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Himachal Pradesh High Court · body

2017 DIGILAW 1237 (HP)

Mamta Goel v. Seema Bisht

2017-11-08

SANDEEP SHARMA, SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. 1. On 6.8.1997, one post of Computer Assistant was notified to be filled up by the Municipal Corporation, Shimla, for which names were requisitioned from the Regional Employment Exchange Officer, Shimla. On 19.8.1997, names of twenty eligible candidates were sponsored in accordance with the single chance rotation norms. On 23.8.1997 candidates were interviewed. Same day, the Selection Committee declared the result and Mamta Goel (appellant herein) who was found most meritorious and suitable, was issued letter of appointment. 2. It is this letter of appointment dated 23.8.1997 (Annexure A-1) which became subject matter of challenge by writ petitioner Seema Bisht (respondent No. 1 herein) by way of CWP(T) No. 4704 of 2008 [OA No. 2153 of 1997], inter alia, praying as under: “(i) The appointment of the respondent No. 4 may kindly be quashed which is illegal and contrary to the guidelines laid down by the Government for recruitment and also contrary to the provisions of section-4 of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. (ii) That the respondents No. 1 & 3 be directed to produce the whole record pertaining to the selection of the respondent No. 4, as Computer Assistant, in the Municipal Corporation Shimla. (iii) That the respondent No. 1 & 3 may kindly be directed to consider the name of the applicant for the selection of Computer Assistant after quashing the appointment of the respondent No. 4, on priority basis due to the instances enumerated above in the application.” 3. Vide impugned judgment dated 31.8.2010, learned Single Judge quashed such order of appointment. (iii) That the respondent No. 1 & 3 may kindly be directed to consider the name of the applicant for the selection of Computer Assistant after quashing the appointment of the respondent No. 4, on priority basis due to the instances enumerated above in the application.” 3. Vide impugned judgment dated 31.8.2010, learned Single Judge quashed such order of appointment. Primarily what weighed with the learned Single Judge was non advertisement of the post in view of law laid down by the Apex Court in Union of India & others vs. N. Hargopal & others, (1987) 3 SCC 308 ; Excise Superintendent Malkapatnam, Krishna District A.P. vs. K.B.N. Vishweshwara Rao & others, (1996) 6 SCC 216 ; Nagendra Chandra & others vs. State of Jharkhand & others, (2008) 1 SCC 798 ; National Fertilizers Limited & others vs. Somvir Singh, (2006) 5 SCC 493 ; State of Bihar vs. Upendra Narayan Singh & others, (2009) 5 SCC 65 ; and Union of India & others vs. Pritilata Nanda, (2010) 11 SCC 674 [ 2010 (7) Scale 269 ] as also the Division Bench of Allahabad High Court in Tungeshwar Nath vs. State of U.P. & others, 2008 (119) FLR 196. 4. The principles laid down by the Apex Court can be culled out as under: (a) It is not mandatory for the employer to appoint persons sponsored by the employment exchanges; (b) The field of choice can be enlarged and otherwise applications can be invited from the general public; (c) Factum of vacancies to be filled up must be given wide publicity by adopting all modes and means; (d) The selection and appointment of candidates only out of the candidates sponsored by the Employment Exchanges, wherever Rules otherwise provide for advertisement is violative of Articles 14 and 16 of the Constitution of India; and (e) Article 16 of the Constitution mandates every appointment to public post or office, wherever required, to be made by way of an open advertisement. 5. Applying the aforesaid principles, learned Single Judge held that it was obligatory on the part of the Municipal Corporation, Shimla, to have advertized the post in various newspapers and given wide publicity through other means and modes of communication. Also while choosing the successful candidate, undue haste was shown. 5. Applying the aforesaid principles, learned Single Judge held that it was obligatory on the part of the Municipal Corporation, Shimla, to have advertized the post in various newspapers and given wide publicity through other means and modes of communication. Also while choosing the successful candidate, undue haste was shown. By sending a Peon with a peon-book on 11.8.1997, names were got sponsored from the Employment Exchange which was so done on 19.8.1997 and the candidates were interviewed on 23.8.1997 and immediately thereafter, in fact same day, selected candidate was given appointment. 