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Himachal Pradesh High Court · body

2015 DIGILAW 533 (HP)

Mangla Devi v. State of H. P.

2015-05-15

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The writ petitioner has challenged the appointment of respondent No.6 as a Part Time Water Carrier in the Government Primary School, Barota, Tehsil Indora, District Kangra, H.P. The respondents have proceeded to vindicate their act of appointing respondent No.6 to the post of Part Time Water Carrier, in the Government Primary School, Barota, Tehsil Indora, District Kangra, on the anvil of a rule existing in the apposite rules governing the appointment of Part Time Water Carriers in the school concerned nomenclatured as Rule 12, which stands extracted hereinafter:- “Rule 12 Compassionate Grounds Appointment. The Government will have the power to appoint any candidate as part time water carrier on compassionate grounds without following the slection process if the candidates are widow, woman deserted by her husband or otherwise destitute, handicapped persons and if the candidate falls below the poverty line as defined by the Rural Development Department from time to time.” 2. The rule extracted hereinabove empowers the Government to, while departing from the selection process appoint an aspirant/probable candidate as a Water Carrier in the school concerned in case it is found that the aspirant is a widow, woman deserted by her husband or otherwise destitute, handicapped person and if the candidate falls below the poverty line as defined by the Rural Development Department from time to time. The respondent No.6 is satiating the requirement of the apposite category whereunder he came to be selected and appointed. The respondent No.6 is satiating the requirement of the apposite category whereunder he came to be selected and appointed. Moreover, the appointment of respondent No. 6 is concerted to be foisted with validity on the score of hence, when the respondent No.6 in consonance thereto having applied for the post concerned earlier than the petitioner herein, besides his having come to be selected, appointed and his having joined earlier, to the application of the petitioner having come to be subjected to scrutiny, concomitantly an assiduous effort was made on the part of the respondents that the petitioner hence having not contemporaneously alongwith respondent No.6 applied for the post of Part Time Water Carrier in the Government Primary School, Barota, Tehsil Indora, District Kangra, H.P. at which stage the respondent No.6 was found fit and suitable within the parameters of any of the enshrined categories apposite to him, therefore, the challenge, if any, made by the petitioner to the selection and appointment of respondent No.6, is, shaky as well as legally unsound, especially, when hence there was no occasion to assess or consider the interse comparative merits of the petitioner and respondent No.6. 3. The legal sinew and tenability of Rule 12 empowering the State Government to depart from, besides make short shrift of the selection process has to be tested on the touchstone of the constitutional tenets of equality of opportunity in public employment, enshrined in Articles 14 and 16 of the Constitution of India. In case the mandate encapsulated in Rule 12 empowering the Government to benumb, derogate or depart from the selection process is found constitutionally unsound, then the mere factum of the selection committee concerned having been constrained by the petitioner not applying contemporaneously alongwith respondent No. 6 for the post concerned to assess their inter se comparative merits, leaving them with no option than to appoint the petitioner, would also not acquire any strength or vigour. The departure from the selection process enunciated in Rule 12 extracted above is perse, antithetical besides militative of the constitutional tenets of equality of opportunity in public employment. Even when the Government proceeds to appoint any person, aspirant or probable candidate to the post of part time water carrier in the school concerned, no short shrift besides departure from the constitutional tenets equality of opportunity in public employment, is, reverable. Even when the Government proceeds to appoint any person, aspirant or probable candidate to the post of part time water carrier in the school concerned, no short shrift besides departure from the constitutional tenets equality of opportunity in public employment, is, reverable. Especially when irreverence to the constitutional tenets of equality of opportunity in public employment is not only impermissible, rather is interdicted. The rule obviously with its omitting to mandate therein that when the Government proceeds to marshal the provisions of Rule 12, extracted hereinabove, empowering it to make short shrift of the selection process, while making selection and appointment of any aspirant to the post of part time water carrier in pursuance to an application initiated by him, though suitable, besides fulfilling the enshrined parameters, that no widely circulated advertisement preceding the exercise of the power at the instance of the Government is at all necessary, infringes the constitutional tenets of equality of opportunity in public employment. Only in the event of the widest publicity, emanating from the vacancies having been advertised, preceding the initiation of selection and appointment of any aspirant to the post of water carrier, for eliciting applications from all who satiate and fulfill the enshrined parameters for rendering their candidature to be considered suitable for employment, would the selection and consequent appointment of respondent No.6 stand validated. For reiteration, wide publicity qua the occurrence of vacancy is an indispensable sine qua non for sanctifying the selection and appointment of an aspirant to the post of part time water carrier in the school concerned. However, no material exists on record to portray that preceding the initiation of selection and consequent appointment of respondent No.6 to the post of part time water carrier the appropriate authority had advertised the vacancy. Omission in the above regard has to be deprecated and frowned upon by this Court. 