Himachal Pradesh High Court
Between vs Triloki Nath Khosa 1974 (1) on 24 August, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 24th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN,
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 1706 OF 2020
Between:-
MRS. RUCHI KUMARI AGED ABOUT 32 YEARS
W/O SH. NARENDER KUMAR
R/O VILLAGE GHORI (RIHRI), P.O.
SMAILA, TEHSIL SARKAGHAT,
DISTRICT MANDI, H.P. 175034
OCCUPATION: UNEMPLOYED.
r ....PETITIONER
(BY SH. RAJESH K. PARMAR, ADVOCATE)
AND
1. THE HIGH COURT OF
HIMACHAL PRADESH THROUGH
REGISTRAR GENERAL,
THE MALL, REVENSWOOD,
SHIMLA (H.P.) PIN 171 001.
2. THE STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (HOME), H.P.
SECRETARIAT, SHIMLA (H.P.)
PIN 171001.
3. SH. HIMANSHU THAKUR
(SYSTEM OFFICER)
OFFICE OF THE DISTRICT &
SESSIONS JUDGE, SOLAN,
DISTRICT COURTS, SOLAN, H.P.
4. SH. SANT RAM
(SYSTEM OFFICER)
OFFICE OF THE DISTRICT &
SESSIONS JUDGE, MANDI
DISTRICT COURTS, MANDI, H.P.
5. SH. MANORANJAN VERMA
(SYSTEM OFFICER)
OFFICE OF THE DISTRICT &
::: Downloaded on - 31/01/2022 22:56:14 :::CIS
2
SESSIONS JUDGE, SHIMLA
JCC AT CHAKKAR, SHIMLA, H.P.
PIN 171 005.
.
6. SH. MOHIT KUMAR
(SYSTEM OFFICER)
OFFICE OF THE DISTRICT &
SESSIONS JUDGE, KULLU
DISTRICT COURTS KULLU, H.P.
..RESPONDENTS
(MR. SURINDER VERMA, ADVOCATE FOR R-1
AND MR. VINOD THAKUR, MR. SHIV PAL
MANHANS, ADDITIONAL ADVOCATE GENERALS,
MR. J.S. GULERIA AND MR. BHUPINDER THAKUR,
DEPUTY ADVOCATE GENERALS FOR R-2)
RESERVED ON: 10.08.2021
DECIDED ON: 24.08.2021
____________________________________________________________________________
This petition coming on for orders this day, Hon'ble Mr. Justice
Satyen Vaidya, passed the following:
ORDER
By way of instant petition, the petitioner has prayed for the following
substantive reliefs:-
a) by way of issuance of writ of certiorari, "Notification No.
HHC/Rules/Tech.Man.(Comp.)1/2014 dated 1st October, 2016
which is violative of the Constitution of India and clear
disobedience of the judgments passed/law laid down by the
Hon'ble Court and affirmed by Hon'ble Apex Court of India, may
very kindly be quashed and set aside;
b) by way of issuance of writ of certiorari, Advertisement
No.HHC/Estt.7(50)/2014-2978-81, dated 23.01.2019, and
impugned recruitment process order based on the impugned
Advertisement may very kindly be quashed and set aside
because same is violative of the right of equality and an attempt
to promote back door entry;
c) by way of writ of mandamus, respondents No. 1 and 2 may very
kindly be directed to issue fresh Advertisement and initiate fresh
recruitment process by availing the equal opportunity to the
.
petitioner an similar situated people;"
BRIEF FACTUAL MATRIX
3. Hon'ble Supreme Court, with a view to computerize the Indian
Judiciary, constituted e-committee and on its recommendations framed the
National Policy on 01.08.2005. DOEACC for short 'society' was made the
nodal agency. As per policy decision, cadre of trouble shooters (Technical
Manpower) for different Courts was to be created and in terms of National
Policy, posts were to be created for conversion of Courts into e-Courts.
4. On account of non-availability of Society in the State of Himachal
Pradesh, the Department of Information and Technology, vide communication
dated 02.09.2008 empaneled M/s New Horizons India Limited as the agency
for providing technical manpower in the High Court and District Courts in
Himachal Pradesh. In pursuance to above noted process, certain persons
were selected as System Officers. Undisputedly, the persons so selected as
System Officers were on the rolls of M/s New Horizons India Limited. They
were not appointed by the High Court. The terms and conditions of the
appointment of such persons were absolutely clear whereby their
appointments were purely on temporary basis against the assigned project.