6. The judgment is assailed on the ground that: (i) appointment of the appellant is totally in consonance with the settled principles of law and more specifically the Recruitment and Promotion Rules for the Post of Computer Operator/Assistant (Non-Gazetted) Class-III in Municipal Corporation, Shimla (hereinafter referred to as the Rules); (ii) it was not the requirement of law that the post was to be advertized in newspapers; (iii) the decisions rendered by the Apex Court, so relied upon by the learned Single Judge pertain to the period subsequent to the appointment of the appellant. It was neither the practice nor requirement of law that the post was required to be advertized; and (iv) findings with regard to undue haste are factually incorrect and legally unsustainable. 7. On the other hand Mr. Shashi Shirshoo, learned counsel for the respondent has argued the matter making the following submissions: (i) That the judgment rendered by the learned Single Judge, is in the line of the decisions rendered by the Hon’ble Supreme Court, warranting no interference; (ii) In any event, the method of selection adopted by the respondent- Corporation was illegal inasmuch as (a) no names were called for from all the employment exchanges within the District as per manual “Hand Book on Personnel Matters, Vol-I (Second Edition), page 176”; (b) no attendance sheet was maintained regarding presence of all the 20 candidates called for the interview for the post in question; (c) in any event, appellant herein was ineligible to have applied for the post in question for the reason that in the year 1992, when she got herself registered with the employment exchange, she had not acquired the diploma in computer from a recognized institution, a condition essential for the post of Computer Assistant. Even though, post was requisitioned in August, 1997, the date of eligibility is to be reckoned from the date of registration and not thereafter; and (iii) Simply because appellant herein has worked for more than 20 years, she cannot claim any equity, more so, in the light of the judgment rendered by the Apex Court as reported in Binod Kumar Gupta & others vs. Ram Ashray Mahoto & others, (2005) 4 SCC 209 . 8. At the threshold we may only observe that since 23.8.1997, appellant has been successfully discharging her duties as a Computer Assistant with the Municipal Corporation, Shimla. There is nothing on record indicating lack of competence or dereliction of duty on her part. Soon she is to retire. 9. On 4.7.2012 this Court, after perusing the record observed as under: “The Employment Officer, Shimla is present and he has produced the record. It is seen that the employment exchange had forwarded twenty names to the Municipal Corporation, Shimla pursuant to their notification to the requisition on 19.8.1997. The appellant (respondent No. 4) is at serial No. 6 and she had registered with the employment exchange on 14.12.1992, whereas the writ petitioner got registered only on 14.3.1995. It is seen that twenty names forwarded by the employment exchange is only as per the seniority in the employment exchange and none among twenty is junior to the writ petitioner, in terms of the date of registration. It is also pointed out by the employment officer that as per Government instruction dated 16th May, 1994, twenty names against one vacancy are to be forwarded, for a district level vacancy. Post for further orders on 6.7.2012.” Noticeably, appellant was registered prior in point of time. 10. Rules specifically prescribe age limit for direct recruitment to be reckoned on the first day of the year in which the post is advertized for inviting applications or notified by the Employment Exchanges or as the case may be. Now in the instant case, post was notified sometime in the year 1997. 11. It is not in dispute that the post was not advertized in the newspaper. But then it is not the requirement of the Rule that it ought to have been so done. In fact, from Rule 6 it is apparent that post could be notified by the Employment Exchanges and this is precisely what has been done in the instant case. But then it is not the requirement of the Rule that it ought to have been so done. In fact, from Rule 6 it is apparent that post could be notified by the Employment Exchanges and this is precisely what has been done in the instant case. It is under these circumstances, we are of the considered view that the ratio of law laid down by the Apex Court in the decisions referred to by the learned Single Judge (supra), are in-applicable to the attending facts and circumstances. In fact, challenge to the appointment was not on this ground. It was only on account of ineligibility of the appellant. The grievance of the writ petitioner primarily rested on the fact that the Employment Exchange failed to sponsor her name despite the fact that on the date of registration she was fulfilling the criteria which the appellant was not possessing. 