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Himachal Pradesh High Court · body

2014 DIGILAW 1844 (HP)

Rajinder Singh v. State of H. P.

2014-12-09

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. 1. 25 posts of unskilled workers on contract basis in Resin and Turpentine Factory, Nahan were advertised in newspapers, i.e. The Tribune and Amar Ujala on 2.6.2012. Petitioners also participated in the selection process. Petitioners participated in 25 KMs walk test and physical test on 21.82012 and 22.8.2012. Call letters were issued to the petitioners and similarly situate persons on 21.7.2012 to appear in the interview/viva voce for the post of unskilled workers on 16.10.2012 and 17.10.2012 in R&T Factory, Nahan. However, fact of the matter is that respondent-corporation vide letter dated 30.8.2014 has cancelled the selection process initiated on the basis of advertisement dated 2.6.2012. The Model Code of Conduct was imposed on 30.10.2012. Respondent-corporation requested the Principal Secretary (Forests) to the Government of Himachal Pradesh to clarify whether the interview could be conducted on the scheduled date or not. The matter remained under consideration. The Principal Secretary (Finance) to the Government of Himachal Pradesh asked the respondent-corporation to internally locate the surplus staff. The text of letter dated 17.6.2014 reads as under: "I am directed to refer to your office letter No. HPSFDC/Estt-3618 dated 19th May 2014 on the subject cited above and to say that the above matter was referred to the Finance Department for their concurrence and the Finance Department has opined as under: "Examined. Finance Department regrets its inability to concur in the Department's proposal for filling up of vacant posts in R&T factory Nahan and Bilaspur. However, the Department may consider locating surplus staff from Forest Corporation to do the job." 2. A meeting of Board of Directors of the respondent-corporation was held on 11.7.2014. The Board of Directors directed that the requirement be got assessed by the administrative department first and then the matter be referred to the Service Committee. The General Manager of R&T Factory was informed on 26.7.2014 that no action with regard to filling up of unskilled workers on contract basis be taken up and fresh process will be started as soon as the instructions are received from A.D. The Managing Director sent a communication to the Principal Secretary (Forests) to the Government of Himachal Pradesh on 1.8.2014. Letter dated 1.8.2014 reads as under: "Kindly refer to your office letter No. FFE-A(B)15-02/2011-Part dated 17.6.2014 on the subject cited above. 2. Letter dated 1.8.2014 reads as under: "Kindly refer to your office letter No. FFE-A(B)15-02/2011-Part dated 17.6.2014 on the subject cited above. 2. In this connection, it is submitted that the matter was again placed before the Board of Directors of the corporation in its meeting held on 11.7.2014 vide memo No. 16/183 (Copy enclosed as Annexure-A) and the Board of Directors have decided as under. "The Board directed that the need be assessed by the Administrative Department first and then matter be referred to the Service Committee." 3. Since 63 vacant posts of unskilled workers in R&T Factories, Nahan and Bilaspur are urgently required to be filled up as they are directly linked with production, therefore, necessary approval to fill up at least 25 posts of unskilled workers in R&T Factory, Nahan and 19 posts in R&T Factory, Bilaspur under first phase as already requested vide this office letter No. HPSFDC/Estt./3618 dated 19.5.2014 may kindly be accorded at the earliest convenience so that the matter may then be placed before the Service Committee and Board of Directors for approval." 3. The Managing Director informed the General Managers of R&T Factory, Nahan and Bilaspur not to fill up the posts of unskilled workers on contract basis on 30.8.2014. 4. The process was initiated on the basis of advertisement dated 2.6.2012. Petitioners have participated in the selection process. They have undertaken 25 KMs walk and endurance test. In fact, they were also issued interview letters on 21.7.2012. The process once commenced could not be stopped merely after coming into force of Model Code of Conduct on 30.10.2012. The respondent-corporation could only defer the issuance of appointment letters, but could not keep the entire selection process at abeyance. The Finance Department has regretted its inability to concur in the department's proposal for filling up of vacant posts in R&T Factory Nahan and Bilaspur. No cogent reasons have been assigned for not giving consent for filling up the posts. Since the process had commenced, the posts of unskilled workers were required to be filled up on contract basis. The Finance Department has regretted its inability to concur in the department's proposal for filling up of vacant posts in R&T Factory Nahan and Bilaspur. No cogent reasons have been assigned for not giving consent for filling up the posts. Since the process had commenced, the posts of unskilled workers were required to be filled up on contract basis. The Managing Director of the respondent-corporation has informed the Principal Secretary (Forests) vide letter dated 1.8.2014 that 63 posts of unskilled workers in R&T Factories, Nahan and Bilaspur were urgently required to be filled up as these were directly linked with the production and he had sought approval to fill up at least 25 posts of unskilled workers in R&T Factory, Nahan and 19 posts in R&T Factory, Bilaspur under first phase. It is amply proved on the basis of communications placed on record that at least 25 posts of unskilled workers in R&T Factory, Nahan and 19 posts in R&T Factory, Bilaspur were urgently required to be filled up on contract basis in order to maintain production in R&T Factories, Nahan and Bilaspur. In fact the requirement was for 63 posts. 5. It is true that selection process could be cancelled, but there has to be cogent and convincing reasons for doing the same. The respondent-corporation firstly deferred the selection process only on the ground that Model Code of Conduct has come into force as on 30.10.2012 and thereafter has waited for two long years to get the permission. 