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Himachal Pradesh High Court · body

2015 DIGILAW 669 (HP)

Ashok Singh v. Ved Parkash

2015-06-04

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, Judge. Since common question of law and facts arises for determination, therefore, both the appeals are taken up together for disposal. 2. All the private parties are Ex-servicemen. The appellants are those Ex-servicemen, who were appointed as Panchayat Sahayaks and their appointments have been quashed and set aside by the learned writ Court and respondent No.2 has been directed to issue appointment letters to the private respondents in place of these appellants. 3. Facts of the case are that respondent No.2 issued an advertisement for filling up of nine posts of Panchayat Sahayaks out of which three posts were reserved for Ex-servicemen category for Nurpur Panchayat Samiti. Communication in this regard dated 10.08.2011 was also sent to respondent No.3 i.e. Sub Regional Employment Officer, Ex-servicemen Cell, Hamirpur. 4. In response to this communication, the private respondents appeared for the interview on 30.08.2012 along with requisite documents before the State Level Selection Committee. The respondent No.4 sent a communication to respondent No.3 on 07.09.2012 requesting him to issue appointment letters to the private respondents for the post of Panchayat Sahayak to be appointed on contract basis. The private respondents submitted their joining on 17.09.2012, however, they were not given appointment by respondent No.3. 5. This resulted in private respondents approaching this Court with a grievance that as per the letters dated 06.11.1985, 17.08.1987 and 31.03.1990 issued by the State of Himachal Pradesh, the suitability of Ex-servicemen is to be adjudged only by the Ex-servicemen Cell and thereafter it is incumbent upon the department to offer appointment letters to the candidates. 6. Respondents No.2 and 4 filed their joint reply wherein they supported the claim of the private respondents by stating that in terms of the letter dated 17 August, 1987, the private respondents were required to be accepted by the employer for appointment of the said post. 7. Respondent No.3 filed a separate reply wherein it was stated that the selection to the post of Panchayat Sahayak was to be regulated by the Himachal Pradesh Panchayati Raj (Appointment and Condition of Service of Panchayat Sahayaks) Rules, 2008 and not by the Ex-servicemen Cell. It was also stated that respondent No.4 was never informed about the three posts to be filled up from the category of Ex-servicemen. 8. It was also stated that respondent No.4 was never informed about the three posts to be filled up from the category of Ex-servicemen. 8. Appellants herein also filed a detailed reply wherein it was averred that the posts in question were to be filled up as per the statutory rules as amended from time to time and since they were duly qualified and had submitted their applications strictly as per the notification dated 10.08.2011 before the cut-off date and they were duly interviewed on 25.04.2012. Having qualified they were given appointment letters pursuant to which they have joined their duties on 26.09.2012, 20.09.2012 and 25.09.2012 respectively. 9. The learned writ Court allowed the writ petitions by holding that the appointments of the appellants were not in accordance with the rules readwith notifications (ibid) and, therefore, quashed their appointments. Aggrieved by the decision, the appellants have approached this Court by filing the present appeals. 10. The moot question required to be determined in these appeals is whether there is any conflict between the statutory rules and the instructions issued vide letters dated 06.11.1985, 17.08.1987 and 31.03.1990. 11. The State Government has laid down the procedure for notification of vacancies reserved for Ex-servicemen or a dependent or physically handicapped as per letter dated 08.03.1973 contained in Handbook on Personnel Matters, Vol.-1 (Second Edition) para 7.13, which reads as under:- “7.13.1 Ex-servicemen and dependents: The ex-servicemen (and eligible dependents) should get their names registered at the nearest Employment exchange. The Employment Exchange will dispatch duplicate registration cards to the Ex-servicemen cell established in the Directorate of Employment and Training, Himachal Pradesh, Shimla (now Directorate of Sainik Welfare, Hamirpur). There is a State Selection Committee which interviews the Ex-servicemen (including eligible dependents of Ex-servicemen killed or disabled for civil service in action) for various post and prepares a panel of eligible candidates. The Departments should send requisition in respect of reserved vacancies for Ex-servicemen to the Cell which will sponsor the names of Ex-servicemen for the reserved post. The names sponsored by the Cell are considered to have been selected for the reserved posts. The Departments have to issue appointment letters to the Ex-servicemen candidates sponsored by the Cell without any interview/ test.” 12. The names sponsored by the Cell are considered to have been selected for the reserved posts. The Departments have to issue appointment letters to the Ex-servicemen candidates sponsored by the Cell without any interview/ test.” 12. Similarly, para 18.4.1 contained in Handbook on Personnel Matters, Vol.