this fact while submitting his application to the 2nd respondent, whereas respondent No.5 Rakesh Rana lacked the eligibility criteria as (i) he did not possess a degree in Civil Engineering or its equivalent qualification as per the rules, and (ii) his father being ex-servicemen had already availed the benefit as he was already appointed against a vacancy reserved for ex-serviceman. 8. The stand taken by the first respondent is that the respondent-Commission had recommended six candidates which included the private respondents to the State Government for appointment to the above posts against the posts reserved for wards of ex-servicemen. On the receipt of the above recommendations they were offered appointment after completing all the codal formalities. Out of the above candidates Rajesh Kumar did not join. It is stated that Ajay Sharma petitioner had made a complaint alleging that Sumit Sood and Rakesh Rana respondents did not fall within the eligibility criteria, on this a thorough enquiry was ordered to be held by the Deputy Commissioner/ Sub Divisional Magistrate as well as the head of the Department. It is stated that Ajay Sharma petitioner had made a complaint alleging that Sumit Sood and Rakesh Rana respondents did not fall within the eligibility criteria, on this a thorough enquiry was ordered to be held by the Deputy Commissioner/ Sub Divisional Magistrate as well as the head of the Department. After enquiry it was reported that Sumit Sood had himself availed the benefit of ex-serviceman, while getting into the service as J.E. (PWD) and the father of respondent No.5 Rakesh Rana, had also availed the benefit of ex-serviceman by getting himself employed in IPH department as Stenographer, which was also confirmed by the Engineer-in-Chief, IPH, thus a show cause notice was issued to both the respondents for terminating their services on account of false information furnished to the department. They laid challenge to it before the erstwhile Tribunal by filing OAs which, on its abolition were also transferred to this Court but these petitions were dismissed being not maintainable against the issuance of show cause notice. 9. Thereafter the 1st respondent referred the case to the State law-department for their opinion. Precisely, the law-department advised to follow the established procedure qua Rakesh Rana who was already given an opportunity to explain his position alongwith the case of one Sanjay Kumar, AE, but further proceedings were deferred by the st respondent for the time being as his case was similar to one Sanjay Kumar, which was under process. However, qua Sumit Sood, a clarification was sought from the Department of Personnel and in view of the advice quoted therein the relevancy of dependency did not seem to be applicable in his case. He did not get the employment benefit of being availed to the ex-serviceman. Therefore, the respondent-department took a conscious decision to withdraw the show cause notice issued against Sumit Sood. The petitioners also disputed the clarification aforesaid by filing their counter-affidavits. 10. Respondent No.4 Sumit Sood in his reply submitted that he was appointed as Junior Engineer HP PWD as a general category candidate and not against the post reserved for the ward of an ex-serviceman, nor his father had ever availed any such benefit under the aforesaid quota. The petitioners also disputed the clarification aforesaid by filing their counter-affidavits. 10. Respondent No.4 Sumit Sood in his reply submitted that he was appointed as Junior Engineer HP PWD as a general category candidate and not against the post reserved for the ward of an ex-serviceman, nor his father had ever availed any such benefit under the aforesaid quota. He applied for the subsequent higher post of Assistant Engineer in IPH Department; in his capacity as ward of ex-serviceman without suppressing any fact and ‘No Objection’ was obtained from his previous employer in terms of the advertisement, which also conveyed that in-service candidate may apply by submitting advance information to its employer. The said respondent also took support from the clarification/instructions of the Department of Personnel Annexure R4/A1, to show that there is no bar for the wards of the ex-servicemen who have not availed any benefit of reservation. In his supplementary affidavit dated 7.8.2011 he further elaborated his stand taken in the reply filed on 31.3.2011. 