Their services were liable to be terminated at 15 days' notice in the event of
abandonment/dis-continuance of the project.
5, In the meanwhile, High Court had framed High Court of Himachal
Pradesh Members of Technical Manpower (Computers) (Appointment,
Conditions of Service and Conduct) Rules, 2014 (for short "2014 Rules") in
exercise of powers under Article 229(2) of the Constitution of India. The 2014
rules prescribed mode of appointment and qualification etc. for the post of
Assistant Programmer as under:
.
Sr. No. Nomenclature of the Pay scale and Mode of Age for direct Qualification
post Grade pay Appointment appointment
1. 2. 3. 4. 5. 6.
Assistant Rs.10300- By direct 22 to 45 years to a). B.E/B.Tech in
Programmer 34800+3800/- recruitment from be seen on the Computers or I.T. or
Grade pay the eligible last date of equivalent technical
persons as per receipt of qualification at least in
column Nos. 5 applications. second division.
and 6. Or
b). B.Sc/B.A/B.Com in
First Division with post
Graduate Diploma in
Computer application/I. T
with two (2) years
experience as System
Assistant or Asstt.
Programmer on higher or
equivalent post.
r Or
c). (xxxx)
or
d). Matriculation with 3
years Diploma in
Computers from any
recognized Polytechnic
College or equivalent
technical qualification from
the recognized
Institution/Board/University
with four (4) years
experience as at (b) above.
6. Some of the System Officers, working on rolls of New Horizons India
Limited, approached this Court by way of CWP Nos. 745 and 1026 of 2015,
with a prayer to grant them regularization of their services or in alternative to
grant them preferential right of consideration for the post of Assistant
Programmer by making suitable amendment in the recruitment Rules. High
Court contested these petitions and the petitions came to be dismissed by a
Co-ordinate Bench of this Court vide common judgment dated 06.05.2016.
While dismissing the petitions, it was held as under:-
"27. The appointment of the petitioners was not made by the
High Court or any of the Subordinate Court(s) and that apart,
their conditions of appointment clearly envisaged cessation of
.
employment at the end of fixed tenure. On the contrary, the
appointment of the petitioners was made either by the Society
or the Institute or M/s New Horizons India Ltd. and the High
Court has simply decided to extend the services of the out
sourced technical manpower till 31.3.2015.
28. Moreover, it was in terms of the comprehensive
guidelines framed on 6.6.2014 that the petitioners themselves
gave undertakings to abide by the guidelines wherein in para 7
it was clearly stipulated that the selection was purely on
contractual in nature and would not confer any right or
permanent absorption.
Thus, there was no occasion whereby the petitioners
could legitimately have expected that their services would be
taken over or regularized or relaxation of any kind would be
extended to them at the time when the posts would be filled up
on regular basis by the High Court.
Right of regularisation:
29. Adverting to the second submission regarding right of
regularisation of the services of the petitioners, as noticed
earlier that the appointment of the petitioners has not been
made by the Subordinate or the High Court, but has been made
by the Society or the Institute or M/s New Horizons India Ltd.
Apart from the above, it would also be noticed that the
appointments of the petitioners were contrary to the provisions
of Articles 14 and 16 of the Constitution. No doubt, the
petitioners were appointed pursuant to advertisements issued in
the newspaper but that in itself cannot be a sufficient
compliance of Articles 14 and 16 of the Constitution of India.
31. It would be evident from the aforesaid advertisement that
it was the Society and the Institute and not the Courts which had
issued the advertisements and therefore the appointments that
.
were to be made on contract basis were to be made by and for
the authorities issuing advertisements themselves and not by or
for the Court. It was only the staff appointed on contract basis
by these authorities that in turn was to be deployed in the Court.
32. Further, the terms and conditions as stipulated in the
advertisement whereby appointments that too on contract basis
for being deployed in various Courts obviously dissociated the
best talent from coming forward and applying for the post in
question because the posts never pertained to the Courts but
were for and on behalf of the Society or the Institute. In such
circumstances, the mere continuance in service or extending the
period of appointment of the petitioners, that too, by the service
provider cannot in itself confer any right upon them for
regularisation or else this would amount to perpetuating an
illegality.
7. The above noted judgment though attained finality, yet High Court
carried 2nd amendment to the 2014 Rules on 1.10.2016. The mode and
qualifications etc. for the post of Assistant Programmer, after amendment,
read as under:
Sr. No. Nomenclature of the Pay scale and Mode of Age for direct Qualification
post Grade pay Appointment appointment
1. 2. 3. 4. 5. 6.
