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2013 DIGILAW 568 (HP)

Harpal Singh v. HRTC

2013-06-19

DEV DARSHAN SUD, SANJAY KAROL

body2013
JUDGMENT Sanjay Karol, Judge (Oral) In this petition filed under Article 226 of the Constitution of India, petitioners have assailed the decision taken by the respondent No. 1 in 122nd meeting of Board of Directors held on 22.4.2013 (Annexure P-7) as also the advertisement dated 22.5.2013 (Annexure P-8), inviting applications for filling up 600 posts of drivers on contract basis. 2. Reply filed by the respondents only reveals that there is no effective challenge to the petition. Factual matrix is also not in dispute. In the response, respondent-Corporation has in fact made the following admissions:- “That in reply to this para it is submitted that the petitioners were imparted 15 days training by the replying respondents. It is admitted that the replying respondents have issued advertisement for appointment of drivers on contract basis. It is pertinent to mention that the petitioners and the other persons who were imparted 15 days training and in whose favour the certificates regarding training were issued, the matter regarding their engagement is being referred to the State Government, which is under active consideration before State Government. “ 3.There is a chequered history with regard to filling up the posts of drivers on contract basis, so advertised by the respondent-Corporation from time to time. 4.Significantly, in its 121st meeting of Board of Directors, the respondent-Corporation itself took the following decision:- “BOD has approved to engage the drivers on contract basis from the panel of the year 2006, 2007, 2009, 2011 and 2012 in its 121st meeting held on 31.1.2013”. 5.It is not in dispute that petitioners pertain to the batch for which advertisement was issued in the year 2012. It is also not in dispute that the petitioners have successfully undergone training pursuant to the orders issued by the respondent-Corporation after successful completion of selection process. 6.The question which needs to be considered as to whether, without complying with its own decision taken in its 121st meeting, the Board of Directors of the respondent-Corporation, could have taken a decision for issuance of a fresh advertisement, seeking to fill up 600 posts of drivers, on contract basis, without exhausting the select panel pursuant to the advertisements issued in the year 2006, 2007, 2009, 2011 and 2012. Such decision stands taken by the Board of Directors in its 122nd meeting held on 22.4 .2013. Such decision stands taken by the Board of Directors in its 122nd meeting held on 22.4 .2013. 7.At this juncture, it be also noticed that in the year 2006, respondents issued an advertisement for filling up of 241 posts of drivers on contract basis. With the issuance of Model Code of Conduct, pursuant to declaration of General Assembly Elections in the State of Himachal Pradesh, these posts could not be filled up. The respondent-Corporation issued a fresh advertisement in December, 2008 for filling up 500 posts of drivers on contract basis. 8.Some of the persons, who stood selected pursuant to the advertisement issued in the year 2006, approached this Court seeking appointment. Vide judgment dated 5.1.2010 passed in CWP No. 2976 of 2008, titled as Dev Raj vs. Himachal Road Transport Corporation and another, this Court directed the respondent to give employment to the petitioner therein. This was in relation to the posts so advertised in the year 2006. 9.Even with regard to unfilled posts so advertised in the year 2008, respondents without any reason whatsoever chose not to issue letters of appointment to all the selected candidates. Subsequently, in the year 2009, respondent-Corporation again issued an advertisement for filling up of 550 posts of drivers on contract basis. Even in relation to the said posts, the respondent-Corporation did not issue letters of appointment with respect to all the selected candidates. Resultantly, some of the left out candidates of both the batches approached this Court.Vide judgment dated 9.3.2010 passed in CWP No. 601 of 2010 and connected matters, titled as Chet Ram vs. HRTC and another, this Court again issued the following directions:- “Having heard the learned counsel for the petitioner(s), learned Standing counsel for the corporation and the learned Senior Advocate General, we find that there is some force in the contentions raised by the petitioner(s) herein. No doubt, the candidates in the select list do not have any right to claim appointment, but the Corporation having decided to empanel the Drivers on contract basis, the process having commenced, training having been imparted, requirement still subsisting and the Corporation having appointed 62 out of the 241 persons already selected and the Corporation having still gone for fresh recruitment of 550 Drivers on contract basis and that too on a higher scale of pay, the candidates included in the empanelled list pursuant to the selection process already commenced in the month of September, 2006 have a right to get equal treatment and they are entitled for the appointment by way of a similar treatment as has been given to 62 persons of the select list. But, we find that a number of persons have been appointed on the basis of the subsequent selection process and they are not parties in the writ petitions. However, without affecting their rights, it appears that a solution is possible safeguarding the interest of all parties concerned. In the subsequent selection process commenced on 10.12.2008, the vacancies notified are only 550. We have scanned through the said notification. Nowhere, the Corporation has stated that they would prepare a panel. They have only stated that they require the service of 550 Drivers on contract basis. In other words, notified vacancies are only 550. Once the Corporation exhausts that list of 550, the candidates included in the first list prepared, based on the notification issued in the year 2006, should be engaged 18 according to the availability of vacancies and in accordance with the list already prepared. The selection process in respect of 158 posts in the reserved category may go on; however, in case there are candidates in respect of those reserved vacancies available in the first list prepared by the Corporation, they shall be engaged forthwith and the empanelment in respect of the reserved category by clearing the backlog shall only be in respect of the remaining vacancies. We make it clear that before exhausting the process as above, the Corporation shall not commence any fresh selection process.The writ petitions are accordingly disposed of, so also the pending applications, if any.” (Emphasis supplied) 10.In the year 2011, the respondent-Corporation again issued advertisement for filling up of 125 posts of drivers on contract basis. We make it clear that before exhausting the process as above, the Corporation shall not commence any fresh selection process.The writ petitions are accordingly disposed of, so also the pending applications, if any.” (Emphasis supplied) 10.In the year 2011, the respondent-Corporation again issued advertisement for filling up of 125 posts of drivers on contract basis. The list of selected candidates was prepared, but, appointment was offered only to 33 candidates. For some strange reason, the respondent-Corporation, without filling up of these posts, in the year 2012 again advertised 292 posts of drivers on contract basis. Petitioners herein applied and were duly selected. 