11. The contention of Shri Rakesh Rana, 5th respondent, is that after having passed diploma in Civil Engineering and after acquiring more than five years experience in the field of Civil Engineering, passed direct final examination in Building and Quantity Surveying from the Institution of Surveyors, copy whereof is Ext.R-5/1. The copy of the marks-list issued by the Institute of Surveyors to him with respect to the examination passed is Annexure R-5/2 and that of the diploma in Civil Engineering obtained by him is Annexure R-5/3. According to him, he had passed the final examination in ‘Building and Quantity Surveying’ from the Institution of Surveyors, which is equivalent to degree in Civil Engineering for the recruitment of superior post in appropriate field, as per letter dated 26.12.2003 Annexure R-5/4. It is recognized by the Ministry of Human Resource Development, Department of Secondary and Higher Education, Government of India, the final examination of the Institution of Surveyors (India) in Buildings, Quantity and Valuation. It is also stated that surveying is a recognized qualification equivalent to Bachelor’s degree under the Central Government as per Annexure R-5/5 and also as per the Indian Surveyor, January, 2003, extract whereof is Annexure R-5/6, the final examination of the Institution of Surveyors, in inter alia Building, Quantity and Valuation Surveying, is a recognized qualification in engineering field of the level of a degree. He also relied upon the clarification sought by one Shri Karan Singh with respect to the similar status from the UPSC. Vide Annexure R-5/7 it was informed that the final examination of the Institution of Surveyors (India) in the Building and Quantity Surveying was recognized by the Government of India, as equivalent to a degree in Engineering for the purpose of recruitment to superior services/posts under the Central Government and those candidates holding the said qualification were eligible for admission to the Engineering Service Examination conducted by the Commission. He also banked upon a letter dated 28.12.1979 issued by the Government of India, Ministry of Social Welfare (Department of Education) (Annexure R-5/8), whereby it was conveyed that the final examination of the Institution of Surveyors (India) in a branch inter-alia of Building, Quantity and Valuation Surveying has been recognized by the Government of India for the purpose of recruitment to superior posts and services under the Central Government for which the minimum prescribed qualification is a Bachelor’s degree from a recognized University. Thus, on the strength of above, the replying respondent applied for the post in question being an associate member of the Institution of Engineers, which was also recognized by the Government of India equivalent to Bachelor degree in the appropriate field of engineering for recruitment to superior posts and services under the Central Government (Annexure R-5/9). Thus it is contended that his certificates were duly scrutinized at the appropriate level by the authorities in accordance with R&P Rules, but in his reply he did not contest the allegation that his father had already availed the benefits, therefore, he was not eligible to be selected for the said post. 12. In his supplementary affidavit dated 2.8.2009, respondent No.5 placed on record the certificate from the Institution of Surveyors Annexure S-1, according to which the pass-in Final/Direct Final Examination of the Institution of Surveyors is accepted by Government of India as equivalent to degree in engineering and the degree is to be seen in the context of the subjects covered in the final/direct final examination which encompasses the subjects of Civil Engineering, Management of Project, Quality Control, Contract Law and Arbitration which is allied to Civil Engineering and not to other degree in Engineering like Electrical or Mechanical and there is no need to have separate approval from AICTE/UGC, as per letter dated 2.4.2008, enclosed. 13. 13. Now, the advertisement No.II/2003 issued by the 2nd respondent, i.e., HP Public Service Commission particularly needs to be taken note of, vide which the applications were invited for various posts on the standard performa appended to it. The post in question is referred in para (C), whereby the number of the posts reserved is mentioned in the note mentioning that in case the candidates of ex-servicemen category are not available, posts will be filled-up amongst the ward of respective categories as such ward of ex-servicemen may apply. Pertinently, there is no reference that the dependents of ward of ex-servicemen could only apply. 14. The 4th respondent Sumit Sood vide his application Annexure R-4/B against column No.8 had mentioned that he was a ‘ward of ex-serviceman’ and this was the category against which he had applied for the said post. Further, the 2nd respondent vide letter (Annexure P-4D) addressed to him inter alia sought documents qua ‘no objection’ from the employer and vide note appended to it in law also required him to produce an affidavit that no other son/daughter of his father has been provided employment against the vacancies reserved for ex-serviceman at the time of interview to which he did. But as already stated above, the advertisement aforesaid did not say any where that the candidate should be a dependent ward of the ex-serviceman to be eligible for the post of Assistant Engineer in the IPH Department. 