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2025 DIGILAW 857 (HP)

Dev Raj v. State of H. P.

2025-04-30

JYOTSNA REWAL DUA

body2025
JUDGMENT : (Jyotsna Rewal Dua, J.) In their previous writ petition, petitioners had prayed for treating their diplomas as valid and for their appointments from the date their juniors were appointed. The appointments of the petitioner's juniors, made during the pendency of the previous writ petition, was subject to the outcome of that petition. The writ petition was allowed with direction to respondents to consider the cases of petitioners by treating their diplomas as valid subject to fulfillment of other codal formalities. Respondents implemented the decision eight months later and appointed the petitioners Whether reporters of Local Papers may be allowed to see the judgment? Yes from prospective date. Petitioners seek appointment from the date their juniors were appointed, whereas according to the respondents, petitioners’ claim is barred by res judicata and Order 2 Rule 2 of Code of Civil Procedure, hence the dispute. 2. Background. 2(i). The petitioners had passed two years diploma in Ayurvedic Pharmacy from different colleges in State of Bihar during the years 1995 to 2000. 2(ii). The respondents-Department of Ayurveda initiated selection process for filling up vacant posts of Ayurvedic Pharmacist (re-designated as Ayurvedic Pharmacy Officer) on batch-wise and contract basis. Petitioners were also issued call letters by the respondents-Department for verification of their documents for the posts of Ayurvedic Pharmacist to be filled-up by the respondents on batch-wise & contract basis. The petitioners were directed to appear in the Directorate of respondent-Department on 23.08.2021. 2(iii). After verification of the documents, the respondents displayed a list prepared in order of seniority of the batchwise candidates. The petitioners being senior in batch figured at the top of the list for recruitment to the post of Ayurvedic Pharmacist (Batchwise & Contract basis). They were, however, not issued the appointment letters. The respondents raised an issue that the diplomas in Ayurvedic Pharmacy obtained by the petitioners were not from recognized Institutes. Feeling aggrieved, the petitioners instituted CWP No.7724 of 2021 (Dev Raj & Ors. They were, however, not issued the appointment letters. The respondents raised an issue that the diplomas in Ayurvedic Pharmacy obtained by the petitioners were not from recognized Institutes. Feeling aggrieved, the petitioners instituted CWP No.7724 of 2021 (Dev Raj & Ors. vs. State of Himachal Pradesh & Anr.) seeking following substantive relief: - “i. That appropriate writ, order or direction may very kindly be issued directing the respondents to consider and offer appointment to the petitioners on batch-wise basis for the post of Ayurvedic Pharmacist from the same date, when the persons junior on batch-wise basis will be offered appointments, in the interest of law and justice with all consequential benefits of pay, arrear, seniority etc.” 2(iv). The petitioners had also moved an application bearing CMP No.14541 of 2021 in CWP No.7724 of 2021 for grant of interim relief. The said application was disposed of on 07.12.2021 with following order:- “Heard. The appointment to the post in question shall abide by the further orders/ final outcome of the writ petition. The application stands disposed of.” Vide office order 26.02.2022 passed during the pendency of CWP No.7724 of 2021, the respondents offered appointment to the selected candidates as Ayurvedic Pharmacist on batchwise & contract basis. The order dated 26.02.2022 (Annexure P-3) was with the rider that the appointment will be subject to the final outcome of CWP No.7724 of 2021, which at that time was pending adjudication. 2(v). The writ petition was allowed on 15.09.2022. The diplomas obtained by the petitioners from Bihar State Faculty of Ayurvedic and Unani System prior to 2003 were held to be valid. Respondent No.2, i.e. Director of Ayurveda, was directed to consider the candidature of the petitioners for the post of Ayurvedic Pharmacists, if otherwise found eligible. The respondents accepted the aforesaid decision. However, steps to implement the decision were taken more than eight months after the pronouncement of the judgment. Office order was issued on 04.05.2023 (Annexure P-5) offering appointment to the petitioners to the post of Ayurvedic Pharmacy Officer on batchwise & contract basis. The aforesaid office order has given genesis to the instant writ petition wherein the petitioners