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Himachal Pradesh High Court · body

2012 DIGILAW 965 (HP)

Manju Kumari v. State of Himachal Pradesh

2012-12-11

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud, J. The petitioner has instituted this writ petition praying that writ of mandamus be issued to the respondents directing them to offer appointment as TGT (Arts) to the petitioner on the basis of result declared on 30.10.2002 pursuant to the written test conducted on 29.9.2002 more especially in compliance to the orders of this Hon’ble in CWP No. 3513 of 2009, titled Manoj Kumar and others versus State of Himachal Pradesh and others. 2. It is undisputed before me that in CWP No. 3513 of 2009 (Annexure P-1 to the petition), the writ petitioners had approached this Court with the prayer that a writ of mandamus be issued directing the respondents to complete the process for recruitment of the petitioners for the post of TGT (Arts) and TGT (Medical & Non-Medical) on the basis of the result declared on 30.10.2002. In its decision this Court holds that the appointments were initially held up only on account of announcement of the model code of conduct in connection with Assembly elections in the year 2003 and thereafter the long delay of 6 years is only on account of the inquiry etc. The relevant portion of the judgment reads: “6. The selection process commenced was for appointment to the post of TGT (Medical), TGT (Nonmedical) and TGT (Arts). The appointments were initially help up only on account of announcement of the model code of conduct in connection with Assembly lections in the year 2003, and thereafter the long delay of 6 years is only on account of enquiry on the alleged irregularities in the selection process as far as the TGT (Medical) and TGT (Non-Medical), are concerned. In respect of those streams, the appointments have been made in 2008 and 2009. The only slender defence taken by the State is that the H.P. Subordinate Service Selection Board had already prepared the select list. As far as the TGT(Arts) is concerned, it is not in dispute that the written test h ad already been conducted and results also had been announced. What remained was only the interview and preparation of the select list. In view of the factual matrix, as explained above, we are of the view that it is only proper, just and reasonable that without discriminating the TGT (Arts) candidates, the selection should reach its logical culmination. What remained was only the interview and preparation of the select list. In view of the factual matrix, as explained above, we are of the view that it is only proper, just and reasonable that without discriminating the TGT (Arts) candidates, the selection should reach its logical culmination. The same has been dropped on wholly baseless and irrelevant opinion tendered by the Law Department. No other reason is stated for canceling the selection. In fact, the note file will give an indication that the recommendation was for the completion of the selection process. However, the government apparently was misled by the opinion tendered by the Law Department, which we have extracted above. 7. There is no case that the vacancies are not available. The vacancies do exist and State is in dire need of teachers. The petitioner who participated in the selection process and whose results had already been declared, have a right for legitimate expectation for completion of the process of selection, as far as the notified vacancies are concerned. 8. In that view of the matter, the Writ Petition is allowed. There will be direction to complete the selection process for recruitment to the post of TGT (Arts), from the state it was stopped. The same shall be completed within a period of three months from today.” 3. Learned counsel appearing for the petitioner submits that the directions as issued in Manoj Kumar’s case (supra) are squarely \applicable in the case of the petitioner. Learned counsel submits that on the date of filing of the application, she was eligible in all respondent and belong to IRDP category and the delay, if any, occasioned only on the part of the respondents and not on the part of the petitioner. He submits that this stand established by the judgment of this Court in Manoj Kumar’s case (supra). 4. The relief as prayed for by the petitioner is opposed by the third respondent on the ground that the petitioner has ceased to be a member of the IRDP category for which purpose an application, Annexure R-1, was also filed. He submits that this stand established by the judgment of this Court in Manoj Kumar’s case (supra). 4. The relief as prayed for by the petitioner is opposed by the third respondent on the ground that the petitioner has ceased to be a member of the IRDP category for which purpose an application, Annexure R-1, was also filed. Reliance was also placed on the judgment of Division Bench of this Court in CWP No.4638 of 2009, titled Pushpender Kumar versus State of H.P. and others holding: “The petitioner is aggrieved since he is not considered for selection, though he satisfied the eligibility criteria as on the last date of submission of the application. As rightly been pointed out by the learned Senior Additional Advocate General that the Appointing Authority, as per Annexure P-4, had made it clear that IRDP certificate should be valid on both occasions i.e. on the last date of submission of the application and at the time of interview. Admittedly, the petitioner did not have a valid certificate at the time of interview. The possession of