-1 (Second Edition) lays down the procedure to be followed by ex-servicemen or their dependents for applying against reserved posts, which reads as under:- “(a) Ex-servicemen and their dependents should get their names registered at the nearest Employment Exchange. The exchange has to make an entry in the index card regarding the fact that the applicant is an Ex-serviceman or dependent of an Ex-serviceman as the case may be. The exchange will send duplicate registration card to the Ex-servicemen’s Cell in the Directorate of Employment, Govt. of H.P. After an interview by a State Selection Committee, panels of eligible candidates for different categories of posts/services are prepared. Govt. Departments/ Corporations etc. who have to fill a reserved vacancy send a requisition to the Ex-servicemen’s Cell simultaneously while sending requisitions to the Employment Exchanges, Public Service Commission in respect of vacancies not reserved for Ex-servicemen. The Ex-servicemen Cell sponsors names from the panel maintained by it in accordance with the requisition. The candidate so sponsored is to be appointed by the Department/ Corporation without any further interview/ test and such appointment is to be made within 15 days of the date of sponsorship by the Ex-servicemen’s Cell. (b) Vacancies filled through State Public Service Commission on All India basis are advertised through the Press too and the eligible Ex-servicemen or their dependents, as the case may be, should obtain prescribed application forms from the Public Service Commission and then submit the form duly completed to the Commission.” 13. It would be pertinent to take note of letter dated 17.08.1987 (Annexure R-1) governing the recruitment of Ex- servicemen by the Employers against Class-III and IV vacancies. It would be pertinent to take note of letter dated 17.08.1987 (Annexure R-1) governing the recruitment of Ex- servicemen by the Employers against Class-III and IV vacancies. Text of letter dated 17.8.1987 reads as under:- “I am directed to refer to Labour Commissioner-cum-Director of Employment, H.P. letter No. DET, EMP (XS-CELL) 881/61-IV, dated the 14th July, 1987, addressed to you and copy among others endorsed to this department on the above cited subject and to state that the existing procedure as laid down by the Government for the selection of Ex-servicemen for employment in civil services/posts under the State Government is in order and there is no ambiguity in it. All Class-III posts/services where the recruitment is to be made against reserved vacancies for Ex-servicemen are exempted from the purview of the Commission. Accordingly the ex-servicemen once interviewed by the State Level Selection Committee constituted by the Government for the purpose in the Labour and Employment Department are not required to be subjected to future interview/test by the Department to which they are nominated by the Special Ex-servicemen Cell functioning in the aforesaid department. The State Level Selection Committee after examining/ensuring the suitability of the Ex-servicemen for appointment to Class- III and IV posts on the basis of their record of Military service drawn up a panel of those suitable candidates. The panel so drawn is maintained by the special Ex-servicemen Cell which nominate one candidate for one reserved post from this panel to the departments as per their requisition and the department concerned has to accept the candidate for appointment and issue appointment letter to the candidate accordingly. This procedure is also covered under the provisions of Rule 4 (1) of the Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal Non- Technical and Technical Services) Rules, 1972 and 1985. Accordingly there is no scope for any ambiguity or doubt about the implementation of Government instructions.” 14. It is more than clear from the text of the letter dated 17.08.1987 that Ex-servicemen once interviewed by the State Level Selection Committee constituted by the Government for the purpose in the Labour and Employment Department are not required to be subjected to any future interview/test by the department to which they are nominated by the Special Ex-servicemen Cell functioning in the department. 15. 