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2020 DIGILAW 833 (HP)

Robin Singh Mehta v. State of Himachal Pradesh

2020-11-12

JYOTSNA REWAL DUA, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - Since all these petitions relate to the selection and appointment to the posts of Radiographers, therefore, the same were taken up together for hearing and are being disposed of by common judgment. 2. These cases have a chequered history. 3. For the sake of convenience and in order to maintain clarity, facts of CWP No. 3371/2019 are being referred to. 4. The Himachal Pradesh Staff Selection Commissioner, Hamirpur (for short, the Commission), in September 2017 issued an advertisement for filling-up 154 posts of Radiographers, wherein essential educational qualification prescribed was as per the Recruitment and Promotion Rules i.e. (a) (i) 10+2 pass in Science from a recognized Board of School Education/University (ii) Diploma in Radiology from an institution recognized by the Central/HP Government or B.Sc. Degree in Radiology from a recognized University; b) must be registered with Himachal Pradesh Para Medical Council, Shimla. 5. In July 2018, the Commission conducted direct evaluation process for these advertised posts of Radiographers. 6. Thereafter, on 15.12.2018, the Commission declared the result, wherein two candidates Beli Ram and Yogita Chauhan, respondents No. 7 and 8 in CWP No. 3371/2019 were selected, whereas candidatures of the petitioners were rejected by the Commission, which compelled the petitioners and similarly situated persons to challenge the rejection order before the erstwhile H.P Administrative Tribunal by filing various O.As. These original applications were listed in the month of December 2018 and the learned Tribunal passed interim directions holding the petitioners to be eligible for the post in question and directed their results to be prepared by the Commission. 7. All these petitions were eventually disposed of vide common order dated 22.5.2019 by directing the State Government to constitute a committee of experts to examine equivalence of the academic/technical qualifications possessed by the petitioners and recognition thereof and the Commission, was directed to proceed with the matter in light of the report of the committee of experts. 8. The State, in turn, vide notification dated 16.8.2019 constituted an expert committee as was directed. The expert committee had conveyed its report dated 25.9.2019 holding the degrees possessed by the petitioners to be valid for the purpose of recruitment/appointment and such findings have attained finality. However, since the State failed to act even on the basis of the expert committee, the petitioners were constrained to approach this Court by filing instant petitions. 9. The expert committee had conveyed its report dated 25.9.2019 holding the degrees possessed by the petitioners to be valid for the purpose of recruitment/appointment and such findings have attained finality. However, since the State failed to act even on the basis of the expert committee, the petitioners were constrained to approach this Court by filing instant petitions. 9. The claims raised in all these petitions can be categorized in three broad categories. 10. In the first category, all the petitioners(except petitioner No.16) in CWP No. 3371/2019, petitioner(s) in CWP No. 1864/19, 1995/19, 2104/19, 2105/19, petitioner No.2 in CWP No. 3558/19, petitioners No. 2, 3, 5, 7, 8 and 11 in CWP No. 3579/19, petitioners No.2 and 3 in CWP No. 3867/19, stand appointed during the pendency of these petitions and now the only subsisting and surviving claim in their cases is with regard to their seniority. 11. In the second category, petitioner No.16 in CWP No. 3371/2019, petitioners in CWP No. 1864/19, 2105/19, petitioners No. 2, 3, 5, 7, 8 and 11 in CWP No. 3579/19 though were considered, but could not find place in the final selection list because of limited seats, however on the basis of overall merit they succeeded to find place in the waiting list and have thus been kept in waiting panel. 12. In the third category, petitioners in CWP No. 2104/2019 and petitioners No. 2 &3 in CWP No. 3867/19 did not fulfill the eligibility criteria for want of essential education qualification or their names had not been registered with Himachal Pradesh Para Medical Council, Shimla on the last date of submission of online recruitment application form(s). 13. As regards first category, as observed above, there is no dispute with regard to their eligibility and educational qualification and the only question relates to determination their seniority. 