Research › Search › Judgment

Himachal Pradesh High Court · body

2023 DIGILAW 207 (HP)

Pooja Thakur v. State of H. P.

2023-04-06

SANDEEP SHARMA

body2023
JUDGMENT : Sandeep Sharma, J. By way of Original Application No. 1737 of 2018, which now on account of abolition of Himachal Pradesh Administrative Tribunal, stands transferred to this Court, petitioner has prayed for the following substantive reliefs:- “1). Direct the respondents to consider the case of the applicant for public employment on her sports achievements in category -I in terms of reservation notified in Annexure A-1 dated 28-05- 1999 under condition-A. By directing the respondent to appoint the applicant as DSP under Sport quota in place the respondent no.5 who is not eligible as per the State Policy. ii) That in alternative prayer the respondents may kindly be directed to give the post of HAS if the quota of DSP has been exhausted since there is parity between these posts on the basis of pay scale.” 2. The facts, which are relevant for adjudication of the case are that respondent-State framed a policy on 28th May, 1999 (Annexure A-1) for providing reservation to the distinguished sportspersons in various services under the Government. Certain amendments came to be made to the aforesaid policy, vide notification dated 22nd January, 2002 (Annexure A-2). The petitioner herein participated in National Games in Kabbadi Sport in the year 2015. The petitioner excelled in the game of Kabbadi, which figures at Sr. No. 21 of the notification dated 28.05.1999 (Annexure A-1) and was awarded Silver Medal in National Games, therefore in terms of policy for reservation, she came to be offered post of Inspector in the Department of Excise and Taxation, Himachal Pradesh. Besides above, the State of Himachal Pradesh also bestowed highest Sport Award i.e. Parshu Ram Award upon her on 15.08.2012. Along with the petitioner other distinguished sportsperson namely Ajay Thakur, who had also excelled in game of Kabbadi, was also offered appointment as Inspector in the Department of Excise and Taxation, but he refused to accept the same. Though pursuant to the aforesaid offer, the petitioner joined as Inspector in Excise and Taxation Department but also kept on participating in National and International Games, details of which are given in Annexure A-3. Though pursuant to the aforesaid offer, the petitioner joined as Inspector in Excise and Taxation Department but also kept on participating in National and International Games, details of which are given in Annexure A-3. Since the petitioner won a Gold Medal in Asian Games held in South Korea in the year 2014, which fall at Serial No.1 in Sports Policy, she made a representation to Hon’ble the Chief Minister of Himachal Pradesh to offer her appointment against Class-I post of Deputy Superintendent of Police, but such prayer of her was not paid any heed. To the contrary, another distinguished sportsperson namely, Ajay Thakur, who also won Gold Medal in 17th Asian Games held in South Korea in November, 2014, was offered appointment against the post of Deputy Superintendent of Police in Himachal Pradesh in the year 2017. 3. On account of aforesaid discrimination meted out to the petitioner, she approached the erstwhile Himachal Pradesh Administrative Tribunal by preferring Original Application No. 4438 of 2017, seeking therein a direction to the respondent-State to give her appointment against Class-1 post in terms of notification dated 28th May, 1999. Since the respondent-State stated before erstwhile Administrative Tribunal that the matter with regard to appointment of the petitioner against Class-I post is under active consideration of the Government, it disposed of the Original application with a direction to the respondents/competent authority to expedite the matter regarding appointment of the applicant therein into HPPS (or HPAS, Excise and Taxation Officer as requested by her vide representation submitted to Hon’ble the Chief Minister) against 3% reservation to the distinguished sports persons as was done in the case of Mr. Ajay Thakur. Though needful was ordered to be done not later than 28th February, 2018, but since no steps, if any, were taken by the respondents to comply with the afore order, the petitioner once again approached Administrative Tribunal in the instant proceedings, which now stand transferred to this Court. 