15. As per the notification dated 31.03.1990 appointment letters are to be issued within 15 days to the persons selected by the Ex-servicemen Cell for the posts reserved for Ex-servicemen. A categorical reference to earlier letter dated 06.11.1985 also finds mention in this letter and the relevant text reads as follows:- “I have been directed to say on the aforesaid subject that in accordance with the clearly given in letter No. GAD-E (C) 17- 1/84 dated 6.11.1985, of the General Administration Department of the Government, the appointment letters be issued within 15 days to the persons selected by the Ex-servicemen Cell for the posts reserved for the ex-servicemen. It has been brought to the notice of the Government that these orders are not being followed in some departments. Some Departments do not issue the appointment letters to the ex-servicemen till the time selection is made for the unreserved and other categories. This is totally wrong. All departments are requested to strictly follow the above orders. It is pertinent to clarify here that in the case of posts to be filled by direct recruitment, according to the orders of the Government, if necessary, after the approval of the Finance Department, as soon as the notification is sent to Public Service Commission or Employment Exchanges at that time itself, Ex-servicemen Cell, Hamirpur may be requested to sent the names of the selected candidates for the posts reserved for exservicemen. And as soon as the names are sent by the exservicemen, the selected candidates be issued appointment letter within 15 days. All offices be made aware of the aforesaid orders and they be strictly followed.” 16. This Court on 29.10.2014 passed the following orders:- “Keeping in view the dispute involved in these appeals, we deem it proper to array The Secretary Panchayati Raj and Rural Development, H.P. as party respondent in the writ petitions as well as in the present LPAs. Ordered accordingly. The said respondent shall figure as respondent No. 7 in the writ petitions and respondent No. 5 in the LPAs. The Registry to carry out necessary corrections in the cause title. Issue notice to the newly arrayed respondent. Mr. Romesh Verma, learned Additional Advocate General waives notice on behalf of the said respondent. Short reply be filed within four weeks. List on 16th December, 2014.” 17. The Registry to carry out necessary corrections in the cause title. Issue notice to the newly arrayed respondent. Mr. Romesh Verma, learned Additional Advocate General waives notice on behalf of the said respondent. Short reply be filed within four weeks. List on 16th December, 2014.” 17. In compliance to the aforesaid order, the Secretary (Panchayati Raj) has filed affidavit, relevant portion whereof reads thus:- “2. In this regard it is submitted that the procedure laid down by the State Government for notification of vacancies reserved for Ex-Servicemen as per letter dated 08.03.1973 contained in Hand Book on Personal Matters and letter dated 17.08.1987 governing the Recruitment of Ex- Servicemen by the employers against Class-III and IV vacancies, shall be applicable. 3. That in the present case recruitment/selection/ appointment to the post of Panchayat Sahayak was done under the provisions of H.P. Panchayati Raj (Appointment & Condition of Service of Panchayat Sahayak) Rules, 2008. But, the selection to the post reserved for Ex-Servicemen was to be done in accordance with procedure laid down by the State Government for notification of vacancies and governing the recruitment of Ex-Servicemen by employers against Class-III and IV vacancies reserved for them.” 18. Now, in case we revert back to the rules, it would be seen that Rule-15 lays down the procedure for removing difficulties and reads thus:- “If any difficulty arises in the interpretation of implementation of any of the provision of these rules, the matter may be referred to the State Government for clarification and guidance, who will be competent, to do anything to remove such difficulty by issuing an order not inconsistent with provisions of the Act.” 19. Indisputably, under para 15 of the rules ibid it is the State Government which has the final say in matters relating to the interpretation of the rule. 20. Now, the State Government has clarified the position with respect to the rules and it has been specifically stated on affidavit that the recruitment/selection/appointment would be done under the provisions of the Act and Rules. But, the selection insofar as the posts reserved for Ex-servicemen is concerned, the same shall be done in accordance with the procedure laid down by the State Government in the notifications issued from time to time as has already been referred to hereinabove. 21. But, the selection insofar as the posts reserved for Ex-servicemen is concerned, the same shall be done in accordance with the procedure laid down by the State Government in the notifications issued from time to time as has already been referred to hereinabove. 21. In this view of the matter, we have no difficulty in concluding that it was the private respondents, who had been appointed as per the procedure being followed by the State Government. The instructions issued vide notifications referred hereinabove would show that the same do not in any manner supplant the statutory rules and only supplements the same which is legally permissible. 22. Consequently, no fault can be found in the judgment rendered by the learned writ Court. Accordingly, the appeals are without merit and, therefore dismissed, leaving the parties to bear their own costs. The Registry is directed to place a copy of this judgment on the file of connected matter.