Sapna Devi vs State Of Himachal Pradesh
2021 Latest Caselaw 5809 HP

     IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

               ON THE 18TH DAY OF DECEMBER, 2021

                            BEFORE




                                                      .
          HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN





                               &
               HON'BLE MR. JUSTICE SATYEN VAIDYA





           CIVIL WRIT PETITION (ORIGINAL APPLICATION)
                          NO. 3785/2020

    BETWEEN:





    SAPNA DEVI,
    D/O SH. BELI RAM,
    W/O SH. PIAR CHAND,

    R/O VILLAGE HARDI, P.O. ROPRI
    KALEHARU, TEHSIL LADBHAROL,

    DISTRICT MANDI, H.P.                      .... PETITIONER

    (BY SH. SANJEEV BHUSHAN, SR. ADVOCATE
    WITH MR. RAJESH KUMAR, ADVOCATE)



    AND

    1.    STATE OF HIMACHAL PRADESH




          THROUGH SECRETARY
          SOCIAL JUSTICE AND EMPOWERMENT





          TO THE GOVERNMENT OF
          HIMACHAL PRADESH.
    2.    DIRECTOR,





          SOCIAL JUSTICE AND EMPOWERMENT
          SHIMLA, H.P.
    3.    HIMACHAL PRADESH STAFF SELECTION
          COMMISSION, HAMIRPUR, THROUGH
          ITS SECRETARY, H.P.
    4.    JYOTI SHARMA, W/O NOT KNOWN
          TO THE APPLICANT,
          ROLL NO.561003242 THROUGH
          SECRETARY, HIMACHAL PRADESH
          STAFF SELECTION
          COMMISSION, HAMIRPUR, H.P.
    5.    MEERA, W/O NOT KNOWN




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         TO THE APPLICANT,
         ROLL NO.561001985 THROUGH
         SECRETARY, HIMACHAL PRADESH
         STAFF SELECTION
         COMMISSION, HAMIRPUR, H.P.
    6.   NEELAM, W/O NOT KNOWN




                                                     .
         TO THE APPLICANT,





         ROLL NO.561002068 THROUGH
         SECRETARY, HIMACHAL PRADESH
         STAFF SELECTION





         COMMISSION, HAMIRPUR, H.P.
    7.   SHASHI VERMA, W/O NOT KNOWN
         TO THE APPLICANT,
         ROLL NO.561002949 THROUGH
         SECRETARY, HIMACHAL PRADESH





         STAFF SELECTION
         COMMISSION, HAMIRPUR, H.P.
                                            ...RESPONDENTS
    (SH. ASHOK SHARMA, A.G. WITH

    SH. RAJINDER DOGRA, SR. ADDL. A.G.,

    SH. SHIV PAL MANHANS,
    SH. VINOD THAKUR, ADDL. A.GS.
    AND SH. BHUPINDER THAKUR, DY.A.G. FOR R-1 & R-2 AND
    MS. EKTA KAPTA,ADDL. DIRECTOR, WOMEN AND


    CHILD DEVELOPMENT)
    (SH. RAJ KUMAR NEGI, ADVOCATE, FOR R-3 WITH SH.
    JITENDER KUMAR, SECRETARY, HPSSC)
    (SH. L.N. SHARMA, ADVOCATE, FOR R-4 & R-7)




    (SH.B.L. SONI, ADVOCATE, FOR R-5 & R-6)





          CIVIL WRIT PETITION (ORIGINAL APPLICATION)
                         NO. 4247/2020





    BETWEEN:

    1.   BABLI DEVI,
         W/O SH. MANOJ KUMAR,
         R/O VILLAGE DHARWALA,
         P.O. CHOORI, TEHSIL & DISTRICT
         CHAMBA, H.P.
    2.   RENUKA PATHANIA,
         D/O SH. SURINDER SINGH,
         R/O VILLAGE BATRAHAN,
         TEHSIL NURPUR,
         DISTRICT KANGRA, H.P.               .... PETITIONERS




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    (BY SH. SANJEEV BHUSHAN, SR. ADVOCATE
    WITH MR. RAJESH KUMAR, ADVOCATE)

