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2013 DIGILAW 125 (HP)

Yogesh Kumar v. State of H. P.

2013-02-28

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, Judge. This judgment will dispose of all the three writ petitions involving similar questions of law and facts. 2. The petitioners seem to be aggrieved from allocation of 7 marks in favour of a candidate belonging to SC/ST/OBC category under the Scheme (Annexure A-2) formulated by the respondents-State for engagement of Junior Engineers on contract basis in various Panchayat Samitis in the State of Himachal Pradesh. Though the petitioners had appeared in the interview held on 19.8.2005 for the post of Junior Engineer to be filled up in Panchayat Samitis, Pragpur and Amb, Districts Kangra and Una respectively, however, they seem to be not selected and later on approached the learned erstwhile Administrative Tribunal by filing these petitions, which on its abolition were transferred to this Court and allotted CWP(T) numbers. 3. The only challenge in the writ petitions is to the allocation of 7 marks out of 100 to the candidates belonging to SC/ST/OBC categories as according to them the distribution of marks to the candidates belonging to a particular category is unconstitutional and ultra vires. Also that in the matter of appointment in Government service there cannot be any discrimination on the basis of sex, caste and creed and rather Constitution provides for reservation in Government service to a particular caste/ category. Additionally, it is also claimed that the applications of such persons who were already working as Junior Engineers in “Sarva Shiksha Abhiyan” and earning more than `68,000/-per annum, have also been entertained and they were allowed to be interviewed and the BPL certificates furnished by them entertained. As per their further version though to their knowledge result has not been declared and they are not aware about the names of the persons selected, however, to their knowledge, one person, namely, Onkar Nath and one more incumbent, who were already employed as Junior Engineers in “Sarva Shiksha Abhiyan” and drawing salary more than `68,000/- per annum are being selected. With this back-ground, the petitioners have claimed the relief common in nature in these writ petitions which reads as follows:- “i) That impugned Notification Annexure A-2 may very kindly be quashed and set aside, in the alternative, sub Clause (f) of Clause (4) in Notification Annexure A-2, may very kindly be set aside and ordered to be deleted with directions to the respondents to consider the candidature of all the candidates treating that there is no sub clause (f) of Clause 4 in Notification Annexure A-2 and then make the selection afresh in the interest of law and justice. ii) That selections as made and disclosed by respondents, the said persons may very kindly be ordered to be added as party-respondents, and their selections as made may very kindly be quashed and set aside to secure the ends of law and justice.” 4. Respondents No.1 to 3 in reply filed to all the three writ petitions in preliminary submissions have submitted that in view of Item No.10 of the Scheme, dated 24.3.2005 (Annexure A-2) any person aggrieved from the selection made under the Scheme may prefer an appeal before the Deputy Commissioner of the concerned district within 30 days from the declaration of the result and that the petitioners have not exhausted such remedy so available to them and, as such, these petitions are not maintainable. 5. On merits, while submitting that making provision to allocate 7 marks out of 100 in favour of SC/ST/OBC candidates without making any provision of reservation of posts in favour of these categories is neither unconstitutional nor ultra vires, more particularly, when similar provisions for awarding marks in favour of the candidates belonging to other categories, such as BPL, handicapped, having no family member in Government service and those local residents of notified Block irrespective of their caste and creed has also been made in the Scheme. It has also been submitted that the result stands declared and candidates selected, namely, S/Shri Yash Pal, Ajit Kumar and Jeevan Rana have even joined their duties also on 11.11.2005. It has also been claimed that mere awarding of 7 marks to the candidates belonging to these categories does not ensure their selection and rather the selection will only be made on the basis of their overall performance in the interview and on merits. 6. It has also been claimed that mere awarding of 7 marks to the candidates belonging to these categories does not ensure their selection and rather the selection will only be made on the basis of their overall performance in the interview and on merits. 