the IRDP certificate being an essential and eligible criterion for selection and since the petitioner did not satisfy that criterion on the date of selection and the date of selection being also the relevant date prescribed by the Appointing Authority, we do not find any merit in the writ petition, which is accordingly dismissed and so the pending application(s), if any.” 5. This is in fact is the gist of the entire submission made on behalf of the parties. It is undisputed before that document Annexure R-1, was submitted by the petitioner. Learned counsel appearing for the petitioner placed reliance upon the decision of the Supreme Court in Dr. M.V. Nair versus Union of India and others, (1993)2 SCC 429 holding: “2. The controversy in this appeal pertains to the appointment of the post of Director in National Research Laboratory for Conservation of Cultural Property (N.R.L.C.) on transfer on deputation basis. The said post was in the scale of Rs.4500-5700 with effect from January 1, 1986. 4. Before the Tribunal it was contended by the respondent, Union of India, that no relaxation was granted in favour of Dr. Nair since he satisfied the eligibility criteria. The said post was in the scale of Rs.4500-5700 with effect from January 1, 1986. 4. Before the Tribunal it was contended by the respondent, Union of India, that no relaxation was granted in favour of Dr. Nair since he satisfied the eligibility criteria. The Tribunal recorded the contentions of the petitioner before them (respondent 3 in this appeal) and those of the respondents before them but did not record any finding on any of those contentions. At the same time, they expressed an opinion that Dr. Bhatnagar should also have been interviewed by the UPSC since in their opinion he too was equally qualified and eligible for the said post like Dr. Nair. Having so found, a direction was given to the respondents before the Tribunal to hold a fresh selection for the said post. It would be appropriate to set out the terms in which the relief was granted: “In the facts and circumstances of the case, the application is disposed of with the direction for the respondents to hold a fresh selection for the post of Director, N.R.L.C. as the applicant has by now become eligible in all respects under the recruitment rules. His suitability should be considered along with other eligible candidates. In case he is found suitable for appointment, he should be appointed to the post of Director, N.R.L.C. The respondents shall comply with the above directions as expeditiously as possible and preferable within a period of six months from the date of communication of this order.” 6. According to the relevant recruitment rules, the eligibility criteria for appointment by promotion/transfer on deputation to the post of Director was the following: “(1) Officers under the Central/State Governments/Universities/Recognized Research Institutions/ Semi-Governments, Statutory or Autonomous Organizations: (a)(i) holding analogous posts, or (ii) with 5 years’ service in posts in the scale of Rs.1500-2000 or equivalent; and (iii) possessing the educational qualifications and experience prescribed for direct recruitments under column 7. (2) The departmental Project Officer with 5 years’ regular service in the grade will also be considered and in case he is selected for appointment to the post, the same shall be deemed to have been filled by promotion. (Period of deputation/contract including the period of deputation in another ex-cadre post held immediately proceeding this appointment in the same organization/department shall not exceed 4 years).” 9. (Period of deputation/contract including the period of deputation in another ex-cadre post held immediately proceeding this appointment in the same organization/department shall not exceed 4 years).” 9. In the above situation, it was necessary for the Tribunal to have recorded a finding on the correctness or otherwise of the above submission of the Union of India and Dr. Nair. Without doing so, the Tribunal could not have set aside the appointment of Dr. Nair to the said post. The Tribunal was also not justified in holding that Dr. Bhatnagar was also equally qualified and eligible for the said post like Dr. Nair when Dr. Bhatnagar had himself come forward with the plea that he was not eligible and asked for grant of relaxation to make him eligible. The Tribunal, in our opinion, was also not justified in stating, in the direction granted by it, that inasmuch as Dr. Bhatnagar “has by now become eligible in all respects under the recruitment rules, his suitability should be considered along with other eligible candidates and if he is found suitable for the appointment he should be appointed to the said post.” It is well settled that suitability and eligibility have to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date.” (pp. 430-434) 6. Learned counsel also places reliance upon the judgment of Division Bench of this Court in Dolly Devi versus State of H.P. and others, Latest HLJ 2009 (HP) 67 to urge that it is the date of the application on which the eligibility is to be considered. Lastly, the learned counsel also places reliance upon the decision of the Supreme Court in Bhupinderpal Singh versus State of Punjab, (2000)5 SCC 262 holding: “12. All the appeals and the writ petitions have been taken up for hearing analogously. The only question arising for decision this case is by reference to which date the eligibility of the several candidates is to be judged and the consequences flowing from the failure to satisfy