    AND

    1.    STATE OF HIMACHAL PRADESH




                                                     .
          THROUGH SECRETARY





          SOCIAL JUSTICE AND EMPOWERMENT
          TO THE GOVERNMENT OF
          HIMACHAL PRADESH.
    2.    DIRECTOR,





          SOCIAL JUSTICE AND EMPOWERMENT
          SHIMLA, H.P.
    3.    HIMACHAL PRADESH STAFF SELECTION
          COMMISSION, HAMIRPUR, THROUGH





          ITS SECRETARY, H.P.
    4.    JYOTI SHARMA, W/O NOT KNOWN
          TO THE APPLICANTS,
          ROLL NO.561003242 THROUGH

          SECRETARY, HIMACHAL PRADESH
          STAFF SELECTION

          COMMISSION, HAMIRPUR, H.P.
    5.    MEERA, W/O NOT KNOWN
          TO THE APPLICANTS,
          ROLL NO.561001985 THROUGH


          SECRETARY, HIMACHAL PRADESH
          STAFF SELECTION
          COMMISSION, HAMIRPUR, H.P.




    6.    NEELAM, W/O NOT KNOWN
          TO THE APPLICANTS,
          ROLL NO.561002068 THROUGH





          SECRETARY, HIMACHAL PRADESH
          STAFF SELECTION
          COMMISSION, HAMIRPUR, H.P.





    7.    SHASHI VERMA, W/O NOT KNOWN
          TO THE APPLICANTS,
          ROLL NO.561002949 THROUGH
          SECRETARY, HIMACHAL PRADESH
          STAFF SELECTION
          COMMISSION, HAMIRPUR, H.P.
                                       ...RESPONDENTS
    (SH. ASHOK SHARMA, A.G. WITH
    SH. RAJINDER DOGRA, SR. ADDL. A.G.,
    SH. SHIV PAL MANHANS,
    SH. VINOD THAKUR, ADDL. A.GS.




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    AND SH. BHUPINDER THAKUR, DY.A.G. FOR R-1 & R-2 AND
    MS. EKTA KAPTA,ADDL. DIRECTOR, WOMEN AND
    CHILD DEVELOPMENT)
    (SH. RAJ KUMAR NEGI, ADVOCATE, FOR R-3 WITH SH.
    JITENDER KUMAR, SECRETARY, HPSSC)
    (SH. L.N. SHARMA, ADVOCATE, FOR R-4 & R-7)




                                                      .
    (SH.B.L. SONI, ADVOCATE, FOR R-5 & R-6)





           CIVIL WRIT PETITION (ORIGINAL APPLICATION)
                          NO. 4304/2020





    BETWEEN:

    1.    KAVITA DEVI,
          W/O SH. RAJESH SHARMA,





          R/O VILLAGE KOTHI, P.O. MARHARNA,
          TEHSIIL GHUMARWIN,
          DISTRICT BILASPUR,H.P.
    2.    KRISHNA DEVI,
          D/O SH. LES RAMM,

          R/O VILLAGE KANGTI,

          P.O. BABELI, TESHIL
          AND DISTRICT KULLU, H.P.       .... PETITIONERS

    (BY SH. SANJEEV BHUSHAN, SR. ADVOCATE


    WITH MR. RAJESH KUMAR, ADVOCATE)

    AND




    1.    STATE OF HIMACHAL PRADESH
          THROUGH SECRETARY





          SOCIAL JUSTICE AND EMPOWERMENT
          TO THE GOVERNMENT OF
          HIMACHAL PRADESH.





    2.    DIRECTOR,
          SOCIAL JUSTICE AND EMPOWERMENT
          SHIMLA, H.P.
    3.    HIMACHAL PRADESH STAFF SELECTION
          COMMISSION, HAMIRPUR, THROUGH
          ITS SECRETARY, H.P.
    4.    JYOTI SHARMA, W/O NOT KNOWN
          TO THE APPLICANTS,
          ROLL NO.561003242 THROUGH
          SECRETARY, HIMACHAL PRADESH
          STAFF SELECTION
          COMMISSION, HAMIRPUR, H.P.




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    5.    MEERA, W/O NOT KNOWN
          TO THE APPLICANTS,
          ROLL NO.561001985 THROUGH
          SECRETARY, HIMACHAL PRADESH
          STAFF SELECTION
          COMMISSION, HAMIRPUR, H.P.