have prayed for following substantive relief:- “(i). Office order was issued on 04.05.2023 (Annexure P-5) offering appointment to the petitioners to the post of Ayurvedic Pharmacy Officer on batchwise & contract basis. The aforesaid office order has given genesis to the instant writ petition wherein the petitioners have prayed for following substantive relief:- “(i). That an appropriate writ, order or directions may kindly be issued, thereby directing the respondents to modify the office order dated 04.05.2023, Annexure P-5, to the extent that the petitioners may kindly be ordered to be appointed from the same date when their juniors were appointed, i.e. 26.02.2022 with all consequential benefits, like pay, arrears, seniority etc. along with interest @ 9% p.a.” 3. Learned Senior Counsel for the petitioners submits that petitioners were entitled for their appointment from the same date when their juniors were appointed, i.e. 26.02.2022. The delay in the appointment of the petitioners was attributable to the respondents. Even though the diplomas obtained by the petitioners were recognized yet the respondents did not recognize their diplomas compelling them to institute CWP No.7724 of 2021. Pursuant to the interim order passed in CWP No.7724 of 2021, the appointments made by the respondents of the juniors of the petitioners were made subject to the final outcome of CWP No.7724 of 2021. CWP No.7724 of 2021 was allowed on 15.09.2024. The diplomas obtained by the petitioners were held as valid. Respondent No.2 was directed to consider the candidature of the petitioners for the post of Ayurvedic Pharmacists, if otherwise found eligible. The respondents took more than eight months to implement the judgment and then appointed the petitioners under office order dated 04.05.2023. Petitioners are to be appointed w.e.f. the date their juniors were appointed, i.e. 26.02.2022. Learned Deputy Advocate General submitted that petitioners’ prayer is barred by principles of res judicata and Order 2 Rule 2 of Code of Civil Procedure. In CWP No.7724 of 2021, the petitioners had prayed for directions not only to offer them appointment on batchwise basis for the post of Ayurvedic Pharmacists but also from the date when the persons junior to them were offered appointment on batchwise basis. The relief as prayed for by the petitioners was not granted to them in the decision rendered in aforesaid writ petition on 15.09.2022, therefore, at this stage, petitioners cannot rake up the same issue. The relief as prayed for by the petitioners was not granted to them in the decision rendered in aforesaid writ petition on 15.09.2022, therefore, at this stage, petitioners cannot rake up the same issue. Learned Deputy Advocate General also submitted that grant of the relief to the petitioners as prayed for by them would unsettle the settled position of the entire batch. Therefore, the petitioners’ plea at this belated stage is not maintainable. 4. Heard learned counsel for the parties and considered the case file. 4(i). Respondents have not disputed that the petitioners figured at the top of the list prepared by them on the basis of verification of documents of the participating candidates in the year 2021 for appointment to the posts of Ayurvedic Pharmacists (Contract basis). It is also an admitted position that the aforesaid posts were to be filled up on batchwise basis. The petitioners were seniors to those who were appointed by the respondents on 26.02.2022. The petitioners though were senior in the list prepared by the respondents, yet on account of alleged non-recognition of their diplomas, they were not being issued the appointment orders. Feeling aggrieved the petitioners had instituted CWP No.7724 of 2021. The writ petition was instituted in December, 2021. At the time of filing of the writ petition and at the time, it came for first listing before the Court, the respondents had not issued appointment orders to the selected candidates. It was in that background that CMP No.14541 of 2021 moved by the petitioners in CWP No.7724 of 2021 was disposed of on 07.12.2021 with the order that appointment to the posts in question shall abide by the further orders/ final outcome of the writ petition. This was so mentioned by the respondents in the office order dated 26.02.2022 issued by them giving appointment to the selected candidates. CWP No.7724 of 2021 was allowed on 15.09.2022. Though the petitioners had claimed in their writ petition appointment from the date when their juniors were appointed, however, that cause of action could not be pressed by them in