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Himachal Pradesh High Court · body

2019 DIGILAW 1908 (HP)

Ajay Kumar Kapoor v. State Of H P

2019-12-12

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, J. - By way of Original Application No.3025 of 2017, which now stands transferred to this Court after abolition of the Erstwhile H.P. Administrate Tribunal, petitioner has mainly prayed for the following relief:- " That the impugned order dated 11.94.2017 passed by the respondent No.5 vide Annexure A-5 to the extent of grant of pay scale of Rs.10300-34800+3200 Grade Pay to the applicant only after completion of eight years regular service may kindly be quashed and set-aside and the respondents may kindly be directed to consider the applicant as an appointee on the post of constable w.e.f. September, 2013, when the private respondents No.6 and 7 reflected in Annexure A-1, have been appointed as constable with pay scale of Rs. 10300-34800+3200 Grade Pay as granted to them as per the recruitment process initiated vide advertisement notice issued on 17.07.2012 alongwith seniority, arrears, increments and other consequential benefits as well as interest @ 12% per annum on the arrears from the date the same fell due till its realization and justice be done." 2. For having bird''s eye view, certain undisputed facts as emerge from the record are that the petitioner, who hails from Schedule Tribe community, appeared in the written examination conducted by the police Department for the appointment to the post of Constable. Petitioner secured 43 marks in the written test amongst 197 candidates and accordingly, he was invited for interview. However, fact remains that in the interview, petitioner was only awarded three marks out of 12, as such he could not make in the final merit list. 3. Being aggrieved and dissatisfied on account of nonselection, petitioner approached this Court by way of CWP No. 7978 of 2013 precisely on the ground that interview Board ought not have awarded him three marks out of 12 marks, especially when he had secured 43 marks in the written examination. This Court after having carefully perused the replies filed on behalf of the respective respondents, held that action of interview Board in awarding only three marks to the petitioner was actuated by mala-fides. This Court after having carefully perused the replies filed on behalf of the respective respondents, held that action of interview Board in awarding only three marks to the petitioner was actuated by mala-fides. Aforesaid judgment passed by this Court reveals that this Court having carefully examined the record of the result prepared by the interview Board, observed that had interview Board awarded 3.10 marks to the petitioner, he would have been selected and appointed, but non awarding of .10 per centum to the petitioner by the interview board has de-facilitated his selection or consequent appointment which deficiency of minimum marks for the reasons aforesaid is generated by malafides. 4. The learned Single Judge of this Court returned categoric finding that the factual scenario as encapsulated, compels this Court to infer that the petitioner has been denied his legitimate right to be selected by a predetermined mind of the interview board for the sole reason to oust him from the selection. While concluding mala-fides on behalf of the members of the interview board, learned Single Judge also took into consideration the law laid down by the Hon''ble Apex Court in Bishnu Biswas and others versus Union of India and others, (2014) 5 SCC 774 and observed that awarding of deficient marks in the viva voce to the petitioner despite his having obtained higher marks than the other candidates or aspirants has also singled him out for being awarded negligible marks in the viva voce, though other aspirants, who obtained lesser marks in the written test, were awarded higher marks in the viva voce as such, theirs constituting mala-fides as also lending intransparency to the viva voce conducted by the interview board. 5. It is also not in dispute that before issuance of positive directions, if any, by this Court while passing the judgment dated 16.12.2014, to offer appointment to the petitioner on account of aforesaid violation, statement came to be made on behalf of the department that the petitioner shall be considered for appointment or appointed to the post of Constable in the category of Schedule Tribe as and when a vacancy arises and as such, petition having been filed by the petitioner came to be disposed of with the direction to the respondents-State to consider the petitioner for being appointed to the post of Constable in the category of Scheduled Tribe as and when a vacancy arises. 6. 6. After passing of aforesaid judgment, respondent No.5 issued appointment letter dated 20.08.2015 (Annexure A-2) to the petitioner, appointing him as temporary constable in H.P. Police Department against the existing vacancy of 1st HPAP Bn. Junga, District Shimla, H.P., w.e.f. 20.8.2015 in the pay band of Rs.5910-20200+Grade Pay of Rs.1900/- plus other usual allowances as admissible under the rules in terms of judgment dated 16.12.2014 passed by this Court in CWP No.7978 of 2013. 