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2021 DIGILAW 93 (HP)

Mohan Lal v. State of Himachal Pradesh

2021-03-01

AJAY MOHAN GOEL

body2021
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition, the petitioner has prayed for the following reliefs:- “(i) That the impugned appointment order dated 12.1.2016(A-1) (Colly.) and impugned rejection dated 25.5.2016(A-5) may kindly quashed and set aside being contrary to law. (ii) That the directions may kindly be issued to the respondents to offer appointment as driver to the applicant being more meritorious to respondents No. 3 and 4. (iii) That any other writ, order or direction as this Hon’ble Court may deem just and proper in the facts and circumstances of the case may also be issued and justice be done.” 2. Brief facts necessary for the adjudication of the present petition are as under:- In the year 2016, process was initiated by the respondent-department to fill up six posts of drivers. Out of the six posts so advertised, three posts were for open/General category, two posts were reserved for Scheduled Caste category and one post for Scheduled Tribe category. The petitioner before this Court is a candidate who belongs to Scheduled Caste category. His grievance is that appointment given to the selected candidates by the respondentdepartment is bad in law as the petitioner who was more meritorious than two of the candidates selected under the General/open category, has been denied appointment to the post of driver by following a procedure for selection of reserved category candidates unknown to law and contrary to law laid down by Hon’ble Supreme Court of India in R.K. Sabharwal and others vs. State of Punjab and others, (1995) 2 Supreme Court Cases 745. He submits that those candidates who have been offered appointment and whose names are reflected in Annexure A-2 appended with the petition, have obtained following final marks:- (1) Sh. Inderjeet (Sr. No. 40) (General Category) = 35.83; (2) Sh. Sunil Kumar (Sr. No. 66) (General Category) = 35.83; (3) Sh. Muni Lal (Sr. No. 91) (General Category) 39.66; (4) Sh. Harjeet Kumar (Sr. No. 59) (Scheduled Caste category) =36.83; (5) Sh. Heera Lal (Sr. No. 90) (Scheduled Caste category) = 37.66; and (6) Sh. Jagdish Singh (Sr. No. 48) (Scheduled Tribe Category) =37.50. 3. The petitioner, as per the final result list, secured 36.33 marks, i.e. more marks than two of the selected candidates, namely, Sh. Inderjeet and Sh. Harjeet Kumar (Sr. No. 59) (Scheduled Caste category) =36.83; (5) Sh. Heera Lal (Sr. No. 90) (Scheduled Caste category) = 37.66; and (6) Sh. Jagdish Singh (Sr. No. 48) (Scheduled Tribe Category) =37.50. 3. The petitioner, as per the final result list, secured 36.33 marks, i.e. more marks than two of the selected candidates, namely, Sh. Inderjeet and Sh. Sunil Kumar, yet petitioner has been denied appointment to the post of Driver on the ground that he secured less marks than candidates selected under Scheduled Caste category and therefore, was not entitled for appointment. The stand of the petitioner is that two of the candidates belonging to Scheduled Caste category admittedly had secured more marks than the General Category selected candidates. Then in these circumstances, the department should have offered appointment to the meritorious candidates, though belonging to the reserve category against the post meant for General/ open category and the resultant vacancy of reserved category then should have been offered to the candidates belonging to reserved category as per merit. On this count, the contention of the petitioner is that present petition be allowed and appointment of the candidates less meritorious to the petitioner be quashed and set aside and direction be issued to the respondent-department to offer appointment to the petitioner against the post of Driver. 4. Learned Additional Advocate General has supported the act of the department by submitting that there is no illegality committed by the department by offering appointment to the selected candidates because inter se merit which was obtained by the candidates of the category concerned has been duly maintained and amongst them whoever was found more meritorious was offered appointment. 5. Learned Counsel appearing for private parties adopted the arguments of the State and further submitted that the criteria which was followed by the Government was fair and equitable, as a candidate, who participated in a particular category, could and should have been considered for that particular category only and as the petitioner belongs to Scheduled Caste category, he could have been considered for appointment against Scheduled Caste category only and admittedly private respondents are more meritorious than the petitioner. Alternatively, it has been argued that in case the Court comes to the conclusion that the candidates belonging to the General Category, who have been offered appointment, are less meritorious than the candidates who stand selected under Scheduled Caste category, then the appointment of the private respondents be protected keeping in view the fact that they have been in service since the year 2016. 