4. Pursuant to the notice issued in the instant proceedings, the respondent-State has filed reply, wherein factum with regard to the petitioner having won Gold Medal in 17th Asian Games held in South Korea, has not been disputed. Similarly, there is no denial to the fact that similarly situate person i.e. Sh. 4. Pursuant to the notice issued in the instant proceedings, the respondent-State has filed reply, wherein factum with regard to the petitioner having won Gold Medal in 17th Asian Games held in South Korea, has not been disputed. Similarly, there is no denial to the fact that similarly situate person i.e. Sh. Ajay Thakur, after his having been awarded Gold Medal in 17th Asian Games, was offered appointment to the post of Dy.S.P in the Department of Police. Besides above, this Court finds from the record that one Ms. Sushma Verma, distinguished Cricketer, was also offered appointment against the post of Dy.S.P in the Department of Police Himachal Pradesh, on account of her having participated in International Cricket. The prayer made in the instant petition on behalf of the petitioner has been sought to be refuted on the ground that she has already availed Sports quota in the year 2015 at the time of her appointment against the post of Inspector Excise and Taxation, Himachal Pradesh. 5. Since it never came to be disputed on behalf of the respondent-State that distinguished sportsperson, who participates in International Games is entitled to be offered appointment against the higher post coupled with the fact that two similarly situate persons, namely Ajay Thakur and Ms. Sushma Verma, were given appointment against the post of Dy.S.P, this Court passed an order dated 16.12.2019, which reads as under:- “Though in terms of order dated 12.12.2019, Sh. Madan Lal, Superintendent Grade–II, office of Director, Youth Services and Sports H.P., Shimla has come present with records, but despite there being specific direction, Director, Youth Services and Sports H.P., has not come present. No application seeking therein exemption has been filed before this court, rather vide communication dated 15.12.2019, Registrar Judicial of this Court has been informed with regard to inability of Director, Youth Services and Sports H.P., to come present in the Court in terms of order dated 12.12.2019. Though having noticed aforesaid callous and indifferent attitude of the officer concerned, this Court would have passed harsh order against him, but on the vehement request having been made by the learned Additional Advocate general, matter is adjourned. Though having noticed aforesaid callous and indifferent attitude of the officer concerned, this Court would have passed harsh order against him, but on the vehement request having been made by the learned Additional Advocate general, matter is adjourned. Careful perusal of record made available to this Court reveals that in January, 2019, case of the petitioner was recommended, but till date, relief, as has been prayed for, in the instant petition has not been extended to her, whereas material available on record, especially notification dated 7.2.2019, reveals that Capt. Vijay Kumar (retired) in relaxation of 3% reserved quota, has been given appointment in the department of Police against class-1 post. Document annexed with the petition clearly reveal that petitioner herein, who has represented India in so many events i.e. Common Wealth Games, Asian Games, have been deprived of her right of being appointed against Class-1 post against 3% quota and as such, this Court hopes and trusts that on or before next date of hearing, necessary action towards offering appointment to the petitioner would be taken by the department itself, failing which, this Court may have to pass appropriate orders. List on 30.12.2019.” 6. A perusal of the aforesaid order clearly reveals that this Court, after having perused the records made available to this Court, found that one Captain Vijay Kumar (retired) was also offered appointment in the Department of Police against Class-1 post in relaxation of 3% reserved quota. Since, the petitioner who represented India in so many events i.e. Common Wealth Games, Asian Games etc. was deprived of her right of being appointed against Class-I post against 3% quota, this Court on the request of learned Additional Advocate General, adjourned the matter from time to time enabling respondent-department to take up the issue with higher authorities. 7. On 05.03.2020, learned Advocate General placed on record intra-departmental communication dated 03.03.2020 to state that there is no post of Deputy Superintendent of Police available with the Home Department, against which petitioner can be given appointment being outstanding sportsperson. 7. On 05.03.2020, learned Advocate General placed on record intra-departmental communication dated 03.03.2020 to state that there is no post of Deputy Superintendent of Police available with the Home Department, against which petitioner can be given appointment being outstanding sportsperson. However, having taken note of the aforesaid communication, wherein it stood recorded that the petitioner can claim Class-1 post in the Excise & Taxation Department, where she had been otherwise rendering her services as Excise and Taxation Inspector, this Court requested the learned Advocate General to discuss the matter with the worthy Chief Secretary of Himachal Pradesh so that no injustice is caused to the petitioner, who undisputedly rendered great services to the State and Nation as a whole so far as sports activities are concerned. 