7. Though, aforesaid offer of appointment made by the respondents was accepted by the petitioner, but he filed representation (Annexure A-3), dated 14.3.2017, addressed to the Superintendent of Police, Shimla, District Shimla, H.P., claiming therein that he ought to have been offered appointment as per recruitment notice dated 17.07.2012 (Annexure A-4). However, fact remains that aforesaid representation was turned down by the authority concerned vide order dated 11.4.2017 (Annexure A-5). In the aforesaid communication/order, respondent No.5 conveyed that since you have been appointed as Constable against the vacancy of District i.e. Home District, benefit of enhanced pay Band and Grade Pay i.e. Rs. 10300- 34800 Plus 3200 Grade Pay, which is otherwise payable to other selected candidates pursuant to the recruitment notice dated 17.7.2012, cannot be granted to you. Respondent No.5 vide aforesaid communication further clarified that as per the H.P. Govt. Notification No. Fin (PR)B(7)-64/2010, dated 17.6.2016, Constables appointed on or after 01.01.2015 will be entitled for the pay structure of Rs. 10300-34800+3200 GP on completion of eight years of regular service. In the aforesaid backdrop, petitioner herein approached Erstwhile H.P. Administrative Tribunal, seeking therein relief, as has been reproduced hereinabove, but as has been noticed hereinabove, petition initially filed before the Tribunal has landed up before this Court for adjudication on account of abolition of the Tribunal. 8. In reply to the present petition, facts as have been taken note hereinabove, have been not disputed by the respondents. The plea which has been taken to justify the claim of respondents is that since petitioner came to be appointed against the vacancy of District i.e. Home District, he can only be given enhanced pay Band and Grade Pay i.e. Rs.10300-34800+3200/- on completion of eight years of regular service in the department in view of the notification dated 17.6.2016, which has been otherwise taken note hereinabove. 9. I have heard learned counsel representing the parties and gone through the record carefully. 10. 9. I have heard learned counsel representing the parties and gone through the record carefully. 10. Precisely, the grouse of the petitioner is that since he was offered appointment in the year, 2015 pursuant to the direction issued by this Court vide judgment dated 16.12.2014 passed in CWP No.7978/2013, wherein this Court had categorically held that non selection of the petitioner is bad and actuated with mala-fides, respondents while offering him appointment letter (Annexure A-2) ought to have granted him benefits i.e. seniority as well as consequential benefits from the date it has been granted to the persons appointed pursuant to recruitment notice dated 17.7.2012. As has been taken note hereinabove, though this Court did not quash the selection process conducted by the respondents pursuant to notice dated 17.7.2012, but in so many words ruled/held action of the respondents in not offering appointment to the petitioner to be bad and actuated with mala-fides. If the judgment (Annexure A- 1) is read in its entirety, it clearly reveals that this Court was convinced and satisfied that interview board could not have awarded three marks to the petitioner, especially when other persons, who had actually secured less marks in the written examination were granted more than marks in the interview. In para Nos. 3 and 4 of the aforesaid judgment, this Court has not only directed the interview Board, rather has rendered categoric findings that legitimate right of the petitioner to be selected has been scuttled by the Board solely with a view to oust him from the selection. However, as has been taken note hereinabove, that before this Court could proceed to quash the entire selection process, it having taken note of undertaking given by the representative of the respondents-department that the petitioner would be given appointment for the post of constable in the category of Schedule Tribe as and when a vacancy arises purposely did not quash the appointments of other candidates. It is not in dispute that aforesaid judgment rendered by this Court has attained finality as at no point of time appeal, if any, ever came to be filed, laying therein challenge to aforesaid judgment. 11. It is not in dispute that aforesaid judgment rendered by this Court has attained finality as at no point of time appeal, if any, ever came to be filed, laying therein challenge to aforesaid judgment. 11. It is not in dispute that persons selected pursuant to recruitment notice dated 17.07.2012 (Annexure A-4) have been given benefits of enhanced pay Band and Grade Pay i.e. 10300- 34800 plus 3200 Grade Pay from the date of their initial appointment, whereas in the case of the petitioner, who had no fault though was given appointment on 20.08.2015 against the post of constable, but in the pay Band of 5910-20200+ 1900 GP plus other allowance, as admissible under the Rules. 12. Having noticed aforesaid factual aspects of the matter, there cannot be any dispute that in the whole process there is no fault, if any, on the part of the petitioner, who despite having secured 43 marks in the interview was granted three marks by the interview Board with an intention to oust him so as to facilitate the appointment of other candidates, who had admittedly secured less marks than the petitioner in the written examination. Findings recorded by the Court with regard to mala-fides and predetermined mind of the interviewing Board to oust the petitioner herein have already attained finality. It appears that this Court solely with a view to protect the selection/ appointment of other candidates,who did not have any role in awarding the marks as far as viva voce is concerned, proceeded not to quash the entire proceedings, rather having taken note of the statement made by authorized representatives of the respondent-Department disposed of the petition with the direction to the respondents to offer appointment to the petitioner in the category of Schedule Tribe as and when a vacancy is available. But definitely aforesaid direction issued by this Court cannot be construed/interpreted in the way as is being interpreted by the respondents. True, it is