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2020 DIGILAW 797 (HP)

Anand Swarup v. State of Himachal Pradesh

2020-11-02

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner has prayed, for the following reliefs:- 7. "In view of submissions made hereto before, it is therefore respectfully prayed that appropriate order or directions may kindly be issued for the following reliefs:- (i) Impugned selection of private respondent vide Annexure A-7 and her appointment as such to the post of Drawing Master (OBC) may kindly be quashed and set aside. (ii) For directions to the respondents to consider the applicant for selection to the said post of Drawing Master (OBC) and appoint him as such within time bound schedule alongwith all consequential benefits. (iii) For directing the respondents to produce the records of the case. (iv) Any other order which this Hon'ble Court deems just and proper in the facts and circumstances of the case, not limiting to the reliefs prayed hereinabove, may also be granted in favour of the applicant." 2. The case of the petitioner is that he is Graduate in Arts Stream and a holder of two years' Diploma Course in Art and Craft. He did the Diploma Course from Shiwalik VTC, Chowki Maniyar, Bangana, District Una, H.P., and certificate to this effect was issued in his favour by the State Council for Vocational Training, on 29.08.2007. He also attended Combined Annual Training Course of NCC from 17.03.1997 to 28.03.1997 and he further holds Certificate "A" Examination in NCC. 3. Respondent-Department of Elementary Education commenced process for filing up the vacancies for the posts of C&V (Language Teachers and Drawing Masters) in the month of July 2017. The petitioner being eligible, was also considered for appointment against said post. Result of the process undertaken for appointment of Drawing Masters, which was obtained by him, under the Right to Information Act, demonstrated that despite the fact that he had passed the concerned Diploma in the year, 2007, as was by the private respondent, yet appointment stood offered to the private respondent, ignoring the fact that as the petitioner was elder in age to the private respondent, therefore, he should have been offered appointment, in terms of established practice that when two candidates had passed the course in the same year, person elder in age was to be considered for selection. It is on these bases that the appointment of the private respondent has been assailed by the petitioner. It is on these bases that the appointment of the private respondent has been assailed by the petitioner. It is further the contention of the petitioner that appointment of the private respondent is bad, also for the reason that the selected candidate did not possess any experience. 4. Reply to the petition has been filed by respondents No.1 and 2, as also by the private respondent. The stand of respondents No.1 and 2 is that in terms of information received from the Deputy Director of Elementary Education, Shimla, in the case of batch-wise appointment, date of issuance of original certificate of Diploma Course is the criteria for reckoning the batch of the candidate. According to them, the petitioner had passed two years' Diploma Course of Art and Craft from State Council for Vocational Training, in the year, 2007, and the date of issuance of original certificate was 29.08.2007. Selected candidate, i.e., private respondent had also passed the two years' Diploma Course of Art and Craft from State Council for Vocational Training, in the Session, 2005-2007, however, the date of issuance of original certificate in her favour was 28th August, 2007. On these bases, said respondents submit that appointment/ selection of private respondent as Drawing Master on batch-wise basis was rightly made by the Appointing Authority as the date of issuance of original certificate of the private respondent preceded the date on which the said certificate was issued in favour of the petitioner. Rejoinder to the said reply stands filed by the petitioner, wherein, it stands mentioned that justification being given by respondents No.1 and 2, is erroneous, because as both the candidates had obtained the Diploma in the same year, then in terms of the established practice, it was the age of the candidate concerned, which had to be taken into consideration and petitioner being elder in age, ought to have been selected. 5. 5. In the reply filed to the petition by the private respondent, the stand, inter alia, taken is that even if overall merit of the parties, was taken into consideration, then also the private respondent was more meritorious than the petitioner and though the petitioner happened to be elder in age, as compared to the private respondent, but on merit, in terms of the marks secured by the private respondent in various examinations passed by her, she was more meritorious than the petitioner, therefore, she was rightly offered appointment over and above the petitioner. 6. In terms of order passed by this Court, dated 28.08.2020, an affidavit has also been filed by Director of Elementary Education, Himachal Pradesh, dated 7th September, 2020, alongwith which the criteria which was adopted by the Authorities concerned, while assessing the regular merit of the candidates, stands appended alongwith comparison of merit of the petitioner as well as the private respondent. 7. In the course of his arguments, learned Additional Advocate General has relied upon the judgment of the Hon'ble Full Bench of this Court in LPA No.143 of 2013, tilted as State of Himachal Pradesh and others Versus Harbans Lal and others, decided on September 21, 2013, in justifying the act of respondents No.1 and 2. 8. I have heard learned counsel for the parties and have also gone through the pleadings as well documents appended therewith. 9. In my considered view, there is a strange irony in this case, wherein, the grounds on which the writ petition was filed by the petitioner, are as erroneous as is the stand taken by the State, in justifying its act of offering appointment to the private respondent over and above the petitioner. 