Assistant Rs.10300- (a) By selection 22 to 45 years to a). B.E/B.Tech in
Programmer 34800+3800/- on the basis of be seen on the Computers or I.T. or
Grade pay limited last date of equivalent technical
competitive receipt of qualification at least in
examination applications. second division.
from amongst Or
the System b). B.Sc/B.A/B.Com in
Officers First Division with post
working under Graduate Diploma in
the e-Courts Computer application/I. T
Project and with two (2) years
continued experience as System
thereafter in Assistant or Asstt.
High Court of Programmer on higher or
H.P/Courts equivalent post.
subordinate to Or
the High Court c). (xxxx)
.
of H.P. having or
minimum 3 d). Matriculation with 3
years experience years Diploma in
as System Computers from any
Officers. recognized Polytechnic
(b) Failing College or equivalent
which by direct technical qualification from
recruitment from the recognized
the eligible Institution/Board/University
persons as per with four (4) years
column Nos. 5 experience as at (b) above.
and 6.
8.
Perusal of amended Rules reveal that the first right of selection, for the
post of Assistant Programmer, was provided to the persons having minimum
three years experience as System Officers under the e-Courts project of the
High Court. It was only in the event of failure to select a candidate for the
post of Assistant Programmer through this process that the mode of direct
recruitment from the eligible persons was to be adopted.
9. Based on 2nd amendment to 2014 Rules, High Court, invited
applications for the post of Assistant Programmer vide circular Circular No.
HHC/Estt.7(50)/2014-2978-81, dated 23.01.2019
PETITIONER'S GRIEVANCE
10. The grievance of the petitioner is that the 2 nd amendment dated
1.10.2016 to the 2014 Rules is violative of Articles 14 and 16 of the
Constitution of India and thus, based on such amendment, the selection
process for the post of Assistant Programmer undertaken by the High Court in
pursuance to Circular No. HHC/Estt.7(50)/2014-2978-81, dated 23.01.2019,
denying her equal opportunity of participation, is wrong and illegal.
11. Petitioner has laid challenge to the aforesaid amendment and
consequent recruitment process by alleging the same to be in violation of the
fundamental rights provided to her under Article 14 and 16 of the
Constitution of India. According to the petitioner, the System Officers
.
working under the e-courts project having three years' experience, as such,
cannot form a special class. There is no justifiable object or rationale behind
such classification. Persons with similar or higher qualifications and equipped
with better experience have been ignored. There is no nexus between the
formation of such classification and object sought to be achieved, therefore,
the classification so made is unreasonable.
RESPONDENT'S RESPONSE
12. In response, High Court has contested the stand of the petitioner on
the ground that the challenge laid by the petitioner to the 2 nd amendment to
2014 Rules is highly belated. It has been submitted that the selection
process was initiated strictly in accordance with the amended Rules. Details
with respect to the procedure adopted for undertaking the selection process
have been averred. What is missing in the reply of High Court is the
explanation of the reasons for the classification so made by way of 2 nd
amendment to 2014 Rules. The silence of High Court is conspicuous on this
aspect of the matter which goes to the root of issues involved in the present
lis.
13. Respondent No.2 in its reply has simply stated that it has nothing
substantive to state as the matter concerned High Court. Respondents No. 3
to 6 did not chose to contest the petition and have been proceeded against
ex-parte.
ANALYSIS
14. Article 16 of the Constitution of India guarantees the fundamental right
in favour of the citizens of India to have equality of opportunity in matters
relating to employment or appointment to any office under the State. There is
no scope to deviate save and except the inherent prescriptions of the
.
provision itself. Additionally, any classification formed within the citizens of
India for the purposes of any employment or appointment to any office under
the State, the same has to qualify the test of reasonableness and the
classification so made must have a nexus with the object sought to be
achieved.
15. In State of Jammu and Kashmir vs. Triloki Nath Khosa 1974 (1)
SCC 19, Constitutional Bench of the Supreme Court held as under:-
"29. his argument, as presented, is attractive but it assumes in
the court a right of scrutiny somewhat wider than is generally
recognized. Article 16 of the Constitution which ensures to all
citizens equality of opportunity in matters relating to
employment is but an instance or incident of the guarantee of
equality contained in article 14. The concept of equal
opportunity undoubtedly permeates the whole spectrum of an
individual's employment from appointment through promotion
and termination to the payment of gratuity and pension. But the
concept of equality has an inherent limitation arising from the
very nature of the constitutional guarantee. Equality is for
equals. That is to say that those who are similarly
circumstanced are entitled to an equal treatment.