8. On 09.03.2021, learned Senior Additional Advocate General apprised this Court that the post of Excise and Taxation Officer in Excise and Taxation Department was offered to the petitioner, but since she refused to accept the same, her prayer for appointment in the Department of Youth Services and Sports, Institute of Mountaineering and Allied Sports, Manali, Home Guards or School Cadre D.P. and PET and College Cadre Lecturer, is under consideration of the Competent Authority. Having taken note of the aforesaid submission of learned Sr. Additional Advocate General, this Court repeatedly adjourned the matter, but in vain. 9. However on 05.10.2021, the respondent-State placed on record communication dated 04.08.2021, issued under the signatures of Special Secretary (Home) to the Government of Himachal Pradesh, wherein it is stated that it may not be possible to give appointment to the petitioner as Deputy Superintendent of Police in the Home Department because at present seats available in the Sports quota are filled up. Since, during proceedings of the case, learned Additional Advocate General argued before this Court that no Sportsperson can be offered appointment in terms of Sports Policy without there being concurrence of Council of Ministers and in consultation with H.P Public Service Commission, this Court vide order dated 09.11.2021 called upon learned Senior Additional Advocate General to verify whether Office Order dated 23.12.2020, thereby offering appointment to Ms. Pooja Thakur i.e. petitioner herein, as an Excise and Taxation Officer against the post reserved for distinguished sportspersons, was issued with prior concurrence of Council of Ministers and in consultation with H.P Public Service Commission or not? 10. Pooja Thakur i.e. petitioner herein, as an Excise and Taxation Officer against the post reserved for distinguished sportspersons, was issued with prior concurrence of Council of Ministers and in consultation with H.P Public Service Commission or not? 10. On 15.11.2021, learned Senior Additional Advocate General placed on record copy of communication dated 12.11.2011, issued under the signatures of Special Secretary (State Taxes and Excise) to the Government of Himachal Pradesh, perusal whereof clearly revealed that offer of appointment to the post of Excise and Taxation Officer was made to the petitioner after approval of the Council of Ministers and in consultation with the Himachal Pradesh Public Service Commission. 11. Though, initially the petitioner had refused to accept the offer of appointment given by the respondent-State against the post of Excise and Taxation Officer, but subsequently she agreed to accept the aforesaid proposal, subject to the condition that she shall be given seniority from the date of her representation made before Hon’ble the Chief Minister for appointment to the post of Deputy Superintendent of Police, as was done in the case of Ajay Thakur. 12. Learned Senior Additional Advocate General in pursuance of order dated 14.12.2021, placed on record communication dated 20.12.2021, issued under the signatures of Additional Chief Secretary (ST & E) to the Government of Himachal Pradesh, thereby expressing inability of the Department to grant seniority to the petitioner from the date of making application. It is quite apparent from the facts, as have been noticed above, that the petitioner being distinguished Sports person and on account of her having participated in International Games, was eligible to be offered higher post in terms of Sports policy, as was done in the case of other similarly situate persons namely Sh. Ajay Thakur, Ms. Sushma Verma and Captain Vijay Kumar, but yet she was denied such offer of appointment against higher post on the ground that she had already availed Sports quota at the time of her being appointed as Inspector, Excise and Taxation Department, Himachal Pradesh, on account of her having participated in National Games held in the year 2012. No doubt in the year 2012 petitioner was appointed as Inspector, Excise and Taxation on account of her having participated in National Games, but that does not mean that she is estopped from claiming appointment against higher post after her having participated in International Games. 13. No doubt in the year 2012 petitioner was appointed as Inspector, Excise and Taxation on account of her having participated in National Games, but that does not mean that she is estopped from claiming appointment against higher post after her having participated in International Games. 13. A bare reading of provisions occurring in the policy dated 28th May, 1999 (Annexure A-1), relevant portion whereof is extracted hereunder, reveals that the Government may with the approval of Cabinet and in consultation with HPPSC, appoint distinguished sportspersons of category I, II and selective sportspersons in category III to Class I and II posts in departments, boards, corporations, autonomous bodies other than those mentioned above, such appointments will, however be limited to 3% of the vacancies. “The Government may with the approval of Cabinet and in consultation with HPPSC appoint distinguished sportsperson of category, I, II and selective sports persons in category III to Class I and II posts in departments, boards corporations, autonomous bodies other than those mentioned above. These appointments will however be limited to 3% of the vacancies. 