6. The response of 4th respondent to these writ petitions is also identical in nature. It is denied that the candidates who were already employed have been selected and offered appointment. In this behalf it is submitted that all the three candidates who have been selected and appointed had submitted unemployment certificates which were duly considered by the Selection Committee and marks awarded to them. 7. Having gone through the record and hearing learned counsel on both sides, in my considered opinion, these writ petitions in the present form are not maintainable; firstly, on account of equally efficacious remedy to prefer an appeal before the Deputy Commissioner of the concerned district being available to the petitioners in terms of Item No.10 of the Scheme, which remedy has not been exhausted by them. Item No.1 of the Scheme reads as follows:- “10. Dispute resolution. : Aggrieved party may prefer an appeal before Deputy Commissioner of the concerned district within 30 days from the declaration of the result. The decision of Deputy Commissioner shall be final.” The petitioners are thus at liberty to exhaust the remedy of appeal in case they are aggrieved in any manner whatsoever from the selection made. All these writ petitions at this stage are thus pre-mature. 8. Secondly, only that part (f) of Item No.4 of the Scheme, which provides for allocation of 7 marks to the candidates belonging to SC/ST/OBC categories has been assailed being unconstitutional and ultra vires and not that part thereof (c to e and g) which provides for allocation of marks to the candidates belonging to all categories, i.e. 5 marks to a candidate belonging to a family living below poverty line (BPL), 3 to the candidates belonging to handicapped category, 5 to those who belong to a family of which no member is in Government service and 5 to the candidates who are residents of the notified Block area. For the sake of convenience, Item No.4 of the Scheme is reproduced herein below :- “4. Distribution of Marks: For selection of the candidates who appear in the interview, the following criteria of marks will be followed: Sr. For the sake of convenience, Item No.4 of the Scheme is reproduced herein below :- “4. Distribution of Marks: For selection of the candidates who appear in the interview, the following criteria of marks will be followed: Sr. Qualification Total Procedure for calculation No. marks (a) Performance in 50 1. Percentage of marks in degree Degree/Diploma divided by 2. 2. Percentage of marks in Diploma divided by 2.5. (b) Experience 10 @ 2 marks per year of experience of relevant nature (c) Candidates 5 belonging to the category of BPL (d) Handicapped 3 - (e) Candidate having 5 no family member in Govt. service (f) SC/ST/OBC 7 - (g) Preference for 5 resident of notified Block. (h) Interview 15 - Total 100 - 9. Surprisingly enough, the allocation of marks under clauses (c), (d), (e) and (g) of Item No.4 ibid has not been assailed/challenged in these writ petitions nor is there even a whisper as to why the allocation of marks to these categories is not unconstitutional or ultra vires. Even no intelligible differentia that the allocation of marks to the candidates belonging to SC/ST/OBC categories is unconstitutional and ultra vires, whereas, to those belonging to categories (a) to (e) and (g) of Item No.4 is not unconstitutional or ultra vires is made out from the perusal of the writ petitions. I am afraid that without satisfying this Court qua this aspect of the matter no relief, what to speak of the relief sought in these writ petitions, can be granted. 10. Thirdly, for non-joinder of the persons selected and appointed, who are necessary parties in these writ petitions, the same cannot be entertained nor the selection set aside. Irrespective of the names of the candidates selected/appointed alongwith their respective addresses having been disclosed by the 4th respondent in reply to the writ petitions, no steps were taken to implead them as party in these writ petitions nor the second prayer in the writ petitions pressed ever since the disclosure of their particulars in the reply filed long back on 20th July, 2006. The selection and appointment of such candidates cannot be quashed and set aside without affording them an opportunity of being heard. Thus, on this score also, these writ petitions deserve dismissal. 11. The selection and appointment of such candidates cannot be quashed and set aside without affording them an opportunity of being heard. Thus, on this score also, these writ petitions deserve dismissal. 11. Any how, the above observations shall remain confined to the disposal of these writ petitions and shall have no bearing on the merits of the case if an appeal is preferred by the petitioners before the Deputy Commissioner concerned. The appellate authority shall decide the appeal if preferred by the petitioners uninfluenced by the above observations of this Court. 12. Therefore, for all the reasons hereinabove, no relief can be granted to the petitioners in these writ petitions and the same rather deserve dismissal. The petitioners, however, are at liberty to exhaust the remedy of appeal as provided under Item No.10 of the Scheme, no doubt, in accordance with law. If they still feel aggrieved from the decision of the appellate authority, may approach the appropriate forum including this Court in accordance with law and observations hereinabove in this judgment. 13. Consequently, all the three petitions fail and the same are dismissed, however, with liberty reserved to the petitioners to approach the appellate authority for the redressal of their grievances, if any, by way of filing an appeal in accordance with law, if so advised. Liberty is also reserved in favour of the petitioners to approach an appropriate forum including this Court in accordance with law qua their surviving grievances, if any. Pending applications, if any, shall also stand disposed of. However, there shall be no order as to costs.