the writ petition as the case of the petitioners for their appointment on batchwise basis on the basis of their diplomas, which were held to be valid by this Court, was yet to be considered by the respondents, subject to fulfillment of other codal formalities, as directed in the judgment. The respondents considered the cases of the petitioners for appointment to the post of Ayurvedic Pharmacy Officers and found them otherwise also eligible for the posts. The judgment dated 15.09.2022 which should have been implemented within a reasonable period, was actually given effect to more than eight months later. The petitioners were appointed under office order dated 04.05.2023. Since the office order did not construe the appointments of the petitioners w.e.f. the date their juniors were appointed on 26.02.2022, this gave a fresh cause of action to the petitioners for instituting the present writ petition. Therefore, the contentions of the respondents-State that the relief now claimed by the petitioners is barred by res judicata and Order 2 Rule 2 CPC, is not tenable. The grievance of the petitioners in their previous writ petition was limited to recognition of their diplomas. The decision in the previous petition cannot come in the way of the petitioners for claiming appointment from the date their juniors were appointed. In this regard it would be appropriate to refer Bhima Ram vs. State of H.P. & Ors., WP No.3616 of 2020 decided on 10.03.2025 : - “18. Another objection of the respondents that the petition is barred by principle of constructive res judicata and Order 2, Rule 2 of the CPC also cannot be sustained. The petitioner had retired in July, 2010 without benefit of conferment of work charge status or regularization in terms of the policy adopted by the State Government. Petitioner had approached the Court in the year 2014 for grant of benefit of work charge/regularization. His petition was not decided on merits and directions were issued to the competent authority to consider the case of the petitioner. It was on such consideration that the benefit of work charge and regularization was granted to the petitioner. Once the petitioner got such benefit, he immediately made a claim for pensionary benefits in the year 2015 which was finally rejected by the respondents in the year 2019. Thus, the petition cannot be said to suffer from principle of constructive res judicata or Order 2, Rule 2 of the CPC as the petitioner had sought the relief of pensionary benefits at the first available opportunity.” 4(ii). The second objection taken by the respondents that the relief as prayed for by the petitioners, at this stage, would unsettle the settled position of the entire batch, is also misconceived. The second objection taken by the respondents that the relief as prayed for by the petitioners, at this stage, would unsettle the settled position of the entire batch, is also misconceived. The appointments of the juniors of the petitioners under office order dated 26.02.2022 was subject to final outcome of CWP No.7724 of 2021. As noticed earlier, CWP No.7724 of 2021 was disposed of on 15.09.2022 with directions to the respondents to consider the cases of the petitioners by treating their diplomas as valid. It was for the respondents to consider the cases of the petitioners. Merely because the respondents considered the cases of the petitioners more than eight months after the pronouncement of the judgment and did not construe their appointment w.e.f. 26.02.2022 would not strengthen their plea that treating the appointments of the petitioners w.e.f. 26.02.2022 would unsettle the settled position of the batch. The batch remains the same, the petitioners were senior in the batch, however, because of wrong action of the respondents, they were not given appointments at the relevant time. Petitioners are entitled to be considered to have been appointed as Ayurvedic Pharmacy Officer from the same date on which their juniors were appointed, i.e. 26.02.2022. 5. In view of above, this writ petition is allowed. Respondents are directed to construe the appointments of the petitioners on the post of Ayurvedic Pharmacists (re- designated as Ayurvedic Pharmacy Officer) w.e.f. 26.02.2022, i.e. the date when their juniors were appointed as such. This shall, however, be on notional basis till their actual appointments as such. The period of service on notional basis w.e.f. 26.02.2022 till their actual joining shall count towards due service benefits, including pay fixation and increments. Pending miscellaneous application(s), if any, to also stand disposed of.