3% reservation in Class-I and Class-ll in other departments will be given in special cases specifically approved by the Council of Ministers.” 14. Criteria for selection of outstanding sportspersons, who are eligible for employment in Government Departments/Boards Corporations and Universities, has been given in Annexure-“B” of the aforesaid policy, which reads as under:- “CATEGORY NO. I I. Medal winners of Olympic Games/Winter Olympics. II. Commonwealth Games. III Medal winners of Asian Games Winter Asiad. CATEGORY NO. II I. Participation in Olympic Games. II. Participation in Commonwealth Games. III. Participation in Asian Games. CATEGORY No. III I. Medal winners in National Games. II. Medal winners in recognised Senior National championship. CATEGORY No. IV I. Medal winners in All India Inter-Versity Sports Tournaments. II. Medal winners in All India National School Games. III. Medal winners in recognized Jr.National Sports Championships.” 15. Medal winners of Olympic Games/Winter Olympics, Commonwealth Games and Asian Games and Winter Asiad, fall in Category No.I. In view of the aforesaid Sports policy, admittedly the petitioner was to be offered appointment against Class-I post. II. Medal winners in All India National School Games. III. Medal winners in recognized Jr.National Sports Championships.” 15. Medal winners of Olympic Games/Winter Olympics, Commonwealth Games and Asian Games and Winter Asiad, fall in Category No.I. In view of the aforesaid Sports policy, admittedly the petitioner was to be offered appointment against Class-I post. When the petitioner had participated in National Games, she rightly came to be offered appointment against Class-III post i.e. Inspector, Excise and Taxation Department, Himachal Pradesh as per aforesaid policy, but once she won Gold Medal in Asian Games held in South Korea in the year 2014, she admittedly became eligible to be offered appointment against Class-I post, as has been provided in Annexure “B” of Sports Policy. Similarly the fact that the petitioner already stood appointed against Class-III post under Sports quota, could not be a ground for the respondent-State to reject the claim of the petitioner for higher post, especially when it is not in dispute that she became eligible to be offered appointment against Class-I post on account of her having won Gold medal in Asian Games. If the aforesaid argument raised on behalf of the respondent-State is accepted, very purpose and object of providing reservation to the distinguished sportspersons would be defeated and can never be achieved. 16. Sportspersons after having participated in National games would always strive hard to get a chance to participate in International games. After being appointed in Government service on the basis of participation in National games may be against a class-III post, distinguished sportsperson is not estopped from making an effort to be part of squad selected for International games. The very object and purpose of offering appointment under sports quota is to promote sports in the Country. The petitioner herein initially participated in National games but yet after being appointed against class-III post under sports quota she did not stop playing sport of Kabaddi rather again participated in International Games and bagged gold medal for the Country. If the argument raised by the respondent-State that since the petitioner has already availed sports quota at the time of her appointment in class-III post i.e. Inspector, Excise and Taxation Department on the basis of her participation in National games is accepted, the very purpose of offering appointment under sports quota would be defeated. If the argument raised by the respondent-State that since the petitioner has already availed sports quota at the time of her appointment in class-III post i.e. Inspector, Excise and Taxation Department on the basis of her participation in National games is accepted, the very purpose of offering appointment under sports quota would be defeated. A sportsperson after being appointed in Government service on the basis of his/her participation in National games would become content and he/she would not make efforts to further participate in International games. Very purpose of offering appointment to the distinguished sportspersons is to encourage them to become good sportspersons and represent Country in International tournaments. Since, in the case at hand, the petitioner after having participated in National games became eligible to be appointed against class-III post under sports policy, as has been discussed hereinabove, her initial appointment to the post of Inspector, Excise and Taxation Department to the Government of Himachal Pradesh under sports quota shall not be a bar for her to put forth her claim to be considered against higher post as has been provided under sports policy. 