12. To contend that eligibility for the post has to be reckoned as on the date of registration with the Employment Exchange and not the date on which the requisition was sent would not be legally correct. We may take note of instructions dated 17.1.1977 (Annexure PC) that of the Government of Himachal Pradesh to the effect that all employing agencies were obliged to make recruitment only through Employment Exchanges. Other sources were to be tapped only if the Exchanges failed to sponsor suitable candidates. These instructions came to be reiterated on 1.8.1983 (Annexure PD). It is only in the year 2000, vide office memorandum dated 9.3.2000 (Annexure PE) the Government clarified that names for filling up the vacancies were to be invited not only from the Employment Exchanges but also directly by way of publication. As per the then prevalent Rules/Instructions all employing agencies in Himachal Pradesh were obliged to make appointment of only such of those candidates whose names were sponsored by the Employment Exchanges. 13. In the instant case, appellant as on the date of such requisition fulfilled the eligibility criteria. She was a graduate from a recognized university. The desirable qualification of having a Computer Diploma from an institution recognized by the State Government was also there, which she clarified to have acquired as on the date of the requisition [Dr. 13. In the instant case, appellant as on the date of such requisition fulfilled the eligibility criteria. She was a graduate from a recognized university. The desirable qualification of having a Computer Diploma from an institution recognized by the State Government was also there, which she clarified to have acquired as on the date of the requisition [Dr. M.V.Nair vs. Union of India & others, (1993) 2 SCC 429 and Bhupinderpal Singh & others vs. State of Punjab & others, (2000) 5 SCC 262 ]. 14. In fact, the principles of law laid down by the Apex Court in N. Hargopal & others, (supra) to the effect that recruitment through Employment Exchanges advances rather than restricts the rights guaranteed under Articles 14 and 16 of the Constitution stands reiterated by the Apex Court in Nihal Singh & others vs. State of Punjab & others, (2013) 14 SCC 65. 15. Similar view stands taken by the Apex Court in K. Gunavathi vs. V. Sangeeth Kumar & others, (2014) 11 SCC 491 . 16. It is true that the “Hand Book on Personnel Matters, Vol-I (Second Edition)” provides that 20 names from all the Employment Exchanges within the district ought to be sponsored. As per the manual only nine names could have been sponsored from the Regional Employment Shimla and remaining eleven names should have been sponsored by seven Sub Employment Exchanges within the District. Without going into the issue of applicability of these instructions to the post of a statutory body and as to whether the post in question is really a district level post to which sponsorship also was required to be from the Sub Employment Exchanges, we are of the considered view that the challenge even on this ground pales into insignificance, in view of the fact that out of the 20 candidates sponsored by the Regional Employment Exchange, Shimla, name of the appellant was at Sr. No. 6. Since nine names could have been sponsored by the said Employment Exchange, in view of the fact that she fell within the zone of consideration of such nine names, it cannot be said that in any event her name could not have been sponsored. 17. We now deal with the allegation of malafides and undue haste exhibited, if any, by the Corporation in favour of the present appellant. We notice allegations of malice to be absolutely vague and unspecific. 17. We now deal with the allegation of malafides and undue haste exhibited, if any, by the Corporation in favour of the present appellant. We notice allegations of malice to be absolutely vague and unspecific. It also did not find favour with the learned Single Judge. It is not that the appellant is related to any one of the members of the Selection Committee. It is also not that appellant was not meritorious or of average caliber and competence. It is also not that the appellant was not registered with the Employment Exchange. It is also not that name of the appellant was not sponsored by the said Employment Exchange. It is not that the name of the appellant was surreptitiously included in the list of the candidates to be interviewed. The process of filling up the post was initiated only with the State Government having sanctioned the post in question. It is not that overnight applications were invited and order of appointment issued. As already observed, name of the appellant was registered much prior to the registration of the name of the writ petitioner. It took more than a fortnight for the process to be completed. Mere exhibition of efficiency cannot be a ground sufficient enough, raising presumption of malafides or undue haste. It has come on record that none of the other participating candidates challenged the selection. The reason for petitioners challenge is quite apparent. On contract basis, she was discharging duties of the said post and wanted to be absorbed dehors the Rules, ignoring seniority of other candidates. 