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2013 DIGILAW 275 (HP)

ANIL KUMAR v. PRAMODH SINGH

2013-04-08

A.M.KHANWILKAR, R.B.MISRA

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JUDGMENT AJAY MANIKRAO KHANWILKAR, CJ. - 1. HEARD counsel for the parties. Rule. Rule made returnable forthwith. Counsel for the respondent waive notice. By consent, taken up for final disposal forthwith. 2. THIS petition takes exception to the judgment of the H.P. State Administrative Tribunal, Shimla, Bench at Dharmshala dated 24.8.1997 in O.A. (D) No. 266/97. Briefly stated, the petitioner before this Court as well as respondent No.1, participated in the selection process for the appointment of Part Time Water Carrier. Amongst them, the petitioner was selected on the basis of the recommendations made by the duly constituted selection committee. The petitioner came to be appointed on regular post of Part Time Water Carrier in 1997. Since then, the petitioner is working in that post uninterruptedly. 3. THE respondent No.3, however, filed the Original Application before the Tribunal to challenge the selection process as well as the appointment of the petitioner as Part Time Water Carrier. The Tribunal inspite of having noticed the decision of the Apex Court in the case of Durga Devi Vs. State of H.P. AIR 1997 SC 2618 , went on to allow the Original Application on the sole ground that the scheme formulated by the State Government, Annexure A-5, which was on record before it, was applicable to the case in hand. In that, it was the policy of the Government to treat the appointment made on contract basis to be deemed against regular Part Time Water Carrier posts. That is the sole reason recorded by the Tribunal to allow the Original Application filed by respondent No.1 and to set aside the appointment of the petitioner against regular post of Part Time Water Carrier. 4. AS regards the principle expounded in the decision of the Apex Court in Durga Devi's case, counsel for respondent No.1, in all fairness, accepts that the same is unexceptional. Therefore, the core question that arises for our consideration is whether the Tribunal was right in distinguishing the said decision of the Apex Court by invoking the Government policy Annexure A-5. In the first place, the Tribunal has completely glossed over the fact that the appointment of the petitioner was not to be made on contract basis, but on the post of Part Time Water Carrier after being notified and following the selection process by a duly constituted selection committee. Even the respondent No.1 participated in that process, but was unsuccessful. In the first place, the Tribunal has completely glossed over the fact that the appointment of the petitioner was not to be made on contract basis, but on the post of Part Time Water Carrier after being notified and following the selection process by a duly constituted selection committee. Even the respondent No.1 participated in that process, but was unsuccessful. The fact that respondent No.1 was working on contract basis as water carrier for some time before participating in the selection process, that cannot enure any right to him. The Government policy Annexure P-5 will be of no avail in the matter where the appointment to the post of Part Time Water Carrier was to be made by following regular selection process. Thus understood, the fact that the respondent No.1 had more experience will be of no avail. In our view, therefore, the Tribunal has completely misdirected itself in relying on the policy to distinguish the principle stated in the decision of the Apex Court, which clearly holds that once the selection process is undertaken, it is not open to the Tribunal to sit over the decision of the selection committee as a Court of appeal. No judicial review of that decision is possible. Further, the respondent No.1 is not in a position to point out that the advertisement as was issued, expressly provided that the candidate with more experience would be preferred in case of equal marks obtained by the competing candidates. In such a situation, the selection process would largely depend on the subjective satisfaction of the selection committee. That satisfaction cannot be lightly brushed aside unless, it is contrary to the provisions of Constitution of India or law made thereunder. In our opinion, therefore, the decision of the Tribunal cannot stand the test of judicial scrutiny. There is yet another decision to dispel the arguments of respondent No.1. The Constitution Bench of the Apex Court in Secretary, State of Karnataka and others versus Uma Devi (3) and others, reported in (2006) 4 SCC 1 , has held that the candidate appointed on temporary basis cannot be made permanent or appointed against a regular post unless selected in the selection process to be held for that purpose. 5. The Constitution Bench of the Apex Court in Secretary, State of Karnataka and others versus Uma Devi (3) and others, reported in (2006) 4 SCC 1 , has held that the candidate appointed on temporary basis cannot be made permanent or appointed against a regular post unless selected in the selection process to be held for that purpose. 5. SUFFICE it to observe that in the present matter since the selection process was held on the basis of terms and conditions duly notified; and respondent No.1 having unsuccessfully participated in the said process without any demurer, it is not open to respondent No.1 to challenge the selection of the petitioner by the duly constituted selection committee, which, obviously, is the subjective satisfaction of the concerned selection committee. 6. ACCORDINGLY, this petition succeeds. The impugned decision is quashed and set aside. With the result, the original application filed by respondent No.1 before the Tribunal also stands dismissed. Needless to observe that the petitioner, who is in service since 1997, would be entitled to all consequential benefits. Rule made absolute on the above terms with no order as to costs.