17. Admittedly in the year 2012, the petitioner participated in National Games in the Game of Kabaddi and as such she was offered appointment to Class-III post as Inspector of Excise and Taxation Department, but definitely acceptance of Class-III post would not debar the petitioner to claim higher post, especially after her having achieved excellence in International Games. 18. Repeatedly, it has been claimed on behalf of the respondent as has been taken note hereinabove, that 3% quota, against which the petitioner could be offered appointment to the higher post, has been exhausted, but record clearly reveals that distinguished Sports-person namely Captain Vijay Kumar (Retired) and Ms. Sushma Verma were offered appointment against the post of Deputy Superintendent of Police in relaxation of 3% quota. This Court finds from the record that while representation made by the petitioner to the Hon’ble Chief Minister for her appointment against Class-I post was pending, respondent-State offered appointment to Ms. Sushma Verma on 9.10.2017 against the post of Deputy Superintendent of Police. Similarly pending consideration the case of the petitioner, respondent-State by adopting pick and choose method again offered appointment to Captain Vijay Kumar (retired) against the post of Deputy Superintendent of Police on 07.02.2019 in relaxation of 3% quota in the Police Department. 19. Sh. Sushma Verma on 9.10.2017 against the post of Deputy Superintendent of Police. Similarly pending consideration the case of the petitioner, respondent-State by adopting pick and choose method again offered appointment to Captain Vijay Kumar (retired) against the post of Deputy Superintendent of Police on 07.02.2019 in relaxation of 3% quota in the Police Department. 19. Sh. Ajay Thakur and the petitioner herein after theirs having participated in Asian games held in south Korea in the year 2014, applied for appointment against Class-I post in the Department of Police, Himachal Pradesh, but the respondent- State acceded to the request made on behalf of Mr. Ajay Thakur and on 28.03.2017 offered him appointment against the post of Deputy Superintendent of Police but kept on lingering the case of the petitioner. Moreover, this Court finds that Ms. Sushma Verma though is a distinguished Sportsperson and has participated in National Cricket, but was not otherwise eligible to be offered appointment in terms of Sports Policy against the post of Deputy Superintendent of Police. 20. Annexure “B” of the Sports Policy nowhere suggests that game of cricket is played in Olympics, Commonwealth Games or Winter Asiad. There was no occasion for the Department to consider the case of Ms. Sushma for her being appointed to Class-I post in the Department of Police against sports quota under the Sports Policy. Had the respondent-State not offered appointment to Ms. Sushma Verma and Captain Vijay Kumar (retired) in relaxation of 3% quota, this Court would have considered the submission made on behalf of the State that it is not possible to offer appointment to the petitioner against the post of Deputy Superintendent of Police, but having taken note of the appointments made in violation of Sports Policy of the persons mentioned above, this Court is compelled to conclude that action of the respondent-State is not only arbitrary and against the fundamental rights but that also creates discrimination on Gender basis. 21. 21. Leaving everything aside, after having considered the fact that the respondent-State had at one point of time offered appointment to the petitioner against Class-I post in Excise and Taxation Department, which was not accepted by the petitioner for the reason that seniority qua the aforesaid post was not given to her from the date of her making application to the Hon’ble Chief Minister in the year 2015, this Court directed the learned Senior Additional Advocate General to take up the matter with the Department concerned but as has been noticed hereinabove, Department of Excise and Taxation expressed its inability to grant seniority from the date of application. 22. Though the respondents ought to have considered the case of the petitioner for appointment as Deputy Superintendent of Police in Police Department of Himachal Pradesh as was done in the case of Mr. Ajay Thakur, Ms. Sushma Verma and Mr. Vijay Kumar (retired) but since no post of Deputy Superintendent of Police is available against 3% quota in the Home Department, petitioner deserves to be offered appointment against the post of Excise and Taxation Officer, which otherwise stood offered to the petitioner in the year 2015. Since the petitioner immediately after having participated in International Games in the year 2014 made an application to Hon’ble the Chief Minister coupled with the fact that similarly situated person namely Mr. Ajay Thakur was appointed against higher post of Deputy Superintendent of Police in the year 2017, she also deserves to be given seniority against the post of Excise and Taxation Officer from the date of her application to the Hon’ble Chief Minister. 