that vacancy against which the petitioner came to be appointed became available in the year, 2015, but this Court cannot loose sight of the fact that appointment offered to the petitioner herein is in pursuant to the recruitment notice dated 17.7.2012, meaning thereby the petitioner for all intents and purpose is to be treated like other candidates, who got selected pursuant to the aforesaid recruitment notice. Otherwise also, there is no material, worth the name, available on record suggestive of the fact that appointment order dated 20.08.2015 (Annexure A-2), whereby the petitioner was appointed as Constable was issued/given pursuant to some fresh process of recruitment initiated by the respondents, rather appointment letter itself suggests that same is in terms of the directions issued by this Court while passing judgment dated 16.12.2019 in CWP No.7978 of 2013. If the version put forth by the respondents is accepted that since petitioner has been appointed against the vacancy of District i.e. Home District and he is eligible for enhanced pay Band and Grade Pay i.e. Rs.10300-34800 Plus Rs.3200 Grade Pay on completion of eight years of regular service in the department, same would cause grave prejudice and injustice to the petitioner, who has already suffered for years together for no fault of him. 13. Had this Court having taken note of glaring mistake committed by the interviewing Board at the time of carrying out selection process in terms of recruitment notice dated 17.7.2012, proceeded either to quash the entire selection process or issued direction to offer appointment to the petitioner among other selection candidates in his category, petitioner would have definitely got the benefits as are now being enjoyed by other persons selected in terms of recruitment notice dated 17.7.2012. 14. Appointment of the petitioner got delayed on account of no fault of him, rather fault, if any, is of the department, as has been taken note hereinabove, and as such, petitioner cannot be allowed to suffer further on account of denial of seniority to him by the respondent-department. 15. Reliance is placed upon the judgment rendered by this Court in case, titled Hem Chand versus State of Himachal Pradesh and others,2014 3 HimLR 1962, wherein it has been held as under:- "3.Admittedly, the appointment of the petitioner was delayed for no fault of his and came to be appointed only in the year 2009, that too after the intervention of this Court. The result of delayed appointment of the petitioner is that he has been paid less salary and denied the seniority over a long period of time. It has been consistently opined that in case a candidate is wrongly denied appointment for no fault on his part, he cannot be denied appointment from due date and consequential seniority. The result of delayed appointment of the petitioner is that he has been paid less salary and denied the seniority over a long period of time. It has been consistently opined that in case a candidate is wrongly denied appointment for no fault on his part, he cannot be denied appointment from due date and consequential seniority. Reference in this regard can conveniently be made to Pilla sitaram Patrudu and others vs. Union of India and others, (1996) 8 SCC 637 , Sanjay Dhar vs. J&K Public Service Commission and another, (2000) 8 SCC 182 , Hawa Singh Sangwan vs. Union of India and others,1991 6 76 SLR 753 and Hawa Singh and others vs. The Haryana State Electricity Board.Moreover, (1996) 6 SLR 335 it is not the case of the respondents that the petitioner was not recommended to be appointed on 26.6.2004 but the only ground taken is that it was the Pradhan, Gram Panchayat Sawindhar, Tehsil Karsog, who delayed the appointment of the petitioner. This is the precise reason that the petitioner is entitled for the seniority from the date of offer of appoin tment, as held by the Division Bench of this Court in similar circumstances, in case titled as Chattar Singh vs. State of H.P. and others, CWP No. 188 of 2012-I:- "3. No doubt, the petitioner joined duty only on 13.5.2003. But in his favour admittedly there is an order by the Appointing Authority on 8.8.2002 to give appointment, as has been noted by the Tribunal in Annexure P-1, order. It is that order, which has been upheld by the Tribunal and the direction issued by the Tribunal is for implementing the said order. Therefore, for all purposes, the petitioner shall be deemed to be appointed on 8.8.2002, on the date admittedly the petitioner was directed to be appointed by the Sub Divisional Magistrate. However, taking note of the fact that the petitioner has joined duly on 13.5.2003 after the order was issued to him, the entitlement of the petitioner for actual monetary benefit shall be only from 13.5.2003. In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to be appointed in the post of Gramin Vidya Upasak on 8.8.2002 for all purposes; but from 8.8.2002 to 13.5.2003, the benefits shall only be notional and from 13.5.2003, the petitioner shall be entitled to all monetary benefits." 4. In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to be appointed in the post of Gramin Vidya Upasak on 8.8.2002 for all purposes; but from 8.8.2002 to 13.5.2003, the benefits shall only be notional and from 13.5.2003, the petitioner shall be entitled to all monetary benefits." 4. In view of the exposition of the law referred to above, the petitioner is entitled to be treated as having been appointed as a Part Time Water Carrier at Government Primary School Alyas, Gram Panchayat, Sawindhar, Karsog-II, District Mandi from 30.6.2004, pursuant to the recommendation of the Government of H.P., as per order dated 26.6.2004 for the purpose of seniority. However, the entitlement of the petitioner for actual monetary benefits shall be only from 9.6.2009. In order to avoid any ambiguity,it is made clear that the petitioner shall be deemed to be appointed as Part Time Water Carrier from 30.6.2004 for all purposes, but from 30.6.2004 to 9.6.2009, the benefits shall only be notional and w.e.f. 9.6.2009,the petitioner shall be entitled to all monetary benefits." 