14. It is more than settled that if a candidate has been wrongly excluded from the process of the appointment on account of illegal and arbitrary action on behalf of the State, then he is entitled to notional seniority from the date, the similarly situated persons have been appointed. Reference in this regard can conveniently be made to a recent judgment of the Hon'ble Supreme Court in C. Jayachandran vs. State of Kerala and ors., (2020) 5 SCC 230 , wherein it was observed as under:- 35. Reference in this regard can conveniently be made to a recent judgment of the Hon'ble Supreme Court in C. Jayachandran vs. State of Kerala and ors., (2020) 5 SCC 230 , wherein it was observed as under:- 35. The earlier writ petition filed by the appellant was allowed on 13th September, 2010. The Division Bench of the High Court has directed to re-cast the seniority amongst the seven shortlisted candidates. The appellant was one of them. The challenge to the said order by three affected candidates remained unsuccessful when SLP was dismissed by this Court on 8th October, 2010. The SLP was filed by the candidates who were granted benefit of moderation of marks. Once the direction of the Division Bench has attained finality, the appellant was entitled to seniority as per the select list to be revised as per merit of the candidates. In terms of Rule 6(2), the seniority is to be determined by the serial order in which the name appeared in the appointment order. The argument of learned counsel appearing for respondent No. 5 that the appellant was not appointed by the same appointment order, therefore, the appellant cannot claim seniority is not tenable. The appellant was entitled to be appointed along with other three candidates but because of the action of the High Court in adopting moderation of marks, the appellant was excluded from appointment. The exclusion of appellant from appointment was on account of an illegal act by the High Court which has been so found by the judgment dated 13th September, 2010. Since the select list has to be revised, the appellant would be deemed to be the part of the appointment along with other candidates in the same select list. As the actual date of appointment was on 24th February, 2011, the appellant cannot actually be treated to be appointed on 30th March, 2009 but is entitled to notional appointment from that date and consequential seniority. 36. In Sanjay Dhar, a three-Judge Bench of this Court held as under: "16. For the foregoing reasons the appeal is allowed. The judgment under appeal is set aside. 36. In Sanjay Dhar, a three-Judge Bench of this Court held as under: "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 merit in the select list prepared by J&K PSC and later forwarded to the Law Department..." 37. In Lakshmana Rao Yadavalli, this Court held as under: "13. For the reasons recorded in Lakshmana Rao Yadavalli v. State of A.P., the present appeals are allowed and it is directed that the High Court as well as the respondent State will do the needful for giving appointment to the appellant with retrospective effect i.e. from the date on which she ought to have been appointed, however, she shall not be paid salary for the period during which she has not worked as a District and Sessions Judge. We are sure that the respondents will do the needful for the appointment of the appellant at an early date." 15. This otherwise has been consistent view of this Court in Balak Ram vs. State of H.P.,2015 1 ShimLC 504 , Poonam Kumari vs. State of Himachal Pradesh & anr., (2015) 4 ILR(HP) 827 and Monica Sharma vs. Dr. Y. S. Parmar University of Horticulture and Forestry, Nauni & ors., (2015) 5 ILR(HP) 491 . 16. Accordingly, the claims of the petitioners in first category are allowed and consequently, these petitioners are held entitled for grant of seniority from the date when respondents No. 7 and 8 Beli Ram and Yogita Chauhan were appointed i.e. 15.12.2018. 17. Adverting to the second category, we may notice that it has come on record in the letter of Director Health Services to the Additional Chief Secretary (Health) dated 28.8.18 that as per the total cadre strength of 283 Radiographers only 91 are in position. 18. As per advertisement, 154 posts of Radiographers were advertised, whereas as per the result notifications, dated 15.12.2018 and 19.6.2020, the respondent-Commission declared result against 115 posts, against which only 87 candidates were selected, i.e. 2 candidates as per result notification dated 15.12.2018 and 85 vide result notification dated 19.6.2020. In this manner, as many as 67 posts are still vacant. 19. In this manner, as many as 67 posts are still vacant. 