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2019 DIGILAW 1774 (HP)

SAHIL v. STATE OF HIMACHAL PRADESH

2019-11-22

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. 1. It is rather unfortunate that the petitioners have been driven to unwarranted and otherwise avoidable litigation only on account of sheer ignorance of respondents' knowledge of law. 2. Since common questions of law and facts are involved in these petitions as they relate to the recruitment of the constable, therefore, the same were taken up together for consideration and are being disposed of by a common judgment. CWP No. 3102 of 2019: 3. In CWP No. 3102 of 2019, the petitioner applied for the post of constable and was called for physical and other standards and physical efficiency test in June, 2019. After qualifying the same, he was called for written test held on 8.9.2019 and vide personality test-cum-interview call letter dated 16.10.2019, he was called for interview. However, the petitioner was not interviewed solely on the ground that on the date of filling up the application form, name of the petitioner was not registered with the Employment Exchange. CWP No. 3185 of 2019 4. The petitioner in CWP No. 3185 of 2019 also qualified the physical test, written test and was also interviewed. However, later on, he was disqualified only on the ground that his name was not entered in the Employment Exchange. CWP No. 3192 of 2019 5. Likewise in CWP No. 3192 of 2019, the petitioner claims to have got her name registered in the Employment Exchange Office at Shimla on 19.10.2015 and after qualifying the test called for the interview on 16.10.2019. The petitioner claims to have renewed employment exchange registration on 17.10.2019, yet the respondents on 25.10.2019 refused to interview her only on the ground that he has not got registered her name in the Employment Exchange. 6. It is more than two decades back that the Hon'ble Supreme Court in Excise Superintendent Malkapatnam, Krishna District A.P. vs. K.B.N. Visweshwara Rao and others, (1996) 6 SCC 216 , while interpreting the provisions of section 4 (1) of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, held that selections cannot be restricted only to the candidates sponsored by the Employment Exchange, rather names should also be called for by publication in newspaper having wide circulation and display on office notice boards or announcement on radio, television and employment news bulletins. Such procedure would subserve fair play and would be in consonance, rather complying the provisions of Articles 14 and 16 of the Constitution of India. 7. Here, it would be apposite to refer to Para-6 of the Judgment, which reads as under: "[6] Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates." 8. Similar reiteration of law can be found in a judgment of learned Division Bench of this Court in Kamal Thapa vs. State Bank of Patiala, 2013 (2) Shim. LC 864. 9. In Union of India and others vs. Pritilata Nanda, (2010) 11 SCC 674 , the Hon'ble Supreme Court has gone to the extent to hold that the recruitment procedure of sponsorship by Employment Exchange is not mandatory. 10. LC 864. 9. In Union of India and others vs. Pritilata Nanda, (2010) 11 SCC 674 , the Hon'ble Supreme Court has gone to the extent to hold that the recruitment procedure of sponsorship by Employment Exchange is not mandatory. 10. It is a common knowledge that the Police Department has battery of lawyers/prosecutors, therefore, we really fail to understand as to why despite the legal position having been settled long back, the respondents have not bothered to take legal opinion and if legal opinion was sought for then why the proposition of law settled by the larger Bench of the Hon'ble Supreme Court over-ruling the earlier judgment rendered in Union of India vs. N. Hargopal, 1987 (3) SCC 308 has gone completely unnoticed especially when the ratio of the judgment in K.B.N. Visweshwara Rao's case (supra) has consistently been followed by the Hon'ble Supreme Court itself. 11. In view of aforesaid discussion, all these petitions are allowed. The respondents are directed to interview the petitioners in CWP No. 3185 and 3192 of 2019 and as regards CWP No.3102 of 2019, since the petitioner has already been interviewed declare his result. Interim order dated 24.10.2019 whereby the respondents were directed not to declare the result without prior permission of this Court is vacated and the respondents are directed to declare the result of the petitioners. 12. All these petitions are allowed in the aforesaid terms, leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.