Himachal Pradesh High Court
Technical University vs State Of Punjab on 17 December, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17th DAY OF DECEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION (ORIGINAL APPLICATION)
NO. 6358/2020
BETWEEN:
SURENDER SHARMA,
SON OF SH. B. D. SHARMA,
RESIDENT OF NIRMAL NIWAS,
TUTI KANDI, SHIMLA, PERMANENT
RESIDENT OF VILLAGE AND POST OFFICE
CHALAI, TEHSIL DEHRA, DISTRICT KANGRA,
H.P., PRESENTLY WORKING AS
ASSISTANT REGISTRAR, H.P.
TECHNICAL UNIVERSITY, HAMIRPUR,
DISTRICT HAMIRPUR, H.P.
....PETITIONER
(BY SH. JIYA LAL BHARDWAJ, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (TECHNICAL EDUCATION),
SHIMLA-2.
2. DIRECTOR, TECHNICAL EDUCATION,
SUNDER NAGAR, DISTRICT MANDI, H.P.
3. HIMACHAL PRADESH TECHNICAL UNIVERSITY,
THROUGH ITS REGISTRAR, HAMIRPUR,
DISTRICT HAMIRPUR.
4. HIMACHAL PRADESH STATE COOPERATIVE
MARKETING AND CONSUMERS FEDERATION
THROUGH ITS MANAGING DIRECTOR,
NEAR VICTORY TUNNEL, SHIMLA-1.
5. SANJEEVAN MANKOTIA,
PRESENTLY WORKING AS
::: Downloaded on - 31/01/2022 23:27:13 :::CIS
2
ASSISTANT REGISTRAR,
H.P. TECHNICAL UNIVERSITY,
HAMIRPUR, DISTRICT HAMIRPUR, H.P.
...RESPONDENTS
(BY ASHOK SHARMA, A.G. WITH MR. RAJINDER DOGRA, SR.
.
ADDL. A.G., MR. SHIV PAL MANHANS, ADDL. A.G. AND MR.
BHUPINDER THAKUR, DY.A.G. FOR R-1 & R-2)
(SH. DINESH THAKUR, ADVOCATE, FOR R-3)
(SH. VIJAY SINGH THAKUR, ADVOCATE FOR R-4)
(SH. VINOD THAKUR, ADVOCATE, FOR R-5 WITH
MR. ANUPAM KUMAR, REGISTRAR)
RESERVED ON: 13.12.2021
___________________________________________________________________
This petition coming on for admission after notice this
day, Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the
following:
ORDER
The petitioner initially filed this petition before the
erstwhile Tribunal and after closure thereof, the same has been
transferred to this Court. The petitioner preferred an application
for amendment of the petition, which was duly allowed and on
the basis of the amended petition, the petitioner has now sought
for following substantive reliefs:
i. That appointment of respondentNo.5 on secondment
basis de-hors the qualification prescribed in the Act
rules and statute be quashed and set aside, with all
consequential actions.
ii. That the absorption of respondent No.5 de-hors the
qualification prescribed in the Act rules and statutes
be quashed and set aside, with all consequential
actions.
iii. That respondentNo.3 be directed to place on record the
public notice issued for the appointment to the post of
Assistant Registrar on secondment basis de-hors the
qualification prescribed in the Act be placed on record
and same may kindly be declared illegal.
.
iv. That respondent No.3 be directed to place on record
the entire proceeding undertaken to absorbed
respondentNo.5 de-hors the qualification prescribed in
the Act and same may be quashed and set aside.
v. That respondent No.5 be directed to be repatriated to
his parent employer respondentNo.4.
vi. That the recruitment year of the petitioner be declared
as 2014 as recruitment process was delayed
inordinately by respondents due to intervention of
respondent No.5.
vii. That a writ in the nature of quo warranto may kindly
be issued to quash the appointment of respondent
No.5 as Assistant Registrar on secondment basis in
respondent No.3-University as per office orders dated
21.01.2013 and 26.02.2013 (Annexures A-11 and A-
12) and thereafter his absorption on the post of
Assistant Registrar as per office order dated
02.09.2015(Annexure A-14) issued by respondent
No.3-University.
viii. That a writ in the nature of mandamus may kindly be
issued directing respondent No.3-University to
repatriate respondent No.5 to his parent department
i.e. respondent No.4-Federation and justice be done.
ix. That a writ in the nature of mandamus may also be
issued to make inquiry regarding illegal appointment
of respondent No.5 on secondment basis as Assistant
Registrar in the respondentNo.3-University since his
testimonials have neither been dated nor the
stamp/seal of the Managing Director of respondent
No.4-Federation has been appended on the documents
supplied to the applicant under RTI and further he
was ineligible to be taken on secondment basis and
suitable action may be taken against the erring officer
.
for which the applicant shall ever pray for.