                                                               .
    6.    NEELAM, W/O NOT KNOWN





          TO THE APPLICANTS,
          ROLL NO.561002068 THROUGH
          SECRETARY, HIMACHAL PRADESH





          STAFF SELECTION
          COMMISSION, HAMIRPUR, H.P.
    7.    SHASHI VERMA, W/O NOT KNOWN
          TO THE APPLICANTS,
          ROLL NO.561002949 THROUGH





          SECRETARY, HIMACHAL PRADESH
          STAFF SELECTION
          COMMISSION, HAMIRPUR, H.P.
                                                      ...RESPONDENTS

    (SH. ASHOK SHARMA, A.G. WITH

    SH. RAJINDER DOGRA, SR. ADDL. A.G.,
    SH. SHIV PAL MANHANS,
    SH. VINOD THAKUR, ADDL. A.GS.
    AND SH. BHUPINDER THAKUR, DY.A.G. FOR R-1 & R-2 AND


    MS. EKTA KAPTA,ADDL. DIRECTOR, WOMEN AND
    CHILD DEVELOPMENT)
    (SH. RAJ KUMAR NEGI, ADVOCATE, FOR R-3 WITH SH.
    JITENDER KUMAR, SECRETARY, HPSSC)




    (SH. L.N. SHARMA, ADVOCATE, FOR R-4 & R-7)
    (SH.B.L. SONI, ADVOCATE, FOR R-5 & R-6)





    RESERVED ON: 15.12.2021





    ___________________________________________________________________

                 This petition coming on for admission after notice this

    day, Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the

    following:




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                 ORDER

Since common questions of law and facts arise for

consideration in all these petitions, the same were taken up

.

together for hearing and are being disposed of by a common

judgment.

2. Respondent No.3-Commission issued an

advertisement dated 18.10.2016, for filling up various posts

including 50 posts of Supervisors on contract basis through

limited departmental recruitment vide post code No. 561. These

50 posts of Supervisor were further bifurcated into various sub

categories and out of 50, 10 posts were reserved for BPL category.

Respondent No.3 conducted screening test for the posts of

Supervisors and recommended 49 candidates for appointment,

out of which, only 7 candidates were recommended for being

selected against BPL category.

3. However, before these appointments could be made,

respondent No.2 came across instructions issued by the

department on 11.3.2014, which read as under:-

"No. SJE-B(2)3/2003-loose Government of Himachal Pradesh Social Justice and Empowerment Department.

From:

The Addl. Chief Secretary(SJ&E) to the Government of Himachal Pradesh

To The Director, Women Child Development, Cedar Home Brent Wood Estate, Himland Bamloe, Shimla-1,

.

Himachal Pradesh,

Dated: Shimla-2 the 11th March,2014

Subject: Regarding Advertisement No.27/2013 dated 21.11.2013.

Madam, I am directed to refer to your letter No.

WCD-A-B(1)9/2012, Estt. loose dated 18-1-2014 on the subject cited above and to say that the matter was taken up with Personnel Department who has

observed as under

"Examined. Since the posts in the instant case are to be filled-up from amongst the Anganwari Workers already in service

through Limited Direct Recruitment, as such, the posts can not be reserved for IRDP now B.P.L, as the B.P.L candidates seizes to be

so as soon as he/she get employed. However, the post reserved in the instant

case under horizontal reservation can be filled-up from the residuary category to

which the point originally belongs." You are, therefore, requested to take necessary action in the matter as per advice given by the DOP.

Yours faithfully,

Sd/-

(Dr. M.P Sood) Spl. Secretary (SJ&E) to the Govt, of Himachal Pradesh Ph.No.2622059"

4. Since Anganwari workers initially appointed under

IRDP/BPL category would cease to be BPL/IRDP category as soon

as one gets employment, therefore, respondent No.3 was

.

requested vide letter dated 19.1.2018 to make appropriate

amendments in the list of candidates recommended, but

respondent No.3 refused to do so as is evident from the letter

dated 1.2.2018, relevant portion whereof reads as under:

"In this connection, it is pertinent to mention here that

the recruitment process in r/o all the posts is conducted by the Commission in accordance with the provisions of Recruitment & Promotion Rules of the posts, Rules of

business and procedures of the Commission and

reservation break-up of posts provided by the requisitioning authorities in the requisition. The Commission cannot alter the break-up of posts at its own. The matter of BPL status of

Anganwari Workers was not kept in view by your department while sending the requisition to the Commission. Moreover, the candidates recommended

against the posts reserved for BPL categories are in

possession of BPL certificates issued by competent authorities.