6. Their Lordships of the Hon'ble Supreme Court in Shankarsan Dash Vs. Union of India, (1991) 3 SCC 47 have held that unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in any arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. Their Lordships have held as under: "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Their Lordships have held as under: "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in The State of Haryana Vs. Subash Chander Marwaha and Others, (1974) 3 SCC 220 , Miss Neelima Shangla, Ph. D. Candidate Vs. State of Haryana and Others, AIR 1987 SC 169 , or Jatinder Kumar and Others Vs. State of Punjab and Others, AIR 1984 SC 1850 ." 7. Their Lordships of the Hon'ble Supreme Court in A.P. Aggarwal Vs. Govt. of N.C.T. of Delhi and Another, AIR 2000 SC 205 have held that State action, in order to survive, must not be susceptible to the vice of arbitrariness. This is the crux of Article 14 and basic to the rule of law, the system which governs this country. Their Lordships have held as under: "12. It is well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. (vide Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, AIR 1991 SC 537 ." 8. Their Lordships of the Hon'ble Supreme Court in Food Corporation of India and Others Vs. (vide Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, AIR 1991 SC 537 ." 8. Their Lordships of the Hon'ble Supreme Court in Food Corporation of India and Others Vs. Bhanu Lodh and Others, AIR 2005 SC 2775 have held that the decision not to fill up the vacancies has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution of India. Their Lordships have held as under: "14. Merely because vacancies are notified, the State is not obliged to fill up all the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies, has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. Again, if the vacancies are proposed to be filled, then the State is obliged to fill them in accordance with merit from the list of the selected candidates. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review. (See in this connection Govt. of Orissa v. Haraprasad Das and State of Orissa v. Bhikari Charon Khuntia.)" 9. The Division Bench of Kerala High Court in K.M. Babu Vs. Election Commission of India and Another, AIR 2006 Ker 226 has held as under: "3. There is also force in the submission of the petitioner that pay revision granted as per the Pay Commission report is not a financial grant and, therefore, implementation of the Pay Commission report as announced in the budget speech on 10.2.2006 will not amount to a financial grant coming under paragraph VII, clause (vi)(a) of the Model Code of Conduct. Salary revision to be given in implementation of the pay commission report are expected by the Government employees for long time and it cannot be stated that implementation of the Pay Commission report and pay revision is a financial grant so as to offend the Model Code of Conduct. Above all, it is not the ruling party alone, but opposition also wanted immediate implementation of the Pay Commission report. Above all, it is not the ruling party alone, but opposition also wanted immediate implementation of the Pay Commission report. In this connection, the learned Advocate General produced before us a copy of the resolution unanimously adopted by the Kerala Legislative Assembly on 15.3.2006. The above resolution is quoted below. "This Legislative Assembly request to the Central Election Commission to grant permission to implement immediately the recommendations of Pay Revision Commission in the circumstance that, it has been declared in the Budget Speech of the Finance Minister in the Legislative Assembly on 10.2.2006 in respect of the pay revision, which was to be given on 1.3.2002 in Kerala where the principle of implementation of pay revision once in every 5 years is accepted, and the required amount is allocated in 2006-2007 Budget. The Cabinet meeting held on 1st March, 2006 accepted the recommendations of the Pay Revision Commission in principle and deferred it for the consideration of the Special Cabinet meeting of 2nd March. This Legislative Assembly unanimously request to the Election Commission to grant approval for the decision of the Government that, the recommendations of the Pay Revision Commission submitted on 22.2.2006 to the Government alone need be implemented, in the circumstance that the declaration of election has been issued." This shows that all the parties (whether ruling or opposition) including independent MLAs are in favour of implementation of the Pay Commission report itself. Therefore, it cannot be stated, on the facts of this case that implementation of the same was intended for influencing the voters in favour of the party in power. 4. In the above circumstances, we are of the view that the restriction imposed in implementation of the Pay Commission report by the Election Commission on the basis of Model Code of Conduct will not stand. There is no necessity for the employees to wait till the elections are over to receive the pay revision benefits merely because an election came in between and direction to the contrary by the Election Commission are set aside. Both the writ petitions are allowed." 10. Accordingly, the writ petition is allowed. Letter dated 1.8.2014 is quashed and set aside. Respondents are directed to continue and conclude the selection process commenced on the basis of advertisement dated 6.2.2012 within a period of eight weeks from today. Pending applications, if any, also stands disposed of. Both the writ petitions are allowed." 10. Accordingly, the writ petition is allowed. Letter dated 1.8.2014 is quashed and set aside. Respondents are directed to continue and conclude the selection process commenced on the basis of advertisement dated 6.2.2012 within a period of eight weeks from today. Pending applications, if any, also stands disposed of. There shall, however, be no order as to costs.