2 The respondent-University issued a notice for filling
up three posts including the post of Assistant Registrar on
secondment basis and the same reads as under:
"Applications are invited from eligible employees of H.P.
Govt. /State Public Sector undertakings/Autonomous
Bodies/State Universities in H.P. holding the analogous
posts on regular basis with at least minimum three years
of regular service in the posts for filling up the following
posts in the given pay scale 'on secondment basis' as per
terms and conditions of deputation/secondment of Govt. of
Himachal Pradesh. The appointment will be initially for a
period of two years, which can be extended upto three
years. Eligible officials may send applications containing
their bio-data through proper channel. While forwarding
the application it may be certified by the sponsoring
authority that the particulars furnished by the official
concerned are correct and that no vigilance or disciplinary
case is pending or contemplated against the officers
concerned. Copies of ACRs for the proceeding three years
may also be sent under sealed cover duly marked
"confidential". Application should reach in the office of the
Registrar, Himachal Pradesh Technical University, Gandhi
Chowk, Hamirpur-177001 (HP) within one month from the
date of publication of this notice. Applications received after
last date and incomplete in any respect are liable to be
summarily rejected.
Name of Post No. of posts Pay scale Remarks
and place of
posting
Private Secretary 1 10300-34800+5000 On secondment
Grade Pay basis
Estate Officer 1 As applicable On secondment
basis
.
Assistant Registrar 1 15600-39100+5400 On secondment
Grade Pay basis
Willing candidates upto the age 45 years on 1st September
2012 may apply within on month from the date of this
publication through proper channel."
3 The aforesaid notice was published on the official
website of the respondent-University on 29.8.2012 and thereafter
sent through post to the various departments of the Government
including H.P. Vidhan Sabha, CPWD Shimla, Himachal Pradesh
University Shimla, Dr. Y.S. Parmar University Nouni, Solan and
CSK Krishi Vishavavidyalaya, Palampur.
4 It is not in dispute that respondent No.5 applied
directly for the post in question to the respondent-University vide
application dated 3.10.2012 and the same application was also
rooted through the employer, which was received by the
respondent-University on 6.11.2012 along with requisite NOCs.
The application submitted by respondent No.5 directly to the
respondent-University processed at one stage was even rejected
by the Vice Chancellor of the respondent-University. However,
later on discussions took place between the Vice Chancellor and
the Registrar of the respondent-University and a committee of the
Registrar along with two other members was constituted to look
into the matter and it is only thereafter that respondent No.5
came be appointed as Assistant Registrar on secondment basis.
.
5 Therefore, in the given facts and circumstances of the
case, first and foremost question that is required to be considered
is that whether the application submitted by respondent No.5
directly to the respondent -University without being rooted
through proper channel could have been considered by the
respondent-University.
6 to
It is a well settled rule of interpretation that in dealing
with matter relating to general public, statutes are presumed to
use words in their popular sense and they should be given their
ordinary, natural and familiar meaning. Popular sense means
that the sense which people conversant with the subject-matter
with which the statute is dealing, would attribute to it.
7 In our considered view, the same rule of interpretation
has to be applied while constructing words and phrases used in
non-statutory rules meant for observance of public authorities
and statutory functionaries.
8 The expression 'filing the application through proper
channel' has not been defined statutorily or otherwise. But then,
the expression is well understood by all concerned, who are in
service either of the Government or Corporations and institutions
like universities. It has always been understood as meaning to
move the superior authorities through hierarchical channel.
9 It is now well settled that where there is a defined
.
procedure, even without statutory force, it must be scrupulously
observed and non-observance results in rendering the act void
being violative of Article 14 of the constitution.