31. Classification, however, is fraught with the danger that it
may produce artificial inequalities and therefore, the right to
classify is hedged in with salient restraints; or else, the
guarantee of equality will be submerged in class legislation
masquerading as laws meant to govern well-marked classes
characterized by different and distinct attainments.
Classification, therefore, must be truly founded on substantial
differences which distinguish persons grouped together from
those left out of the group and such differential attributes must
bear a just and rational relation to the object sought to be
.
achieved."
16. The amendment in the Rules, carried by High Court, vide 2 nd
amendment dated 01.10.2016 cannot stand the scrutiny of law as it violates
Articles 14 and 16 of the Constitution of India. The classification so made vide
amendment supra cannot be said to be reasonable and also cannot be said to
have been made to achieve any legally sustainable objective. No reason
much less any plausible reason has come forth to justify such act. Not even a
single word has been uttered on behalf of the High Court justifying any
reason which might have weighed with it for creating a special class. Even
otherwise also we have not been able to perceive any single reason for
making such classification. To consider that the system officers working
under e-courts had gained special experience will only be a fallacy, because
firstly, there is nothing on record to suggest such hypothesis and secondly it
cannot be assumed that except for these persons others would have lacked
in such experience.
17. Once the persons working under a specific project were held to have
no right of preferential treatment in the appointment to the post of Assistant
Programmer, It was highly unreasonable and arbitrary on the part of the High
Court to have recognized such preferential right in their favour by carrying
impugned amendment to 2014 Rules. The claims of the System Officers
working with the High Court under e-courts project, as noted above, for
regularization and for preferential right of consideration for the post of
Assistant Programmer were already rejected by a judicial pronouncement of
this Court. Respondents No. 3 to 6 herein were also the petitioners in the
above noted writ petitions decided by this Court. Still, the High Court
volunteered to amend the 2014 Rules which has the effect of undoing the
.
effect of the judicial pronouncement on the issue.
18. The scope to undo effect of judicial pronouncement by legislative
action has been discussed by Hon'ble Apex Court as under in Indian
Aluminium Co. and Others Vs State of Kerala and others (1996) 7 SCC
637:-
"36. The validity of the validating Act is to be judged by the
following tests: [i] whether the legislation enacting the validating
Act has competence over the subject matter; [ii] whether by
validation, the legislature has removed the-defect which the court
had found in the previous law [iii] whether the validating law is
inconsistent with the provisions of Chapter III of the Constitution.
If tests are satisfied, the Act can confer jurisdiction upon the Court
with retrospective effect and validate the past transactions which
were declared to be unconstitutional. The legislature cannot
assume power of adjudicating a case by virtue of its enactment of
the law without leaving it to the judiciary to decide it with
reference to the law in force. The legislature also is incompetent
to overrule the decision of a Court without properly removing the
base on which the judgment is founded."
19. Hon'ble Supreme has reiterated the same view in Union of
India and others Vs. Exide Industries Ltd and another, (2020) 5
SCC 274:-
37. It is no doubt true that the legislature cannot sit over a
judgment of this Court or so to speak overrule it. There cannot be
any declaration of invalidating a judgment of the Court without
altering the legal basis of the judgment as a judgment is
delivered with strict regard to the enactment as applicable at the
relevant time. However, once the enactment itself stands
corrected, the basic cause of adjudication stands altered and
necessary effect follows the same. A legislative body is not
.
supposed to be in possession of a heavenly wisdom so as to
contemplate all possible exigencies of their enactment. As and
when the legislature decides to solve a problem, it has multiple
solutions on the table. At this stage, the Parliament exercises its
legislative wisdom to shortlist the most desirable solution and
enacts a law to that effect. It is in the nature of a 'trial and error'
exercise and we must note that a lawmaking body, particularly in
statutes of fiscal nature, is duly empowered to undertake such an
exercise as long as the concern of legislative competence does
not come into doubt. Upon the law coming into force, it becomes
operative in the public domain and opens itself to any review
under Part III as and when it is found to be plagued with
infirmities. Upon being invalidated by the Court, the legislature is
free to diagnose such law and alter the invalid elements thereof.
In doing so, the legislature is not declaring the opinion of the
Court to be invalid."
