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2023 DIGILAW 239 (HP)

Vikhyat Guleria v. State of Himachal Pradesh

2023-04-28

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioners have prayed for following reliefs : “(i) This Hon’ble Court may be pleased to quash and set aside Notification dated 20.5.2019, Annexure A-12 in so far as appointment of respondent No. 3, 4, 6 and 8 as Assistant Conservator of Forests is concerned. (ii) That the entire process of selection for the posts of Conservator of Forest Class-I (Gazetted) may kindly be quashed and set aside. (iii) The Press Note at Annexure A-9 dated 22.2.2019 whereby the result for the post of Assistant Conservator of Forests Class-I (Gazetted) in the Department of Forests declared and result prepared by the respondents after the judgment passed by the Hon’ble High Court of Himachal Pradesh in CWP No. 656 of 2019 may kindly be quashed and set aside. (iv) That the re-test by respondents No. 1 & 2 on 26.12.2018 in respect of physical standards of those candidates who had not passed this test initially conducted on 3.10.2018 may kindly be quashed and set aside. (v) The respondent No. 1 and 2 may kindly be directed to conclude the selection process on the basis of result declare at annexure P-5 dated 10.12.2018 and take it to its logical conclusion.” 2. Himachal Pradesh Public Service Commission (Respondent No. 2) invited applications from eligible candidates for recruitment to the post of Assistant Conservator of Forests, Class-I (Gazetted) (HPFS) in the department of Forests, Himachal Pradesh vide advertisement No. 7 of 2017, dated 12.7.2017. The candidates were mandatorily required to undergo and qualify screening test, written test, physical standards and walking test before being called for interview. 3. The prescribed physical standards were part of essential qualifications. For males the requirement of chest measurement was 79 Cms without expansion and 84 Cms with expansion and for females it was 74 Cms without expansion and 79 Cms with expansion. 4. The case as projected by the petitioners is that they had qualified the physical standards, whereas private respondents had failed in chest expansion to the requisite extent. In total, six candidates including the petitioners were successful and were called for interview on 20.12.2018 by respondent No. 2. 5. Private respondents having failed to finally qualify for interview, approached Himachal Pradesh Administrative Tribunal by way of Original Application No. 7322 of 2018. On 14.12.2018, an interim order in following terms was passed by learned Tribunal:- “4. In total, six candidates including the petitioners were successful and were called for interview on 20.12.2018 by respondent No. 2. 5. Private respondents having failed to finally qualify for interview, approached Himachal Pradesh Administrative Tribunal by way of Original Application No. 7322 of 2018. On 14.12.2018, an interim order in following terms was passed by learned Tribunal:- “4. In the facts and circumstances, before the respondents are called to enter upon replies, it shall be expedient and in the interest of justice the Short replies/instructions are filed on behalf of the respondents. Ordered accordingly. 5. However, in the facts and circumstances and documents filed alongwith the original application, there shall be a direction to respondent No. 1-Public Service Commission to permit the applicants to appear in the interview for the post of Assistant Conservator of Forests (ACF) fixed for 20th December, 2018, provisionally. However, their result shall not be declared and produced before this Tribunal in a sealed cover on the next date of hearing. 6. At the same time, the respondents/competent authority(s) shall be well within their right to put the applicants to fresh physical test for measurement of their chests with and without expansion ……………” 6. The OA No. 7322 of 2018 was finally disposed of by learned Tribunal on 4.1.2019 and an order to the following effects was passed:- “In terms of the previous order dated 14.12.2018, particularly para-6 thereof, the learned Standing Counsel for respondent No. 1-Public Service Commission has filed result of fresh physical test for measurement of the applicants, inter-alia, of their chest with and without expansion in a sealed cover, which is allowed to be opened, according to which, all the applicants alongwith four others have come up to the mark and, thus, fulfill the eligibility criteria on that parameter. 2. The result after resealing is returned to the aforesaid official of respondent No. 1-Public Service Commission. 3. In view of the above, the original application is disposed of accordingly in terms of the aforesaid result. 4. Respondent No. 1-Public Service Commission shall be free to declare result of the process under reference.” 7. In pursuance to the directions of learned Tribunal, the private respondents were submitted to re-test on Chest expansion and all of them were declared qualified. They were interviewed besides petitioners and respondents No. 3,4,6 and 8 were selected against the categories, in which petitioners were competing. 8. In pursuance to the directions of learned Tribunal, the private respondents were submitted to re-test on Chest expansion and all of them were declared qualified. They were interviewed besides petitioners and respondents No. 3,4,6 and 8 were selected against the categories, in which petitioners were competing. 8. Petitioners approached this Court by way of CWP No. 656 of 2019, inter alia, assailing the directions issued by learned Tribunal in OA No. 7322 of 2018 and consequent selection of private respondents. A Division Bench of this Court disposed of CWP No. 656 of 2019 in following terms:- “The controversy here pertains to the eligibility of respondents No. 3 to 8 for the post of Assistant Conservator of Forests, with reference to the requirement of minimum chest measurements (expended and unexpended). 2. Learned Senior counsel for the private respondents, on instructions, states that they have no objection if their fresh chest measurements are conducted by the authorities of Indira Gandhi Medical College, Shimla. Mr. D.K. Khanna, learned counsel representing respondent No.2-Himachal Pradesh Public Service Commission also does not have any objection to this offer. The petitioners are willing to accept the offer made on behalf of respondents No.3, 4, 6 and 8. 