10 In Sadhu Singh vs. State of Punjab, 1984(2) SCC
310, the Hon'ble Supreme Court has held that any existing
executive instructions could be substituted by issuing fresh
executive instructions for processing the cases of lifers for
premature release, but once issued, these must be uniformly and
invariably applied to all cases of lifers so as to avoid the charge of
discrimination under Article 14 of the constitution.
11 In A.I. Kalra v. The Project and Equipment
Corporation of India Ltd. 1984(3) SCC 316, the Hon'ble
Supreme Court has held that an administrative authority who
purports to act by its regulation must be held bound by the
regulation. Even if these regulations have no force of law the
employment under these corporations is public employment and;
therefore, an employee would get a status which would enable
him to obtain a declaration for continuance in service, if he was
dismissed or discharged contrary to the regulations.
12 Having said so, it still cannot be ignored that this
petition was initially filed before the erstwhile Tribunal only on
25.2.2019, whereas respondent No.5 was appointed to the post of
.
Assistant Registrar on secondment basis in the respondent-
University vide office order dated 21.1.2013. The Tribunal
established under the Administrative Tribunals Act could have
entertained the original application; provided the same was filed
within limitation as prescribed under Section 21 of the Act.
This issue has been elaborately considered and dealt
with by the Hon'ble Supreme Court in D.C.S. Negi vs. Union of
India & ors., 2018 (16) SCC 721, wherein it was observed as
under:
12. Before parting with the case, we consider it necessary
to note that for quite some time, the Administrative
Tribunals established under the Act have been entertaining
and deciding the applications filed under section 19 of the
Act in complete disregard of the mandate of Section 21,
which reads as under:
"21. Limitation.-(1) A Tribunal shall not admit an
application,-
(a) in a case where a final order such as is mentioned in
clause (a) of sub-section (2) of section 20 has been made in
connection with the grievance unless the application is
made, within one year from the date on which such final
order has been made;
(b) in a case where an appeal or representation such as is
mentioned in clause (b) of sub-section (2) of section 20 has
been made and a period of six months had expired
thereafter without such final order having been made,
within one year from the date of expiry of the said period of
six months.
(2) Notwithstanding anything contained in subsection (1),
where-
(a) the grievance in respect of which an application is made
.
had arisen by reason of any order made at any time during
the period of three years immediately preceding the date on
which the jurisdiction, powers and authority of the Tribunal
becomes exercisable under this Act in respect of the matter
to which such order relates; and
(b) no proceedings for the redressal of such grievance had
been commenced before the said date before any High
Court, the application shall be entertained by the Tribunal if
it is made within the period referred to in clause (a), or, as
the case may be, clause (b), of sub-section (1) or within a
period of six months from the said date, whichever period
expires later.
(3) Notwithstanding anything contained in subsection (1) or
sub-section (2), an application may be admitted after the
period of one year specified in clause (a) or clause (b) of
sub-section (1) or, as the case may be, the period of six
months specified in sub-section (2), if the applicant satisfies
the Tribunal that he had sufficient cause for not making the
application within such period."
13. A reading of the plain language of the above
reproduced section makes it clear that the Tribunal cannot
admit an application unless the same is made within the
time specified in clauses (a) and (b) of Section 21(1) or
Section 21(2) or an order is passed in terms of sub-section
(3) for entertaining the application after the prescribed
period. Since Section 21(1) is couched in negative form, it is
the duty of the Tribunal to first consider whether the
application is within limitation. An application can be
admitted only if the same is found to have been made
within the prescribed period or sufficient cause is shown
for not doing so within the prescribed period and an order
is passed under Section 21(3).
14. In the present case, the Tribunal entertained and
decided the application without even adverting to the issue
of limitation. Learned counsel for the petitioner tried to
.
explain this omission by pointing out that in the reply filed
on behalf of the respondents, no such objection was raised
but we have not felt impressed. In our view, the Tribunal
cannot abdicate its duty to act in accordance with the
statute under which it is established and the fact that an
objection of limitation is not raised by the respondent/non
applicant is not at all relevant.
14 It is not in dispute that the petitioner while preferring
the original application did not file any application seeking
condonation of delay. The only explanation offered by the
petitioner for filing the original application after a period of 6
years is that the original application has been filed against the
recurring cause of action as illegality is continuing till date and
respondent No.5 is usurper to the post of Assistant Registrar as
basis of his appointment is illegal.