11.In the meantime, such of those candidates, who were selected pursuant to the advertisement issued in the year 2011, approached this Court and the learned Single Judge of this Court vide judgment dated 15.6.2012 passed in CWP No. 3489 of 2012 and connected matter, titled as Jagdamba Prasad Sharma vs. State of H.P., directed the Corporation to initiate the process for recruitment of the drivers by considering the cases of select candidates on priority basis. The said judgment stands affirmed by this Court in LPA No. 395 of 2012, titled Managing Director and another vs. Jagtamba Prasad Sharma, which was disposed of vide common judgment dated 5.12.2012, whereby writ petitions of certain aggrieved candidates, were also decided and the operative portion of the same reads as under:- “2. Respondent HRTC has come up in appeal, aggrieved by the common judgment dated 15.6.2012 in CWP No.3489 of 2012, titled as Jagdamba Prasad Sharma versus State of H.P. and others, and connected matters. 3. Issue pertains to the appointment to the posts of drivers in HRTC. The writ petitioners in the connected Civil Writ Petitions have sought for similar treatment as that of the other persons and hence those are also connected with these appeals. 4. All the writ petitioners have been selected for appointment to the post of drivers in the selection conducted in the year 2009. That was a selection for filling up 550 posts, out of which only 464 have been appointed. The rest could not be appointed on account of the direction issued by this Court in CWP No.601 of 2010, titled as Chet Ram versus HRTC and others to the effect that the panel prepared in the year 2007 be exhausted first and thereafter further appointments be made. The rest could not be appointed on account of the direction issued by this Court in CWP No.601 of 2010, titled as Chet Ram versus HRTC and others to the effect that the panel prepared in the year 2007 be exhausted first and thereafter further appointments be made. According to the Corporation, further appointments could not be made on account of appointments of the candidates from the 2007 panel. It is not in dispute that after 2009 no selection has been conducted for appointment to the post of drivers till 2012. 5. Learned Standing Counsel, vehemently contended that the panel prepared in the year 2009 had life only for one year and therefore direction issued by the learned Single Judge for appointment of the writ petitioners, on preferential basis, to the post of drivers cannot be sustained. There appears to be no such period since the Corporation itself has complied with the earlier directions in Chet Ram’s case (supra) for exhausting the 2007 panel. All the writ petitioners had undergone a due selection process and they have been duly selected also. 6. Be that as it may, it is the only contention of the writ petitioners that having been subjected to a proper selection and their names having figured in the select list and that that selection list having not been exhausted, interest of justice would require that they be also appointed against the available or arising vacancies, if any, in the respective category before any further selection is conducted. In fact that is the only direction issued by the learned Single Judge in the judgment under appeal to give preferential treatment as and when recruitment to the post of drivers is conducted. In the facts and circumstances referred to above, there is absolutely no infirmity in that direction.” (Emphasis supplied) 12.In this backdrop the action of the respondent-Corporation now to issue an advertisement to fill up 600 vacant posts of drivers on contract basis, by initiating fresh selection process cannot be said to be reasonable or in consonance with the settled position of law. The action smacks of arbitrariness and unreasonableness apart from being illegal. Persistently, this Court, in the aforesaid decisions, has directed the respondent-Corporation to first exhaust the panel of selected candidates and only thereafter initiate the process for fresh recruitment. The action smacks of arbitrariness and unreasonableness apart from being illegal. Persistently, this Court, in the aforesaid decisions, has directed the respondent-Corporation to first exhaust the panel of selected candidates and only thereafter initiate the process for fresh recruitment. 13.In the teeth of such directions, the action of the respondent-Corporation can only be held to be illegal, arbitrary, capricious and without due and proper application of mind. Not only that, once having taken the decision in its 121st meeting of Board of Directors to exhaust the panel, with respect to the years in question, in the subsequent 122nd meeting, the respondent-Corporation could not be decided to issue an advertisement for filling up the vacant posts by initiating fresh selection process. 14.Noticeably, respondents have placed on record communication dated 11th April, 2013 seeking approval of the State Government to give employment to 340 candidates, who have successfully completed their 15 days training. The respondents in the very said communication have admitted that 392 vacancies of drivers, to be filled upon contract basis, exist as on 31.12.2012. As such, without giving appointment to the successful candidates, out of the panel so prepared by the respondent-Corporation, the action of the respondents in issuing a fresh advertisement can only held to be illegal and is accordingly quashed and set aside. 15.With the aforesaid observations, the present petition is allowed with a direction that the respondent-Corporation shall not fill up 600 posts so advertised till such time the panel prepared by the respondent-Corporation in the years 2006, 2007, 2009, 2011 and 2012 is fully exhausted. All consequential actions shall positively be taken within a period of three weeks from today.