3. In view of the broad consensus arrived at between the parties, the writ petition is disposed of with a direction to the Principal, Indira Gandhi Medical College, Shimla to constitute a Medical Board and carry out the chest measurements of respondents No. 3 to 8 (expended or unexpended) or any other selected candidate even if he is not a party respondent except the female candidates, if any. Similarly, the abovestated Medical Board shall carry out chest measurements of the petitioners (expended and unexpended) as well. The petitioners and the private respondents shall be at liberty to witness the process of chest measurements to be carried out by the Medical Board. 4. The Principal of Indira Gandhi Medical College, Shimla, may associate a police Officer from the police Department not below the rank of Dy.S.P., to assist the Medical Board for carrying the chest measurements. The Director General of Police, Himachal Pradesh, is directed to depute an Officer not below the rank of Dy.S.P for the aforesaid purpose. 4. The Principal of Indira Gandhi Medical College, Shimla, may associate a police Officer from the police Department not below the rank of Dy.S.P., to assist the Medical Board for carrying the chest measurements. The Director General of Police, Himachal Pradesh, is directed to depute an Officer not below the rank of Dy.S.P for the aforesaid purpose. The measurements will be carried out within one week and an intimation to this effect may be sent to the petitioners and the private respondents on their respective mobile numbers, which they are directed to handover to the learned Additional Advocate General during the course of the day for onwards transmission to the Principal of the Medical College. Pending miscellaneous applications, if any, also stand disposed of accordingly.” 9. The petitioners sought review of order dated 2.5.2019, passed in CWP No. 656 of 2019 by way of Review Petition No. 73 of 2019, however, they remained unsuccessful and Review Petition No. 73 of 2019 was disposed of by a Division Bench of this Court on 12.7.2019 in following terms : “The order under review is an order passed on consent. Therefore, there is no scope for review, hence, dismissed.” 10. Petitioners preferred a SLP before Hon’ble Supreme Court seeking to assail order dated 12.7.2019, passed in Review Petition No. 73 of 2019, but again remained unsuccessful. The Special Leave was declined by Hon’ble Supreme Court vide order dated 18.10.2019. 11. Petitioners, have now again approached this Court by way of instant petition. Their main platform of challenge is that the rules governing the selection process by respondent No. 2 nowhere provided for re-test on physical standards. Petitioner further contend that by allowing the private respondents to undergo re-test on physical standards rights of petitioners have been prejudiced and the candidates who otherwise could not qualify the essential requirements of physical standards, w10ere finally selected. 12. I have heard learned counsel for the parties and gone through the record. 13. The private respondents were allowed to take re-test on chest expansion firstly under the order dated 14.12.2018 passed by learned Tribunal in OA No. 7322 of 2018 and thereafter in compliance to the consent order passed by a Division Bench of this Court in CWP No. 656 of 2019. 14. 13. The private respondents were allowed to take re-test on chest expansion firstly under the order dated 14.12.2018 passed by learned Tribunal in OA No. 7322 of 2018 and thereafter in compliance to the consent order passed by a Division Bench of this Court in CWP No. 656 of 2019. 14. The Division Bench of this Court while disposing of CWP No. 656 of 2019 had specifically recorded that petitioners were willing to accept the offer made on behalf of the private respondents, whereby they had offered themselves for fresh chest measurement to be conducted by authorities of Indira Gandhi Medical College, Shimla. Accordingly, the order was passed taking into consideration the broad consensus arrived at between the parties. Directions were then issued to the Principal, IGMC, Shimla to constitute a Medical Board and carry out the chest measurements of respondents No. 3 to 8 therein or any other selected candidate. Similarly, directions were issued for carrying out chest measurements of the petitioners as well. All the contesting private parties were given opportunity to witness the process of chest measurements to be carried out by the Medical Board. 15. Subsequent to passing of aforesaid order in CWP No. 656 of 2019, petitioners had sought review of the said order. The review petition of the petitioners was dismissed only on the ground that the order sought to be reviewed was an order passed on consent of the parties. Hon’ble Supreme Court also declined to grant Special Leave to the petitioners vide orders dated 18.10.2019 and 6.1.2020. 16. Thus, indisputably the order dated 2.5.2019 was passed by a Division Bench of this Court in CWP No. 656 of 2019 on the basis of the consent of parties. The petitioners were consenting parties and cannot be allowed to resile from such consent especially after dismissal of their review petition and also failure to seek special leave to appeal from Hon’ble Supreme Court. The aforesaid order dated 2.5.2019 on one hand validated the orders passed by learned Tribunal, on the other, the parties were afforded another opportunity to submit themselves to re-test of chest expansion. That being so, it does not lie in the mouth of the petitioners now to say that the re-test of expansion was in violation of rules. Having given their consent to passing of such an order, the petitioners cannot be allowed to reopen the issue. 17. That being so, it does not lie in the mouth of the petitioners now to say that the re-test of expansion was in violation of rules. Having given their consent to passing of such an order, the petitioners cannot be allowed to reopen the issue. 17. In view of above discussion, I find no merit in the petition and the same is accordingly dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.