4. With the widest publicity to the occurrence of a vacancy having been initiated by the Government prior, to its initiating the mechanism for selecting and appointing a suitable candidate to the post, would have facilitated the participation of the largest number of candidates, besides would have also facilitated the selection committee concerned to dispassionately assess the comparative merits and suitability of all the aspirants/probable candidates to the post concerned. However, with a postulation in the aforesaid rule qua wide publicity through advertisement qua the occurrence of a vacancy being dispensable when an appointment under Rule 12 is proposed to be made, has necessarily constrained or precluded the applicant/petitioner to apply for it, alongwith respondent No.6 besides has deterred a dispassionate evaluation of her suitability as well as her fitness for selection and appointment to the post concerned alongwith the respondent No.6. It appears that the power vested in Rule 12 and with the enjoined mandate therein of a constitutionally unsound tenet of departure from selection process which rather has an inbuilt or embodied indispensable precursor of a wide publicity through advertisement qua the occurrence of vacancy, has been resorted to by the Government to arbitrarily and in a partisan manner select and appoint the respondent No.6 to the post of part time water carrier in prejudice and in derogation to the compatible rights of other aspirants. Consequently, the respondents No. 1 to 5 having untenably departed from the selection process by omitting to give wide publicity qua occurrence of vacancy of part time water carrier through advertisement for eliciting the participation of the petitioner alongwith other suitable candidates, rather theirs on receiving only the singular application of respondent No.6 having assessed his candidature unilaterally and declared him fit and suitable within the apposite and enshrined parameters of the apt category germane to him for his selection and appointment, have infringed the mandate of Articles 14 and 16 of the Constitution of India enshrining the solemn tenet of equality of opportunity in public employment. 5. In aftermath, Rule 12 cannot escape the application to it of the constitutional tenets of equality of opportunity to the public employment, rather it while prescribing departure from the selection process embodying the widest publicity being given to the occurrence of vacancies through advertisement for eliciting participation of the optimum number of suitable candidates/aspirants enabling the selection committee to adjudge their comparative merits is to be construed to be antithetical to it, as such necessitates its while it being in infraction thereof, besides being ultra vires, to the aforesaid tenets, its being struck down. 6. 6. As a natural corollary, when Rule 12 is militative of the constitutional tenets of equality of opportunity in public employment, the mere fact of respondent No.6 having applied earlier than the petitioner for the post of part time water carrier and hence the respondent No.6 having also come to be selected/appointed and his having joined earlier than the petitioner’s application having come to be evaluated and scrutinized for assessing her suitability for selection/appointment, does not give leverage to the respondent No. 6 to render his selection to be sacrosanct especially when the constitutional mandate enshrined in Articles 14 and 16 of the Constitution of India contemplating equality of opportunity in public employment stood infracted, comprised in the factum of the petitioner not, having been awakened by the issuance of an advertisement qua the occurrence of a vacancy of a part time water carrier when the respondent No.6 applied for it. Consequently, when no wide publicity was given to the occurrence of a vacancy of part time water carrier, hampered her to apply for it, in subterfuge of the constitutional tenets of equality of opportunity in public employment, whose infraction has begotten the striking down of Rule 12 by this Court inasmuch as it makes a departure from the selection process hence gives omnibus latitude to the Government to, besides empowers it to arbitrarily choose a singular aspirant hence renders such a selection and appointment to be liable for interference and its being quashed and set-aside. 7. For reiteration, in the event of an advertisement having been issued by the respondents/State on the occurrence of a vacancy of a part time water carrier, she may have applied alongwith the respondent No.6 for the post aforesaid empowering the department concerned alongwith respondent No.6 to assess hers as well as the comparative merit of the respondent No.6 besides of other applicants whose applications may have been solicited through wide publicity. In sequel, the omissions aforesaid having throttled through a deprecable mechanism besides suffocated inasmuch, as ousted the petitioner from participating alongwith respondent No.6 besides other candidates in a fair, non-arbitrary and non discriminatory process of selection through assessment of their interse comparative merits, hence they cannot come to be countenanced. Consequently, the writ petition is allowed and the selection and appointment of respondent No. 6 is quashed and set-aside. Moreover, Rule 12, as extracted hereinabove, is struck down.