15. But, however, the learned Counsel for the petitioners referred to the format of the application which was published in the advertisement Annexure R-4/A that column No.8 did prescribe the names of various categories wherein there is a reference of the ward of ex-servicemen. This reference, in my opinion is not enough to debar the 4th respondent to apply for the said post when para (c) of the advertisement did not say that the dependent of an ex-serviceman is only eligible. Further there is nothing on record to show that Sumit Sood (4th respondent) had already availed the benefit earlier being the ward of the ex-serviceman. Further when the ward of ex-serviceman who has been selected against the general quota in a junior level government post can also avail the benefit of ex-serviceman. Further there is nothing on record to show that Sumit Sood (4th respondent) had already availed the benefit earlier being the ward of the ex-serviceman. Further when the ward of ex-serviceman who has been selected against the general quota in a junior level government post can also avail the benefit of ex-serviceman. Further, per the instructions dated 7.1.1993 (Annexure R-4/A) issued by the State Government, clearly spell out that the benefit of reservation can be availed once for higher post in the Government Department, if it has not been availed earlier. 16. The another contention of the learned Counsel for the petitioners that the 4th respondent Sumit Sood furnished the certificate Annexure P-13 contrary to Annexure R-5/11 dated 25.7.1983 by deliberately deleting the words that he was the dependent son of the ex-serviceman is also rejected because when there has been no such stipulation in the advertisement aforesaid its deletion cannot be said to be a deliberate suppression of facts. Therefore, for the above reasons, I do not find any illegality in his recommendation made by the 2nd respondent to the State Government for his appointment for the said post. 17. In so far as the 5th respondent Rakesh Rana is concerned, the petitioners have launched their attack firstly qua his qualification and secondly, that his father had already availed the benefit of his being an ex-serviceman, in civil employment. The advertisement referred to above, indicates that the essential qualification for the post of Assistant Engineer in the said Department is a degree in Civil Engineering or its equivalent from an institution/University duly recognized by the Central/State Government. 18. The said respondent had passed from the Institution of Surveyors in Building and Quantity Surveying in September, 2002 with various subjects mentioned in Annexure R-5/2 (detail-marks). Though, there is a discrepancy in date, may be typographic, yet it stands proved that his year of passing is September, 2002 as aforesaid. He also did his diploma in Civil Engineering on 1.8.1994 Annexure R-5/3 in first division from Himachal Pradesh Takniki Shiksha Board. Though, there is a discrepancy in date, may be typographic, yet it stands proved that his year of passing is September, 2002 as aforesaid. He also did his diploma in Civil Engineering on 1.8.1994 Annexure R-5/3 in first division from Himachal Pradesh Takniki Shiksha Board. As per the clarification issued by the Institution of Surveyors Annexure R-5/4, direct final examination in Building and Quantity Surveying, is equivalent to Degree in Civil Engineering for the recruitment of superior posts in its appropriate field and further the Ministry of Human Resources Development, Department of Secondary and Higher Education Annexure R-5/5 also confirmed that the reorganization/ equivalence of education qualification is that the final examination of the Institution of Surveyors (India) in any of the following branches, is equivalent degree for the purpose of recruitment to the post and service under the Central Government in any appropriate field: (a) Land Surveying, (b) Hydrographic Surveying, (c) Buildings, Quantity and Valuation Surveying. 19. Further, as per Indian Surveyor, January, 2003 Annexure R-5/6, the final examination of the Institution of Surveyors in India, inter alia Building, Quantity and Valuation Surveying, is a recognized qualification for the purpose of recruitment to superior services/ posts under the Central Government. A clarification was issued qua one Shri Karan Singh informing that such final examination of the Institution of Surveyors was recognized by the Government of India equivalent to a degree in Engineering for the purpose of recruitment to superior services/ posts under the Central Government and the candidates holding such qualification are eligible to admission to the Engineering Service Examination conducted by the Commission. Even the Assistant Educational Adviser (Technical), Government of India, Ministry of Education and Social Welfare, vide Annexure R-5/8 dated 28.12.1979 certified that the pass in the final examination of the