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2014 DIGILAW 1031 (HP)

Kewal Singh v. State of Himachal Pradesh

2014-08-04

V.K.SHARMA

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JUDGMENT V.K. Sharma, J. 1. The petitioners, who are serving Home Guards personnel, participated in the process for recruitment to the post of Constable in the Police Department held during the year 2010 against 15% quota meant for their category. The requisite advertisement, Annexure P-1, was issued vide recruitment notice dated 6.1.2010. The last date for submission of applications was 28.2.2010. Recruitment notice, Annexure P-1, provided inter alia as under:- “A processing fee of Rs. 100/- (One hundred) only shall be charged from each candidate from the General category and Rs. 25/- (twenty five) only from each candidate belonging to the categories of the SC/ST/OBC dependants of Freedom Fighters/IRDP/Wards of Ex-Servicemen in the shape of a Bank draft or I.P.Os. to be drawn in favour of Managing Director, Himachal Pradesh State Electronics Development Corporation, Khalini Shimla-171002. Any application not accompanied the requisite processing fee or not received by the last date for receipt of application will not be entertained.” 2. Indisputably the petitioners belong to Gaddi Scheduled Tribe of Bharmour, District Chamba (HP). Accordingly, while submitting application forms (format Annexure P-2), they disclosed their status as such and paid processing fee of Rs. 25/- each as was applicable to that category. However, it was construed that they were competing against Scheduled Tribe category. It being so, both the petitioners, Sh. Kewal Singh and Sh. Manoj Kumar, S/o Sh. Ghinu Ram, who figure at Sr. Nos. 1 and 3 of Select List, Annexure P-5 against the category of S.T./H.H.G. and had secured 64.50 and 63.33 marks, respectively, were left out and strangely enough private respondents No. 7, Sh. Surinder and 8, Sh. Manoj Kumar S/o Sh. Prem Singh who are at Sr. Nos. 6 and 7 of the Select List, Annexure P-5 against the category of H.H.G. general and were scoring lesser marks, that is, 62.33 and 60.67, respectively, were given appointment over and above the petitioners, who definitely were more meritorious, ostensibly for the reason that since they had paid processing fee of Rs. 100/- they were treated as general candidates. 3. On the above averments, the petitioners are before this Court seeking the following substantive reliefs:- “(a) That the selection of the respondent Nos. 7 and 8 as Constables be quashed and set aside. (b) That the respondents be directed to select the petitioners in place of respondents Nos. 7 and 8 being more meritorious than the respondents Nos. 3. On the above averments, the petitioners are before this Court seeking the following substantive reliefs:- “(a) That the selection of the respondent Nos. 7 and 8 as Constables be quashed and set aside. (b) That the respondents be directed to select the petitioners in place of respondents Nos. 7 and 8 being more meritorious than the respondents Nos. 7 and 8.” 4. In reply, respondents Nos. 1 to 6, have taken the following stand vide paras 10 and 11:- “10. That in reply to this para it is submitted that the petitioners who belongs to the ST (Home Guard) category and had applied for the posts of constables under this category. As stated supra no posts were reserved for ST (Home Guard). The Board considered the petitioners under ST/Home Guard. However, as no post was reserved for this category hence they have not been selected. As per proceedings of the recruitment Board, all the posts reserved for Home Guard have been filled in from the category for which the posts were meant. A copy of the proceedings is appended herewith and marked as Annexure R-1. Paras 8, 12 & 16 of the proceedings pertains to recruitment of Home Guard candidates. Notwithstanding the fact that the petitioners secured higher marks than the respondents yet they were not selected finally as no post was meant for ST/Home Guard. The respondent No. 7 though belongs to ST/Category but he applied for the posts meant for general Home Guard by affixing the IPO for Rs. 100/-. The respondent No. 8 belongs to unreserved (General Home Guard) category and thus he finally been selected against the said category. Thus the averments made in this para are not tenable. 11. That in reply to this para it is submitted that as per Column No. 7 of the recruitment form prescribed for the post of constable filled in during the physical efficiency test clearly shows that petitioners have applied under sub head Schedule Tribe Home Guard for which they had affixed IPO for Rs. 25/- only. As stated supra there was no post reserved for Schedule Tribe Home Guard to be filled in from District Chamba and thus petitioners could not be recruited. The petitioners knowing well that there was no post reserved for ST/Home Guard yet applied under this category. 25/- only. As stated supra there was no post reserved for Schedule Tribe Home Guard to be filled in from District Chamba and thus petitioners could not be recruited. The petitioners knowing well that there was no post reserved for ST/Home Guard yet applied under this category. Thus they are estopped to agitate the matter due to their own act and conduct.” 5. There is no reply on behalf of respondents Nos. 7 and 8. 6. I have heard the learned counsel for the petitioners, learned Additional Advocate General for respondents Nos. 1 to 6 and learned counsel for respondents Nos. 7 and 8 and gone through the record. 7. On a plain reading and consideration of the stand taken on behalf of respondents Nos. 1 to 6 State as above, it is manifest that the petitioners though being above in the merit vis-a-vis private respondents Nos. 7 and 8, yet have been excluded on the ground which can neither stand scrutiny against the factual matrix nor in law. Since, it is admitted that no post was reserved for ST Home Guard personnel there was no point for the petitioners, who cannot be said to be so naïve, to have applied against any such category. It was only on the basis of the representation in recruitment notice, Annexure P-1 as extracted hereinabove that they had affixed the beneficial processing fee of Rs. 25/- meant for ST candidates as compared to general candidates, which is in consonance with the Constitutional mandate granting special protection to the persons belonging to various deprived categories such as SC, ST, OBC etc. vis-a-vis general category candidates who were required to pay higher processing fee of Rs. 100/- 8. The legal proposition that even if a reserved category candidate performs better and attains higher merit, he has a vested legal right to be appointed/selected on the basis of his own performance, without taking into consideration the fact that he belongs to a particular reserved category. This dictum of law is squarely applicable to the facts of the case in hand. The resultant situation that emerges is that the action on the part of respondents Nos. 1 to 6 State in excluding the petitioners from selection to the post, albeit the fact that they had proved their merit for the same and instead appointing private respondents Nos. The resultant situation that emerges is that the action on the part of respondents Nos. 1 to 6 State in excluding the petitioners from selection to the post, albeit the fact that they had proved their merit for the same and instead appointing private respondents Nos. 7 and 8, who were lower in merit on the above ground, which has been found to be absolutely flimsy and thus not standing judicial scrutiny, cannot be sustained and is accordingly quashed and set aside, but without disturbing the appointments of private respondents Nos. 7 and 8, who cannot be ousted at this stage after having served for a period of about four years as the fault lies somewhere else and they cannot be held responsible for the same. 9. Accordingly, there shall be a direction to respondents Nos. 1 and 2 to offer appointment to the petitioners as police constables in the respondent department against existing vacancies, if any, latest by 31.10.2014 and in case no such vacancies are presently available, then against the first two available vacancies likely to occur in the department in the near future. In the peculiar facts and circumstances of the case and keeping in view the interests of justice, on appointment, the petitioners would rank senior to respondents Nos. 7 and 8. 10 The petition as also pending application(s), if any, stand disposed of in the above terms.