15 Even if it is assumed that there is no period of
limitation prescribed, even then in the matters relating to
promotion and appointments, the courts need to draw a line.
After all, every person ought to be entitled to sit back and
consider that his appointment and promotion effected a long time
ago would not be set aside after the lapse of a number of years.
16 In coming to such conclusion, we are duly
supported by the judgment of the Constitution Bench of the
Hon'ble Supreme Court in Rabindra Nath Bose & ors. vs.
.
Union of India & ors., 1970 AIR 470, wherein it was held as
under:-
"In so far as the attack was based on the 1952 rules,
it must fail on the ground that this petition under article
32 of the Constitution had been brought about 15 years
after the 1952 Rules were promulgated and effect given
to them in the Seniority List prepared on August 1,
1953. Even though article 32 is a guaranteed right it
does not follow that it was the intention of the
Constitution makers that this Court should discard all
principles and grant relief in petitions filed after
inordinate delay. It would be unjust to deprive the
respondents of the rights which had accrued to them.
Every person ought to be entitled to sit back and
consider that his appointment and promotion effected a
long time ago would not be set aside after the lapse of a
number of years."
17 Likewise, if a party having a right stands by and
sees another acting in a manner inconsistent with that right and
makes no objection while the act is in progress, he cannot
afterwards complain. This principle is based on doctrine of
acquiescence implying that in such a case party who did
not make any objection acquiesced into the alleged
wrongful act of the other party and, therefore, has no right to
complain against that alleged wrong.
18 Thus, in those cases, where period of limitation is
.
prescribed, within which the action is to be brought before the
Court, if the action is not brought within that prescribed period,
the aggrieved party looses remedy and cannot enforce his legal
right after the period of limitation is over.
19 Similar reiteration of law can be found in the
r to
judgments of the Hon'ble Supreme Court in Union of India and
others vs. Chaman Rana, (2018) 5 SCC 798 and
India and others vs. C. Girija and others 2019(3) SCALE 527,
Union of
wherein the Hon'ble Supreme Court observed that remaining
oblivious to the factum of delay and laches and granting relief is
contrary to all settled principles and would bring a tsunami in
the service resulting in administrative chaos.
20 In P.S. Sadasivaswamy v. State of Tamil
Nadu, 1974 AIR(SC) 2271, the Hon'ble Supreme Court has
categorically observed that in matters of promotion and seniority
should be agitated without delay and at least within six months
or at the most one year from the date of accrual of cause of
action.
21 Additionally, we may notice that at the time
when the petitioner approached the erstwhile Tribunal, he had
sought only for the following substantive reliefs:
.
i. That appointment of respondentNo.5 on
secondment basis de-hors the qualification
prescribed in the Act rules and statute be
quashed and set aside, with all consequential
actions.
ii. That the absorption of respondent No.5 de-hors
the qualification prescribed in the Act rules and
statutes be quashed and set aside, with all
consequential actions.
iii. That respondentNo.3 be directed to place on
record the public notice issued for the
appointment to the post of Assistant Registrar on
secondment basis de-hors the qualification
prescribed in the Act be placed on record and
same may kindly be declared illegal.
iv. That respondent No.3 be directed to place on
record the entire proceeding undertaken to
absorbed respondent No.4 de-hors the
qualification prescribed in the Act and same may
be quashed and set aside.
v. That respondent No.5 be directed to be
repatriated to his parent employer respondent
No.4.
vi. That the recruitment year of the petitioner be
declared as 2014 as recruitment process was
delayed inordinately by respondents due to
intervention of respondent No.5.
22 It is only later when the original application was
transferred to this Court that the petitioner amended the same
and sought for writ in the nature of quo warranto, which writ
.
obviously could not have been granted by the erstwhile Tribunal.