the eligibility test in the facts and circumstances of the case. 13. All the appeals and the writ petitions have been taken up for hearing analogously. The only question arising for decision this case is by reference to which date the eligibility of the several candidates is to be judged and the consequences flowing from the failure to satisfy the eligibility test in the facts and circumstances of the case. 13. Placing reliance on the decisions of this Court in Ashok Kumar v. Chander Sekhar (1997) 4 SCC 18 , A.P. Public Service Commission v. B. Sarat Chandra (1990)2 SCC 6690, District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi (1990)3 SCC 655 , Rekha Chaturvedi v. University of Rajasthan, 2993 Supp (3) SCC 168, M.V. Nair (Dr) V. Union of India (1993)2 SCC 429 and U.P. Public Service Commission U.P., Allahabad v. Alpana (1994)2 SCC 723 the High Court has held (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decision of this Court and is therefore well settled and hence cannot be found fault with. However there are certain special features of this case which need to be taken care of and justice be done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice. 14. In view of several decisions of this Court relied on by the High Court and referred to hereinabove, it was expected of the State Government notifying the vacancies to have clearly laid down and stated the cut-off date by reference to which the applicants were required to satisfy their eligibility. This was not done. 14. In view of several decisions of this Court relied on by the High Court and referred to hereinabove, it was expected of the State Government notifying the vacancies to have clearly laid down and stated the cut-off date by reference to which the applicants were required to satisfy their eligibility. This was not done. It was pointed out on behalf of the several appellant-petitioners before this Court that the practice prevalent in Punjab has been to determine the eligibility by reference to the date of interview and there are innumerable cases wherein such candidates have been seeking employment as were not eligible on the date of making the applications or the last date appointed for receipt of the applications but were in the process of acquiring eligibility qualifications and did acquire the same by the time they were called for and appeared at the interview. Several such persons have been appointed but no one has challenged their appointments and they have continued to be in public employment. Such a loose practice, though prevalent, cannot be allowed to be continued and must be treated to have been put to an end. The reason is apparent. The applications made by such candidates as were not qualified but were in the process of acquiring eligibility qualifications would be difficult to be scrutinized and subjected to the process of approval or elimination and would only result in creating confusion and uncertainty. Many would be such applicants who would be called to face interview but shall have to be returned blank if they failed to acquire requisite eligibility qualifications by the time of interview. In our opinion the authorities of the State should be tied down to the principles governing the cut off date for testing the eligibility qualifications on the principles deducible from the decided cases of this Court and stated hereinabove which have now to be treated as the settled service jurisprudence. “ 7. This is the crux of the entire law which the Supreme Court has now settled as being the touch stone of service jurisprudence. Advertisement which has been submitted as photo copy only states that the applications were invited for different posts in various departments, applicants should be between 18 to 45 years, eligibility conditions have been prescribed and essential qualifications have been indicated in the attached annexure. Advertisement which has been submitted as photo copy only states that the applications were invited for different posts in various departments, applicants should be between 18 to 45 years, eligibility conditions have been prescribed and essential qualifications have been indicated in the attached annexure. There is no indication as to what would be the cut off date. In Bhupinderpal Singh ‘s case (supra), the Supreme Court upholds that the criteria/cut-off date for considering the eligibility is the date appointed by the relevant service rules and if there be no such cutoff date then by reference to the advertisement. In the absence of both these dates, it shall be the last date appointed by which the applications are to be received by the competent authority. This is the settled principle and calls for no further argument. No material has been placed on record before me to point out that such eligibility was provided by a particular date according to the service rules or by advertisement. Moreover, What I find is that the State has been sleeping over the matter on purported ban having been imposed by the election code. It was only after this Court in CWP No. 3153 of 2009 directed the respondents to complete the selection process. If any, additional document has made the disclosure that as of today the petitioner does not belong to a particular category, that cannot be used as a fact/factor to disentitle the petitioner for employment. This writ petition is accordingly allowed. Direction is issued to the respondents to consider the case of the petitioner to the post of TGT (Arts). No order as to the Costs. 8. All pending miscellaneous applications stand disposed of.