10. This observation is being made by the Court for the following reasons. It is not in dispute that the petitioner as well as the private respondent, joined the Diploma Course in Art and Craft, which was of two years' duration in the year, 2005. It is further not in dispute that both the Institutions in which the petitioner as well as private respondent, respectively, gained admission in the Diploma Course, were affiliated to State Council for Vocational Training, Himachal Pradesh. It is further not in dispute that both the Institutions in which the petitioner as well as private respondent, respectively, gained admission in the Diploma Course, were affiliated to State Council for Vocational Training, Himachal Pradesh. It is further not in dispute that common examination of Diploma Course conducted by the State Council for Vocational Training, was undertaken by the petitioner as well as the private respondent and on the strength of their respective merit, detail mark sheets, both in favour of the petitioner as well as the private respondent, were issued to them, respectively by the State Council for Vocational Training. 11. Whereas, in the case of the petitioner, the certificate for Vocational Couse was issued on 29.07.2007, in the case of private respondent, it was issued on 28.07.2007. In other words, the vocational course certificate was prepared one-day prior in the case of the private respondent as compared to the petitioner. 12. Now, the moot issue which the Court has to determine is whether the act of respondents-State of offering appointment to the private respondent on the ground that said respondent had a right of consideration for appointment before the petitioner, as the vocational course certificate stood issued to her prior in time than the petitioner, is sustainable in the eyes of law or not, and whether challenge to the appointment so made by respondents No.1 and 2, by the petitioner on the ground that the appointment should have been offered to him, because he was elder in age as compared to the private respondent, is sustainable in law or not. 13. I will first refer to the contention, which has been raised by the petitioner that he should have been offered appointment over and above the private respondent on account of age factor. In my considered view, there is a fallacy in the said contention of the petitioner for the reason that it is settled law that age is taken into consideration for the purpose of offering appointment inter-se two candidates if both candidates are found equal in all terms including merit. Meaning thereby that if the inter-se merit of the candidates is same, then, in such eventuality, age of the candidates comes into play and the candidate who is elder is generally offered appointment. Meaning thereby that if the inter-se merit of the candidates is same, then, in such eventuality, age of the candidates comes into play and the candidate who is elder is generally offered appointment. Here the documents which are on record, demonstrate that merit of the petitioner and the private respondent, admittedly, is not on the same footing. Therefore, plea of the petitioner that appointment of the private respondent is bad in law, as he being elder in age, ought to have been offered appointment over and above the private respondent, cannot be accepted and is rejected. 14. Now, I will discuss the stand taken by the respondents-State. The stand of the State is that it offered appointment to the private respondent, as the certificate of the vocational course, issued to the private respondent, was earlier in time as compared to the petitioner, therefore, the private respondent had a right of consideration for appointment before the petitioner on the basis of date of issuance of original certificate. In my considered view, the stand so taken by the State is also not sustainable in the eyes of law and the same is completely arbitrary. This, I say so for the following reasons. The petitioner and the private respondent joined the concerned Diploma Course in the same year and passed the same, in the same year. To make it more clear, both the petitioner and private respondent joined the Course in the year, 2005, and as the Course was of two years' duration, they passed the same in the year, 2007. It is not in dispute that both the candidates participated in the examination process, which was held by State Council for Vocational Training, Himachal Pradesh, in the year, 2007. Now, thereafter, what has happened is that, but obvious because hundreds of candidates appeared in the said Diploma examination, the issuance of the detail mark sheet in favour of the candidates, was a cumbersome process and the same could not have been completed in one day. Therefore, certificates stood prepared on different dates. For example, in the case of the petitioner, certificate was prepared on 29.07.2007, whereas in case of the private respondent, the same was prepared a day before, i.e., 28.07.2007. Therefore, certificates stood prepared on different dates. For example, in the case of the petitioner, certificate was prepared on 29.07.2007, whereas in case of the private respondent, the same was prepared a day before, i.e., 28.07.2007. In these circumstances, when both the candidates had joined the batch in the same year and had passed the batch in the same year, then respective right of the candidates for appointment on batch-wise basis, cannot be made dependent upon a clerical act, i.e., preparation of the detail mark sheet, as has been done in this case by the State. This is completely fallacious. in a situation, where two candidates pass a course in the same year by participating in the same examination, then prudence and common sense demands that their eligibility and right of consideration has to be assessed on the marks scored by them in the examination, coupled with any other eligibility criteria and not on the fortuitous event of the date of preparation of the mark sheets. Therefore, the stand of the State is also not sustainable in law. 15. In the judgment which has been relied upon by the learned Additional Advocate General, following was the question, which was before the Hon'ble Full Bench for its consideration:- "The question as to whether the date of commencement of the academic year (session) or passing of its prescribed examination would be the relevant date for construing the expression "batchwise, as stipulated in various Rules, guidelines and instructions issued by the State of Himachal Pradesh, prescribing the eligibility criteria for appointment/ promotion to posts reserved in various Departments of the State of Himachal Pradesh, is urged for consideration before us." 16. The following is the