Institution of Surveyors (India) in any of the branches referred to above is recognized by the Government of India for the purposes of recruitment to superior posts and services under the Central Government in the appropriate field. Further for the superior posts and services are those for which the minimum prescribed qualification is a Bachelor’s degree from a recognized University, which fact stands substantiated by the letter dated 16.8.1978 (Annexure R-5/9) issued by the Government of India, Ministry of Education and Social Welfare. Further for the superior posts and services are those for which the minimum prescribed qualification is a Bachelor’s degree from a recognized University, which fact stands substantiated by the letter dated 16.8.1978 (Annexure R-5/9) issued by the Government of India, Ministry of Education and Social Welfare. Thus from the above it is clear that the 5th respondent possesses the qualification which stands recognized by the Government of India at par with the degree qualification which is the essential qualification for the posts of Assistant Engineer for which he had applied for. Further, the 2nd respondent is an expert body and after scrutinizing his application qua the qualification found that his qualification was in conformity with the R&P Rules. Once the 2nd respondent had taken such a decision and looked into this question of eligibility criteria, in my considered opinion, the petitioners can also not question his eligibility. 20. Another crucial question is whether the 5th respondent fell within the criteria as a ward of ex-serviceman having not availed himself or by his father earlier such a benefit? 21. One of the eligibility criteria of the dependent son/daughter of an ex-serviceman for the post reserved for ex-serviceman is that neither he nor his father/guardian should have been rehabilitated through employment with the State Government/Semi-Government/Corporations/Boards/ Autonomous Bodies of the State. In other words, only those candidates, who neither had availed such a benefit nor their parents/guardian, would only fall in the eligibility criteria for being selected against the said post. 22. According to the 5th respondent, he furnished the certificate on the form at Annexure ‘A’ and the affidavit on the form at Annexure ‘B’ of the letter Annexure R-5/13 and whereas at no point of time either in the advertisement or at the time of interview he was ever called upon to disclose as to whether his father had been appointed against a vacancy reserved for ex-serviceman. Therefore, he disclosed the information which was required to be submitted by him in the shape of certificate/affidavit, as per prescribed format. Therefore, he disclosed the information which was required to be submitted by him in the shape of certificate/affidavit, as per prescribed format. Therefore, in these circumstances, he cannot be said to have played a fraud by suppressing the facts, but admittedly his father had already availed such a benefit earlier by getting himself employed in the IPH Department as a Stenographer, as stated by Shri Narinder Chauhan, IAS, Principal Secretary (IPH) in para-5 of his affidavit dated 6.8.2011 duly supported by the communications received from the concerned Department (Annexures R-III to V). As such, the 5th respondent is not entitled to seek similar benefit. Therefore, his recommendation by the 2nd respondent and consequently his appointment by the 1st respondent as Assistant Engineer in the IPH Department is contrary to the rules, thus deserves and is accordingly to be quashed and set aside. Petitions are partly allowed. 23. The position which now emerges is that 3rd respondent Rakesh Kumar did not join the post of Assistant Engineer and the selection of 5th respondent Rakesh Rana is set aside. The selection of 4th respondent cannot be faulted with for the reasons mentioned above and vide order dated 30.5.2005 passed by the erstwhile Tribunal in both these petitions directed that the appointments of the private respondents was subject to the decision of their petitions. Thus, there remain two vacancies to be filled-in by respondents No.1 and 2. Now as a consequence of both the petitions having been allowed partly, the 1st respondent is directed to call for the name of next two meritorious candidates from the 2nd respondent and offer them the appointment as Assistant Engineer in IPH Department after completing the codal formalities within a period of two months from today. 24. Further, it is directed and expected from the 2nd respondent that while issuing advertisement for the post(s) apart from the eligibility criteria they should clearly indicate as to what is other essentiality to what the candidates are expected to certify while submitting the information on the prescribed proforma/form so as to avoid any aspersion, misunderstanding and unwarranted litigation, with these directions both the petitions stand disposed of.