18. While relying on the following observation made by the Apex Court in Binod Kumar Gupta (supra), learned counsel contends that the appellant cannot claim equity solely for the reason that she had been working on the post in question for the last twenty years: “13. … … If we allow the appellants to continue in service merely because they have been working in the posts for the last 15 years we would be guilty of condoning a gross irregularity in their initial appointment. The High Court has been more than generous in allowing the appellants to participate in any fresh selection procedure as may be held and in granting a relaxation of the age limit.” 19. The High Court has been more than generous in allowing the appellants to participate in any fresh selection procedure as may be held and in granting a relaxation of the age limit.” 19. We are afraid that the principle enunciated is inapplicable to the attending facts, for (i) appointment of the appellant cannot be said to be dehors the Rules. She was fully eligible and the process of selection cannot be said to be vitiated at all, be it for whatever reason; (ii) Even subsequently the Apex Court in National Thermal Power Corporation, Kahalagaon & others vs. Nakul Das & others, (2014) 9 SCC 385 has observed as under: “10. It is the submission of the learned counsel appearing for NTPC that having regard to the facts of this case, namely where requirement is confined to class/category of persons (land oustees in the present case), it would not be necessary to bring out advertisements in newspapers and recruitment through the employment exchange and local circulation of notice would be consistent with the principles of Articles 14 and 16 of the Constitution of India. It was argued that the land oustees reside in the village and sub-divisional towns and local circulation of notice in addition to the requisition from the employment exchange was appropriate. Distinction was sought to be drawn between direct recruitment opon to public and recruitment confined to a particular class/category of persons. It was submitted that in the latter category, this Court has held in Nihal Singh vs. State of Punjab, (2013) 14 SCC 64, that such a procedure making recruitment through the employment exchanges is consistent with the requirement of Articles 14 and 16 of the Constitution, following the judgment in Union of India vs. N. Hargopal, (1987) 3 SCC 308 . The learned counsel also relied on the judgment in Arun Tewari vs. Zila Mansavi Shikshak Sangh, (1998) 2 SCC 332 where the earlier judgments in N. Hargopal (supra) and K.B.N. Visweshwara Rao, (1996) 6 SCC 216 were duly considered.” … … “16. The position which emerges from the aforesaid narration of events is this: the persons who were selected were admittedly eligible to be considered as they were also land oustees. No doubt, the posts were not advertized by publication in the newspapers. Fact remains that only two persons, namely Respondents 1 and 2 made a grievance in this behalf. The position which emerges from the aforesaid narration of events is this: the persons who were selected were admittedly eligible to be considered as they were also land oustees. No doubt, the posts were not advertized by publication in the newspapers. Fact remains that only two persons, namely Respondents 1 and 2 made a grievance in this behalf. These two persons have also been considered for the posts under the orders of this Court. However, they have failed in the selection. Others who were selected have already joined the posts. In a matter like this, no useful purpose would be served in carrying out the directions of the High Court to have fresh selection process after issuing advertisements in the newspapers. We may record at this stage that about 70 other persons have also filed IAs supporting the stand of Respondents 1 and 2. However, it is of significance to mention that all these persons had duly participated in the selection process but could not make their mark and failed to get selected. Therefore, these persons have no right to raise any grievance about non-publication of the advertisement in the newspapers.” 20. For all the aforesaid reasons, we are of the considered view that the findings returned by the learned Single Judge cannot be said to be in line with the settled principles of law. The material so placed by the Corporation obliging them to call names to fill up the post only from the candidates sponsored from the Employment Exchanges was not considered at all. Findings of undue haste are legally unsustainable and not borne out from the record. 21. As such, for all the aforesaid reasons, we allow the present appeal and quash and set aside the impugned judgment dated 31.8.2010, passed in CWP(T) No. 4704 of 2008, titled as Smt. Seema Bisht vs. Municipal Corporation & others, and dismiss the writ petition filed by the private respondent. Pending applications, if any also stand disposed of accordingly.