It is also informed that some candidates while appearing for evaluation for 15 marks, provided Non Employment certificates in support of their claim of 01 marks admissible to the candidates belonging to families having no member employed in Govt/semi Govt. Organizations along with a clarification, letter No. SJE- 29/87-1CDS dated 4.5.2017 where it has been mentioned that the Anganwari workers etc. are not in the ambit of Govt. Employees being non salaried post. (Copy enclosed.)"

5 It is in this background that this Court called for the

presence of respondent No.2 and respondent No.3.

6 The Secretary of respondent No.3-Commission has

.

fairly conceded that the stand taken by the Commission before

this Court and even while issuing letter dated 1.2.2018 is not in

accordance with law and, therefore, indefensible.

7 We may observe that even if such opinion was not

given by the Secretary of respondent-Commission, even then the

stand taken by respondent No.3 was totally not tenable as it was

merely a selecting authority and could not have gone beyond the

requisition of the employer.

8 At this stage, we may also make note of the defence of

the selected candidates, who, apart from raising pleas of estoppel

and waiver, have virtually no other defence.

9 We have heard the learned counsel for the parties and

have also gone through the material placed on record.

10 At the outset, we need to observe that the requisition

as sent by respondent No.2 for filling up 10 posts of BPL category

was absolutely without any application of mind as it failed to

visualize the fact that as per the eligibility prescribed for the

posts in question, the candidates, already in service, were

drawing emoluments more than the income criteria fixed for the

BPL candidates and that is precisely what had been clarified by

the government vide its letter dated 11.3.2014 (supra).

11 Once that be so, obviously no appointment to the

.

category, as was sought for, from respondent No.3 could have

been made and, therefore, it had been rightly decided by

respondent No.2 that 7 posts of Supervisors recommended

against the BPL category be filled up from the respective

unreserved categories of General/SC/ST/OBC as per details

given below:

Sr. Category No.

                          r       to
                       General (UR)
                                                             No. of posts




















    12         Mr. B.L. Soni and Mr. L.N. Sharma, Advocates,

learned counsel for private respondents would strenuously argue

that having participated in the selection process, the petitioners

could not have turned around and challenged the same.

13 We are at complete loss as to how this proposition of

law can be made applicable to the facts of the instant case when

admittedly the post in question as per existing qualifications

could not have been filled up at all for want of any eligible

candidates.

14 In view of aforesaid discussions, we find merit in

.

these petitions and the same are accordingly allowed.

Consequently, appointment of the private respondents is ordered

to be quashed and set aside and respondent No.3-Commission is

directed to send names of the eligible candidates to the employer

strictly in accordance with respective unreserved categories of

appointment be made to them

General/SC/ST/OBC, as sought for by the employer and in case

the petitioners or any one or more are found to be eligible, then

from the same date when the

candidates of selection in question were appointed, which, in no

event, shall be later than 30 days and they shall be entitled to all

other consequential benefits, save and except benefit of pay,

which shall be granted to them from the date of their actual

joining. Pending application(s), if any, also stands disposed of.

15 Before parting, it needs to be observed that entire

mess has been created because of lack of coordination between

the various stake holders and on account of each of the stake

holders trying to prove their supremacy by entering into

unnecessary and unwarranted written communications. The

matter could have been conveniently resolved if the authorities

would have worked in unison and tandem and applied their

minds in a better and effective manner, rather than engaging in

unnecessary written communications.

16 Respondent No.3, as a matter of propriety and

.

procedure, should not have engaged in written communication at

all, particularly when the decision of the government had already

been placed before it regarding non-eligibility of the candidates.

17 We hope and trust that the respondents shall give no

occasion for complaint in future and in case of any doubt,

General before

correspondences.

r to consult the legal department or office of the learned Advocate

resorting to impulsive and mindless

(Tarlok Singh Chauhan) Judge

(Satyen Vaidya) 18.12.2021 Judge

(pankaj)