23. Perusal of communication dated 21.08.2015 issued under the signatures of Additional Chief Secretary (Personnel) to the Government of Himachal Pradesh addressed to (i) Additional Chief Secretary (E&T) to the Government of Himachal Pradesh, (ii) the Additional Secretary (Personnel) to the Government of Himachal Pradesh and (iii) the Joint Secretary (Home) to the Government of Himachal Pradesh (Annexure A-6), clearly reveals that the matter with regard to the appointment of petitioner against the higher post in the Department of Excise and Taxation was ordered to be put up for perusal of Hon’ble the Chief Minister in the year 2015, but no action was taken. Though, now offer for appointment against the post of Excise and Taxation Officer already stands made to the petitioner as narrated above, only controversy remains to be adjudicated is with regard to seniority from the date of her making the application. For the reasons taken note hereinabove, the petitioner is entitled to be offered appointment as Excise and Taxation Officer from the date of her making application i.e. July, 2015. If it is so, she is entitled to seniority from the due date alongwith consequential benefits. 24. It is not in dispute that since prior to her being offered post of Excise and Taxation Officer, petitioner had been rendering services in Excise and Taxation Department as Inspector, she shall be entitled to all consequential benefits after her being appointed against the post of Excise and Taxation Officer including seniority. Though, as has been discussed hereinabove, appointments of some of the distinguished sportspersons against higher post under sports quota are not in accordance with law but since they represented the Country in National Games and have brought laurels to the Country, this Court without commenting upon their appointments, deems it fit to dispose of this petition with a direction to the respondent-State to give similar treatment to the petitioner, as has been done in the case of other similarly situate persons. The respondent-State being welfare State cannot be permitted to adopt pick and choose policy while offering appointment to various distinguished sportspersons on the basis of their participation in National and International games. Action of respondent-State in denying appointment to the petitioner against the post of Deputy Superintendent of Police after her having participated in International games, is not only arbitrary but unjust. Since pending representation of the petitioner for being appointed against higher post, respondent-State offered appointment to other distinguished sportspersons in relaxation of 3% quota, this Court has no hesitation to conclude that respondent-State has not acted fairly and while adopting pick and choose policy has meted step motherly treatment to the petitioner. Since pending representation of the petitioner for being appointed against higher post, respondent-State offered appointment to other distinguished sportspersons in relaxation of 3% quota, this Court has no hesitation to conclude that respondent-State has not acted fairly and while adopting pick and choose policy has meted step motherly treatment to the petitioner. Since, at this stage the petitioner is ready and willing to accept appointment against the post of Excise and Taxation Officer, in the Department of Excise and Taxation Department coupled with the fact that at present no post of Deputy Superintendent of Police is available in the Department of Police against 3% quota, present petition is disposed of in the following manner:- (i) Action of respondent-State in not offering appointment to the petitioner against higher post on account of her having participated in International games from the date of her making application i.e July, 2015, is held to be bad in law and same is quashed and set aside. (ii) The respondent-State is directed to offer appointment to the petitioner against the post of Excise and Taxation Officer, Department of Excise and Taxation to the Government of Himachal Pradesh, from the date of application submitted to Hon’ble the Chief Minister and she shall is held entitled to all consequential benefits from the due date i.e. date of submission of application including seniority. 25. Since the petitioner has been fighting for her rightful claim for more than seven years, this Court hopes and trust that the needful shall be done expeditiously, preferably within a period of four weeks from today. 26. Petition stands disposed of in the above terms. All pending applications stand disposed of accordingly.