23. Therefore, what, in substance, the petitioner had
originally filed before the erstwhile Tribunal was a public interest
litigation in service matters, which obviously was not
maintainable in view of the judgment rendered by the Hon'ble
Supreme Court in Hari Bansh Lal vs. Sahodar Prasad Mahto
& ors., 2010 (9) SCC 655, relevant portion whereof reads as
under:
"PIL in service matters:
6) About maintainability of the Public Interest Litigation in
service matters except for a writ of quo warranto, there are
series of decisions of this Court laying down the principles
to be followed. It is not seriously contended that the matter
in issue is not a service matter. In fact, such objection was
not raised and agitated before the High Court. Even
otherwise, in view of the fact that the appellant herein was
initially appointed and served in the State Electricity Board
as a Member in terms of Section 5(4) and from among the
Members of the Board, considering the qualifications
specified in sub-section (4), the State Government, after
getting a report from the vigilance department, appointed
him as Chairman of the Board, it is impermissible to claim
that the issue cannot be agitated under service
jurisprudence. We have already pointed out that the person
who approached the High Court by way of a Public Interest
Litigation is not a competitor or eligible to be considered as
a Member or Chairman of the Board but according to him,
he is a Vidyut Shramik Leader. Either before the High
Court or in this Court, he has not placed any material or
highlighted on what way he is suitable and eligible for that
.
post.
7) In Dr. Duryodhan Sahu and Others vs. Jitendra Kumar
Mishra and Others, (1998) 7 SCC 273, a three- Judge
Bench of this Court held "if public interest litigations at the
instance of strangers are allowed to be entertained by the
Tribunal, the very object of speedy disposal of service
matters would get defeated". In para 21, this Court
reiterated as under:
"21. In the result, we answer the first question in the
negative and hold that the Administrative Tribunal
constituted under the Act cannot entertain a public interest
litigation at the instance of a total stranger."
8) In Ashok Kumar Pandey vs. State of W.B., (2004) 3 SCC
349, this Court held thus:
"16. As noted supra, a time has come to weed out the
petitions, which though titled as public interest litigations
are in essence something else. It is shocking to note that
courts are flooded with a large number of so-called public
interest litigations where even a minuscule percentage can
legitimately be called public interest litigations. Though the
parameters of public interest litigation have been indicated
by this Court in a large number of cases, yet unmindful of
the real intentions and objectives, courts are entertaining
such petitions and wasting valuable judicial time which, as
noted above, could be otherwise utilized for disposal of
genuine cases. Though in Duryodhan Sahu (Dr) v. Jitendra
Kumar Mishra this Court held that in service matters PILs
should not be entertained, the inflow of so-called PILs
involving service matters continues unabated in the courts
and strangely are entertained. The least the High Courts
could do is to throw them out on the basis of the said
decision. The other interesting aspect is that in the PILs,
official documents are being annexed without even
indicating as to how the petitioner came to possess them. In
one case, it was noticed that an interesting answer was
.
given as to its possession. It was stated that a packet was
lying on the road and when out of curiosity the petitioner
opened it, he found copies of the official documents.
Whenever such frivolous pleas are taken to explain
possession, the courts should do well not only to dismiss the
petitions but also to impose exemplary costs. It would be
desirable for the courts to filter out the frivolous petitions
and dismiss them with costs as aforestated so that the
message goes in the right direction that petitions filed with
oblique motive do not have the approval of the courts."
9) The same principles have been reiterated in the
subsequent decisions, namely, Dr. B. Singh vs. Union of
India and Others, (2004) 3 SCC 363, Dattaraj Nathuji
Thaware vs. State of Maharashtra and Others, (2005) 1
SCC 590 and Gurpal Singh vs. State of Punjab and Others,
(2005) 5 SCC 136.
The above principles make it clear that except for a writ of
quo warranto, Public Interest Litigation is not maintainable
in service matters."
24 Similar reiterations of law can be found in the
judgment delivered by this Court in Smriti Gupta & anr. vs.
State of H.P. & ors., 2016 Latest HLJ 191 and judgment
rendered by one of us (Justice Tarlok Singh Chauhan) in CWP
No. 6098/2012, titled Babita Thakur & ors. vs. Union of
India & ors., dated 23.12.2019.
25 In view of aforesaid discussions and for the reasons
recorded above, in our considered view, the instant petition at the
first place was not maintainable before the erstwhile Tribunal as
.
it was in the nature of public interest litigation and secondly on
the ground of limitation. Since considerable time has otherwise
elapsed, we are not inclined to interfere with the appointment of
respondent No.5. Mere fact that the petitioner has thereafter
amended the petition and the same has been allowed cannot give
him any advantage as it cannot cure the defect as pointed above.
26 The writ petition is dismissed, in the aforesaid terms,
so also the pending application(s), if any, leaving the parties to
bear their own costs.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
17.12.2021 Judge
(pankaj)