19. There is no reason whatsoever given as to why the requisition of posts advertised was withdrawn vide letter dated 16.12.2018, relevant portion whereof reads as under: "I have the honour to submit that the requisitions for filling up the post of Radiographers were sent your good offices vide this Directorate requisition letter No.Swa-Ni(1)Kh(2)27/91 dated 20.08.2015, 15.07.2016, 03.10.2016 (photocopies attached) may be treated as withdrawn & recommends the names of eligible candidate as per requisition letter dated 01.05.2017 & 31.08.2017 (photocopies attached). You are, therefore, requested to kindly recommend the names of eligible Radiographers as per requisition dated 01.05.2017 & 31.08.2018." 20. The only explanation offered by the respondent-State for withdrawing these posts is contained in para 13 of its reply, relevant portion whereof reads as under:- "13. .........It is added that after taking into consideration the vacancies of Radiographers against the total cadre strength as also the approval of the Government to fill up the vacancies, necessary clarification with regard to the number of vacancies to be filled up was made by the respondent department with all the recruitment agencies concerned including the respondent No.4 to recommend the names of eligible Radiographers as per requisitions dated 1.5.2017 and 31.8.2018. Hence, the withdrawal of some vacancies, if any, did not substantiate any inadmissible claim of the petitioners in any way and manner, more particularly, when they were not found eligible to be considered as per the provisions of the then existing and prevailing R&P Rules dated 15.11.2016 in the light of the clarification given to it in the matter and further when still 113 posts remained unfilled/vacant with the respondent No.4 for want of eligible candidates as per the then existing and prevailing R &P Rules, after completion of the earlier selection process." 21. The aforesaid explanation leads us nowhere as it is not the case of the State that these petitioners had not qualified and were not in the zone of consideration. Rather, it has specifically come on record that these petitioners have been kept in waiting panel only because of limited seats. 22. Therefore, in such circumstances, the issue arises for consideration is that whether the respondent-State could have withdrawn the requisition without giving any cogent reasons for the same. 23. This issue has been considered by the Hon'ble Supreme Court in several cases. 24. 22. Therefore, in such circumstances, the issue arises for consideration is that whether the respondent-State could have withdrawn the requisition without giving any cogent reasons for the same. 23. This issue has been considered by the Hon'ble Supreme Court in several cases. 24. In Miss Neelima Shangla v. State of Haryana and Others, (1986) 4 SCC 268 , the Hon'ble Supreme Court observed that it is always open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. 25. The ratio laid down in this judgment was affirmed by Constitution Bench of the Hon'ble Supreme Court in Shankarsan Dash vs. Union of India, (1991) 3 SCC 47 , wherein it was held that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, still the successful candidates acquire an indefeasible right to be appointed. According to the Hon'ble Supreme Court, notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, the Hon'ble Supreme Court also stated that it does not mean that the State has the licence of acting in an arbitrary manner and the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. It was declared that if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. 26. In Mrs. Asha Kaul vs. State of Jammu and Kashmir, (1993) 2 SCC 573 , the Hon'ble Supreme Court again reiterated that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment. The Hon'ble Supreme Court also stated that there is obligation of the Government to act fairly and the whole exercise cannot be reduced to a mere farce. The Hon'ble Supreme Court also stated that there is obligation of the Government to act fairly and the whole exercise cannot be reduced to a mere farce. It was further observed that having sent a requisition/request to the Public Service Commission to select a particular number of candidates for a particular category in pursuance of which the commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government, the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. 27. In view of the aforesaid exposition of law, it can legitimately be concluded that even though the selected candidate has no vested right in the qualifying examination for getting appointed against the posts advertised/notified, yet the State cannot withdraw the seats arbitrarily without there being any bona fide or appropriate reasons and the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. 28. Discussion in this regard would be incomplete in case we do not take note of the recent judgment of the Hon'ble Supreme Court in Dinesh Kumar Kashyap and ors. Vs. South East Central Railway and ors., (2019) 12 SCC 798 . 