16. Reliance is also placed upon the judgment rendered by Division Bench of this Court in Shri Balak Ram versus State of Himachal Pradesh,2014 Supp LatestHLJ 231 (HP), wherein it has been held as under: 8. The Apex Court in a case titled as Sanjay Dhar versus J and K Public Service Commission and another, (2000) 8 SCC 182 , has dealt with the issue and held that when a candidate is deprived of appointment illegally, he is deemed to have been appointed right from the same date. It is apt to reproduce paras 14 to 16 of the judgment herein: "14. ............As the appellant participated in the process of selection protected by the interim orders of the High Court and was also successful having secured third position in the select list, he could not have been denied appointment. The appellant is, therefore, fully entitled to the relief of his appointment being calculated w.e.f. the same date from which the candidates finding their place in the order of appointments issued pursuant to the select list prepared by the J&K PSC for 1992-93 were appointed and deserves to be assigned notionally a place in seniority consistently with the order of merit assigned by the J&K PSC. 15. 15. We have already noticed the learned Single Judge having directed the appellant to be appointed on the post of Munsif in the event of his name finding place in the select list subject to the outcome of the writ petition which order was modified by the Division Bench in LPA staying the order of the learned Single Judge but at the same time directing one vacancy to be kept reserved. The High Court and the Government of J&K (Law Department) were not justified in bypassing the judicial order of the High Court and making appointments exhausting all available vacancies. The right of the appellant, if otherwise sustainable,cannot be allowed to be lost merely because of an appointment having been made wittingly or unwittingly in defiance of the judicial order of the High Court. 16. For the foregoing reasons the appeal is allowed. The judgment under appeal is set aside. It is directed that the appellant shall be deemed to have been appointed along with other appointees under the appointment order dated 6-3-1995 and assigned a place of seniority consistently with his placement in the order of the merit in the select list prepared by J&K PSC and later forwarded to the Law Department. During the course of hearing the learned senior counsel for the appellant made a statement at the Bar that the appellant was interested only in having his seniority reckoned notionally in terms of this order and was not claiming any monetary benefit by way of emoluments for the period for which he would have served in case he would have been appointed by order dated 6-3- 1995. We record that statement and direct that the appellant shall be entitled only to the benefit of notional seniority (and not monetary benefits) being given to him by implementing this order. The appeal is disposed of accordingly. The contesting respondents shall pay the appellant costs quantified at Rs. 5,000/-." 17. It is quite apparent from the aforesaid exposition of law laid down by this Court that seniority as well as consequential benefits to which otherwise person entitled cannot be denied to him/her on account of fault of department. The appeal is disposed of accordingly. The contesting respondents shall pay the appellant costs quantified at Rs. 5,000/-." 17. It is quite apparent from the aforesaid exposition of law laid down by this Court that seniority as well as consequential benefits to which otherwise person entitled cannot be denied to him/her on account of fault of department. In the present case, fault, if any, was not of the petitioner, rather it is quite apparent from the record that his selection got delayed on account of arbitrariness of the interview Board and as such, he is entitled to be treated at par with the candidates, who were selected pursuant to recruitment notice dated 17.7.2012. 18. There is no force in the argument of learned Additional Advocate General that in terms of notification dated 17.6.2016, issued by the Finance Department, Government of Himachal Pradesh, constable appointed on or after 01.01.2015 would only be entitled for the pay structure of Rs.10300-34800+3200 GP on completion of eight years of regular service because in the case at hand though the petitioner came to be appointed as Constable on 20.8.2015 vide Annexure A-2, but as has been observed hereinabove, his selection for all intents and purposes is deemed to be in terms of recruitment notice dated 17.07.2012 and as such, notification as referred above, cannot be made applicable in the case of the petitioner. 19. Consequently, in view of the above, the present petition is allowed and order dated 11.4.2017 ( Annexure A-5) is quashed and set-aside. Respondents are directed to grant all benefits to the petitioner including seniority, as has been granted to the other persons selected pursuant to recruitment dated 17.07.2012 in the category of Constable. However, petitioner would be entitled to actual monetary benefits from the date of his joining pursuant to Annexure A-2, but after fixation of his pay. Arrears in terms of instant judgment shall be positively paid by the department to the petitioner within a period of three months. Pending application(s), if any, also stands disposed of.