answer which was given to the said question by the Hon'ble Full Bench:- "22. The concept of session-wise/batchwise selection was evolved and introduced by the State to give appointment by way of direct recruitment to candidates who fulfilled the prescribed essential educational qualifications/ criteria, in relation to the examination cleared for the year in which the batch stood admitted. There may be a candidate who may have taken admission in a particular academic session, but may not have cleared the prescribed examination for acquisition of mandatory educational qualification within the stipulated period of time. Such candidate cannot be considered in the batch of the academic session in which he is admitted. There may be a candidate who may have taken admission in a particular academic session, but may not have cleared the prescribed examination for acquisition of mandatory educational qualification within the stipulated period of time. Such candidate cannot be considered in the batch of the academic session in which he is admitted. The intention of the Rule makers is evidently clear from the instructions imparted to the learned Advocate General of Himachal Pradesh by the Principal Secretary (Education) to the Government of Himachal Pradesh, that the "date of issuance of original professional certificate recorded on the detail marks card of final professional examination of the candidate by the concerned University, shall be deemed date for reckoning the batch seniority of the candidate. If more than one candidate is issued the final professional examination certificate on the same date, then inter-se-merit would be determined on the basis of academic record of the candidate, knowledge of customs/manners as well as Viva voce". This clarification does not supplant the Rules but only supplements their intention and application, which we find is consistent with the law laid down by the apex Court considered by us (supra). 23. In our considered view, the expression "batch" necessarily would mean the date on which the candidate qualifies the examination and acquires the mandatory educational qualifications for consideration in accordance with the Rules. Any other interpretation would only do violence to the Rules/pre-existing practice and cannot be said to be just, fair, equitable and reasonable and would in fact result in absurdity. Admission of a candidate to an academic session on its commencement cannot be construed to be "batch" for the purpose of public appointment for the simple reason that as on the date for consideration, the candidate must have acquired the eligibility criteria, which is a sine qua non for consideration to any public post. "Batch" is only an identification of a group, which is fully eligible for consideration. Equality must precede any priority of seniority of a batch in public appointments, which is the Constitutional mandate of Article 14. Doctrine of past practice is squarely applicable in the instant case. The practice adopted by the State over a continuous period of time, now stands accepted and codified with the enactment of the "PET 2010 Rules", which we find to be in consonance with the Constitutional principles considered (supra). Doctrine of past practice is squarely applicable in the instant case. The practice adopted by the State over a continuous period of time, now stands accepted and codified with the enactment of the "PET 2010 Rules", which we find to be in consonance with the Constitutional principles considered (supra). The Legislative and the Executive intent is thus crystal clear. Where Rules are clear and explicit, the same have to be given effect to. We find that there is no ambiguity at all either in the Rules or the stand taken by the State, reflecting the practice adopted over a continuous period of time." 17. In my considered view, the issue as stands settled by the Hon'ble Full Bench and rightly so is that a candidate belonging to a particular batch, who passes the examination considerably late, cannot say that the date of his passing of examination has to be relegated back to the batch to which he belongs and the same, has to be treated in sync with the date on which he passes the final examination. However, this issue or this controversy has no relevance as far as this writ petition is concerned, because there is no dispute with regard to the respective batches of the parties concerned herein. 18. At this stage, it is also relevant to take note of the stand, which has been taken by the private respondent that on merit, she was better placed than the petitioner, therefore also, there is no illegality in offering appointment to the private respondent over and above the petitioner. In this regard, all that this Court can observe in the peculiar facts of the case, especially in view of the stand which stood taken by the petitioner in assailing appointment of the private respondent and the stand which was taken by respondents No.1 and 2-State in justifying their act, is that as this Court has come to the conclusion that the ground on which the State has defended the appointment of the private respondent, is not sustainable in the eyes of law, therefore, this petition is disposed of with direction to the Authorities concerned to revisit the respective merit of the petitioner as well as the private respondent on the strength of the documents which were with the Authorities concerned at the time when their respective candidature was considered. This shall be done in consonance with the criteria which the Authorities had adopted at the relevant time, when the appointments were made. In case, after undertaking this process, the Authorities come to the conclusion that the petitioner is more meritorious than the private respondent, then the services of the private respondent shall be terminated and appointment shall be offered to the petitioner. However, in case, the Authorities come to conclusion that the private respondent is more meritorious to the petitioner, then her services will be continued. Necessary evaluation shall be done by the Authorities concerned, positively, on or before 31st December, 2020. Till same is done, the private respondent shall continue to discharge her duties. It is clarified that as far as the respective merit of the parties is concerned, this Court has not made any observation qua the same. Pending miscellaneous application(s), if any, also stand disposed of.