29. In this case the facts were - respondent No.1, South East Central Railway (for short the SECR) issued an advertisement on 15.12.2010 inviting applications for filling up 5798 posts in the pay scale of Rs.5200-Rs. 20,200 + Grade Pay of Rs.1800/ in Raipur, Bilaspur and Nagpur divisions and workshops. The claim of the original writ petitioners who filed applications before the Central Administrative Tribunal (for short CAT) was that as per the existing instructions the select list was prepared with 20% extra candidates. Therefore, the result of 6995 candidates was declared who were successful. The appellants fell in the category of extra 20%. The SECR did not make the appointments from these 20% extra candidates though 624 posts remained unfilled in the general category itself. The appellants who fell in the 20% category of extra candidates filed applications before the CAT praying that the SECR be directed to fill in the unfilled vacancies from this list of 20% candidates. This application was rejected by the Tribunal. Allowing the appeal, the Hon'ble Supreme Court observed as under:- 5. The appellants who fell in the 20% category of extra candidates filed applications before the CAT praying that the SECR be directed to fill in the unfilled vacancies from this list of 20% candidates. This application was rejected by the Tribunal. Allowing the appeal, the Hon'ble Supreme Court observed as under:- 5. The main issue which arises before us is whether the SECR could have ignored the 20% extra panel despite the letter dated 02.07.2008 without giving any cogent reason for the same. No doubt, it is true, that mere selection does not give any vested right to the selected candidate to be appointed. At the same time when a large number of posts are lying vacant and selection process has been followed then the employer must satisfy the court as to why it did not resort to and appoint the selected candidates, even if they are from the replacement panel. Just because discretion is vested in the authority, it does not mean that this discretion can be exercised arbitrarily. No doubt, it is not incumbent upon the employer to fill all the posts but it must give reasons and satisfy the court that it had some grounds for not appointing the candidates who found place in the replacement panel. In this behalf we may make reference to the judgment of this Court in R.S. Mittal vs. Union of India (UOI), (1995) Supp2 SCC 230 , wherein it was held as follows: 10. .....It is no doubt correct that a person on the selectpanel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select-panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select-panel. In the present case, there has been a mere inaction on the part of the Government. There has to be a justifiable reason to decline to appoint a person who is on the select-panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgod within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified. 6. Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of the SECR. 30. Judged in light of the aforesaid exposition of law and as observed above, it would be noticed that the respondent-State has failed to spell out any cogent and convincing reasons as to why number of posts were reduced and why, the candidates, who are otherwise eligible and whose names figure in the waiting list, cannot be appointed. 31. 30. Judged in light of the aforesaid exposition of law and as observed above, it would be noticed that the respondent-State has failed to spell out any cogent and convincing reasons as to why number of posts were reduced and why, the candidates, who are otherwise eligible and whose names figure in the waiting list, cannot be appointed. 31. Accordingly, the claims of the petitioners in second category are allowed and consequently, the State is directed to offer appointment to these petitioners along with seniority from the date when respondents No. 7 and 8 Beli Ram and Yogita Chauhan were appointed i.e. 15.12.2018. 32. Adverting to the third category, comprising of petitioners in CWP No. 2104/2019 and petitioners No. 2 &3 in CWP No. 3867/19, we find that these petitioners did not possess the requisite essential educational qualification as per the Recruitment and Promotion Rules and had not been registered with Himachal Pradesh Para Medical Council, Shimla on the last date of submission of online recruitment application form. Thus, their claims are not at all sustainable and have therefore rightly been rejected. 33. Having said so, all these petitions are disposed of in the aforesaid terms, so also the pending application(s), if any, leaving the parties to bear their own costs.