20. Thus, It is well settled that the declaration made by a judgment of
Constitutional Court can be undone by a legislative or executive action only
in permissive circumstances. In the case in hand, no such special
circumstances have been carved out and, therefore, the act of the High Court
in amending the Rules in the manner as detailed above cannot be
countenanced.
21. The objection of respondent No.1 to the effect that challenge laid by
the petitioner to the amendment carried in 2016 and also to the recruitment
process initiated in January, 2019 is highly belated and thus suffers from the
vice of delay and laches, deserves to be rejected. It is clearly borne from the
record, rather it is admitted by the High Court that there was no need to
advertise the posts of Assistant Programmer as the preferential right of
selection, as per amended Rules, was to the System Officers working with the
High Court. It was not published even on the website of the High Court. In
.
absence of such publication, it cannot be understood as to how the petitioner
could have gained the knowledge of the recruitment process initiated in
January, 2019 and also of the amended Rules on the basis of which such
process was undertaken. There is nothing on record to discredit the version
of the petitioner that it was only in the month of March, 2020 that the
petitioner noticed result of written examination published by High Court on its
website in pursuance to the selection process undertaken on the basis of
Circular No. HHC/Estt.7(50)/2014-2978-81, dated 23.01.2019. That being so,
we have no hesitation to hold that the petitioner acquired the cause of action
to challenge the impugned amendment to the Rules as well as recruitment
process only when it came to her knowledge.
22. It is also well settled that absence of proper publicity to the proposed
recruitments to public posts itself amounts to violation of equal opportunity in
public employment. Reference can be made to judgment passed in Union
Public Service Commission vs Girish Jayanti Lal Vaghela (2006) 2 SCC
482, wherein it has been held as under:-
"10. Article 16 which finds place in Part III of the Constitution
relating to fundamental rights provides that there shall be
equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State. The
main object of Article 16 is to create a constitutional right to
equality of opportunity and employment in public offices. The
words "employment" or "appointment" cover not merely the initial
appointment but also other attributes of service like promotion
and age of superannuation etc. The appointment to any post
under the State can only be made after a proper advertisement
has been made inviting applications from eligible candidates and
holding of selection by a body of experts or a specially constituted
committee whose members are fair and impartial through a
.
written examination or interview or some other rational criteria for
judging the Inter se merit of candidates who have applied in
response to the advertisement made. A regular appointment to a
post under the State or union cannot be made without issuing
advertisement in the prescribed manner which may in some cases
include inviting applications from the employment exchange
where eligible candidates get their names registered. Any regular
appointment made on a post under the State or Union without
issuing advertisement inviting applications from eligible
candidates and without holding a proper selection where all
eligible candidates get a fair chance to compete would violate the
guarantee enshrined under Article 16 of the Constitution. (See B.
S. Minhas vs. Indian Statistical Institute and others AIR 1984 SC
363)."
23. Similarly, in State of Bihar vs Upendara Narain Singh and others
(2009) 5 SCC 65, Hon'ble Supreme Court has held as under:-
"13. The equality clause enshrined in Article 16 mandates that
every appointment to public posts or office should be made by
open advertisement so as to enable all eligible persons to
compete for selection on merit Umesh Kumar Nagpal v. State of
Haryana and Ors. ; Union Public Service Commission v. Girish
Jayanti Lal Vaghela ; State of Manipur and Ors. v. Y. Token Singh
and Ors. and Commissioner, Municipal Corporation, Hyderabad
and Ors. v. P. Mary Manoranjani and Anr. . Although, the Courts
have carved out some exceptions to this rule, for example,
compassionate appointment of the dependent of deceased
employees, for the purpose of this case it is not necessary to
elaborate that aspect."
CONCLUSION
24. In the light of the above discussion, the petition is allowed. 2 nd
.
amendment dated 01.10.2016 carried to the High Court of Himachal Pradesh
Members of Technical Manpower (Computers) (Appointment, Conditions of
Service and Conduct) Rules, 2014 prescribing preferential mode of
appointment for the System Officers working under the e-Courts project for
the post of Assistant Programmer is quashed and set aside. Consequently,
the recruitment process for the post of Assistant Programmer initiated by the
High Court of Himachal Pradesh vide Circular No. HHC/Estt.7(50)/2014-2978-
81, dated 23.01.2019 is also quashed and set aside.
25. The writ petition is accordingly disposed of in the aforesaid terms, so
also the pending application(s), if any.
( Tarlok Singh Chauhan )
Judge
August 24, 2021 ( Satyen Vaidya )
(naveen) Judge