6. I have heard learned Counsel for the parties and also gone through the pleadings as well as record of the case. 7. There is no dispute on the factual matrix involved in the case, which demonstrates that admittedly two candidates selected under the General Category, namely, Inderjeet and Sunil Kumar, were less meritorious than the candidates selected against the Scheduled Caste category as well as Scheduled Tribe categories. The act of the respondent-department of not offering appointment to the candidates belonging to Scheduled Caste and Scheduled Tribe Categories on the basis of their merit against the posts meant for General Category when said candidates had secured more marks than the candidates belonging to General Category, is arbitrary, unconstitutional and not sustainable in the eyes of law. It is settled law that a person belonging to Scheduled Caste or Scheduled Tribe category, if on merit, secures more marks in a competition than a candidate belonging to General category, then such candidate has to be offered appointment against the post meant for General category and the resultant seats reserved for Scheduled Caste and Scheduled Tribe categories are thereafter to be offered to such candidates who are belonging to reserved categories and who can occupy the posts on the basis of their merit. 8. A five Judge Bench of Hon’ble Supreme Court of India in R.K. Sabharwal and others vs. State of Punjab and others (1995) 2 Supreme Court Cases 745, has been pleased to hold that when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to general category are not entitled to be considered for the reserved posts. On the other hand, the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts, their number cannot be added and taken into consideration for working out the percentage of reservation. 9. This law laid down by Hon’ble Supreme Court of India has been violated by the respondent-department by not offering the posts belonging to General Category to the meritorious candidates of Scheduled Caste and Scheduled Tribe categories, who have scored more marks than candidates of General Category appointed against the said posts. Merit list demonstrates that Shri Muni Lal, a candidate belonging to General Category was No. 1 in the merit followed by Sh. Heera Lal and Shri Jagdish Singh. That being the case, the posts meant for General Category had to be offered to them on the basis of their respective merit and the posts reserved for Scheduled Caste and Scheduled Tribe categories thereafter ought to have been offered to the candidates belonging to these particular categories on the basis of merit obtained by the candidates of these categories. The act of the respondent-department of not preparing a merit list in terms of what has been observed hereinabove has resulted in grave injustice to the candidates like the petitioner who indeed were entitled for appointment against the posts meant for Scheduled Caste category on the basis of merit obtained by them. The Court reiterates that as Shri Heera Lal and Shri Jagdish Singh, candidates belonging to Scheduled Caste and Scheduled Tribe categories respectively, were more meritorious than Shri Inderjeet and Shri Sunil Kumar, the candidates belonging to General Category, these two candidates should have been offered appointment against General categories posts. Shri Harjeet Kumar but obvious had to be offered appointment against the posts meant for Scheduled Caste category as there were only three posts meant for General Category but the second post belonging to Scheduled Caste category had to be offered to the petitioner who was the next candidate in merit after Shri Harjeet Kumar in the merit of Scheduled Caste category candidates. 10. 10. In view of what has been held hereinabove, this writ petition is allowed by holding that the act of the respondent-department of not offering appointment to candidates belonging to Scheduled Caste category against posts meant for General Category on the basis of their merit being higher than candidates belonging to General Category, is bad in law and by further holding that denial of appointment for the post of driver to the petitioner against a post reserved for Scheduled Caste category is also bad in law. Respondents are accordingly directed to offer appointment to the petitioner against a post reserved for Scheduled Caste category as from the date other incumbents stood appointed against said posts. As the selection of the selected candidates has been made as far back as in the year 2016 and since then, they are continuously in service, the Court is not setting aside the appointment of the selected candidates but is directing that the department has to be more careful in future while filling up the posts so that this kind of illegalities are not repeated. The petitioner be offered appointment forthwith but with effect from the date appointment was offered to other incumbents. The appointment shall also entail consequential benefits including that of seniority but the monetary benefits shall be notional, as up to the date the petitioner actually joins the service, and thereafter, actual benefits shall be given to the petitioner. The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.