Himachal Pradesh High Court
Decided On: 05.01.202 vs State Of H.P. And Another on 5 January, 2021
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
CWP No. 2865 of 2020
.
Reserved on : 02.01.2021
Decided on: 05.01.2021
Shalini Thakur ...Petitioner.
Versus
State of H.P. and another ...Respondents.
___________________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? 1 Yes
For the Petitioner: Mr. Ramakant Sharma, Senior Advocate,
with Ms. Devyani Sharma, Advocate.
For the Respondents: Mr. Ashok Sharma, Advocate General, with
Mr.Vinod Thakur, Mr. Shiv Pal Manhans,
Addl. A.Gs., Mr. Bhupinder Thakur and Mr.
Yudhbir Singh Thakur, Dy. A.Gs.
Proceedings convened through
Video Conferencing.
_________________________________________________________
Justice Tarlok Singh Chauhan, J.
On 26.10.2018 Respondent No.2 issued an
advertisement for filling up of the posts of Veterinary Officer
batchwise on contract basis in which 18 posts were
reserved for General Category.
2. On 18.12.2018, the offer of appointment was
given to 11 candidates of General Category to the post of
Veterinary Officer and the petitioner was placed at serial No.
Whether reporters of the local papers may be allowed to see the judgment? yes
2 in the waiting list. As many as five candidates made
requests for extension in joining time.
.
3. On 05.01.2019, the respondents granted
extension in joining time to all such five candidates till
17.6.2019. Extension was granted in favour of Dr. Sunil
Kumar and Dr. Ashish Sharma on 9.1.2019. The father of
the petitioner applied for information under Right to
Information Act, 2005 and he was supplied the copy of
instructions dated 9.9.2016. On 10.7.2019 Dr. Nipuna
Thakur and Dr. Apoorva Shekhar were granted second time
extension by respondent No.1 to join duties till 16.12.2019.
In August 2019 Dr. Deepika Sharma, who was as at serial
No.1 in the waiting list was given appointment as Dr. Sunil
Kumar did not join within the extended period.
4. On 17.12.2019 the petitioner approached
respondent No.1 with the request to offer her appointment
since Dr. Apoorva Shekhar had not joined within the
extended period i.e. 16.12.2019. On 24.12.2019 further
third time extension of 3 months and 15 days was granted
to Dr. Nipuna Thakur for joining the post upto 31.03.2020.
On 28.2.2020 the Department of Personnel on having
received matter regarding appointment of Veterinary Officer,
advised respondent No.1 to give appointment to the
candidate in waiting list, in relaxation of rules. The
petitioner sent request vide email on 17.3.2020 to
.
respondent No.1 to issue her offer of appointment. On
12.5.2020, the petitioner again sent request vide email to
respondent No.1 to know about the status of her offer
application. On 14.5.2020 vide Annexure P19, respondent
No.1 rejected the claim of the petitioner for issuance of offer
of appointment to the post of Veterinary Officer.
5. Aggrieved by the aforesaid communication dated
14.5.2020 (Annexure P19), the petitioner has filed the
instant writ petition for the grant of following substantive
reliefs:
I) "A writ in the nature of writ of certiorari may
be issued thereby quashing and setting impugned
communication dated 14.5.2020 (Annexure P19) and
directing the respondents to issue offer of
appointment to the petitioner to the post of Veterinary
Officer in the Animal Husbandry Department,
Himachal Pradesh without any further delay.
II) Writ in the nature of mandamus may be
issued directing the respondent to grant all monetary
as well as service benefits with effect from 18.6.2019
or in the alternative at least with effect from
17.12.2019 and all the arrears be ordered to be paid
alongwith interest at the rate of 12% per annum.
III) Special costs may be awarded in favour of
petitioner and against respondent No.1 who has
denied legitimate claim of the petitioner without there
being any justification on his part."
.
6. The respondents filed their reply, wherein it is
averred that the Departmental Selection Committee held
selection interview for 18 posts of Veterinary Officers (on
contract) and selected 18 candidates and waiting list of 7
candidates was prepared. As per Government instructions,
the validity of the panel consisting of selection list and
waiting list was to remain valid/operative for a period of one
year which
r expired on 05.12.2019, therefore, the
representation of the petitioner was rightly rejected on
17.12.2019.
7. On 27.10.2020 this Court after hearing the case
for a considerable time, passed the following order:
"It appears that some of the candidates
namely Dr. Apoorva Shekhar and Dr. Nipuna were
granted extension of time beyond what was
stipulated in the instructions issued by the
Government on 9th September, 2016 (Annexure P11),
wherein the maximum period of extension that can be
provided to a candidate for joining is only six months.
In the reply filed by the respondents, a specific
stand has been taken that the respondents were well
within their right to extend this period beyond six
months. We are at complete loss to understand as to
the source of power available with the respondents
for extending this period beyond six months in teeth
of the instructions dated 9th September, 2016 (supra).
What is more surprising is that both the
persons namely Dr. Apoorva Shekhar and Dr.
Nipuna, who have sought extension of one year and
more, ultimately did not join and when the petitioner,
who was second in the waiting list, requested the
respondents to give her joining, her case was rejected
only on the ground that the panel has since expired
on 17.12.2019.
In such circumstances, the respondents are
directed to explain as to how the joining period of the
.
aforesaid two doctors was extended beyond the
maximum period of six months in teeth of the
instructions dated 9th September, 2016 and whether
extension upto one year or more could have been
granted, thereby defeating the rights of the
candidates appearing in the waiting list from joining
before the panel expired. The Additional Chief
Secretary (AH) to the Government of Himachal
Pradesh to file his personal affidavit in this regard
before the next date of hearing."
8.
In compliance to the aforesaid directions, the
Additional Chief Secretary (Animal Husbandry) has filed her
personal affidavit, the relevant portion whereof reads as
under:
"3. That Dr. Apoorva Shekhar and Dr. Nipuna Thakur
vide their representation dated 20.12.2018 had
requested to the respondent State to grant them
extension in joining time till 30.06.2019 and 10
months respectively on the ground that they are
pursuing their Ph.D. IIIrd year from their respective
institutions, need more time to complete their
research work. The representations of Dr. Apoorva
Shekhar and Dr. Nipuna Thakur are annexed as
Annexures RA1 and RA2, respectively with this
affidavit.
4. That the matter of Dr. Apoorva Shekhar and
Dr. Nipuna Thakur was placed before the Hon'ble
MinisterinCharge for taking appropriate decision.
The Hon'ble Minister had approved only six months
extension in their favour and was conveyed to them
vide letters dated 05.01.2019 (Annexure P8 (colly)
annexed with the present petition).
5. That Dr. Apoorva Shekhar and Dr. Nipuna
Thakur vide their representation dated 03.06.2019
and 01.06.2019 had again made representation to
the Department for seeking more time to join in the
Department, the copies of the same are annexed as
Annexures RA3 and RA4, respectively with this
affidavit.
6. That instructions governing the field are not
.
clear about the further extension beyond six months
before lapse of appointment automatically. The
representation at Annexure RA3 and RA4 which
were preferred by Dr. Apoorva Shekhar and Dr.
Nipuna Thakur were made before expiry of six
months period. As such the representations
(Annexures RA3 and RA4) regarding further
extension of time were placed before the Hon'ble
Chief Minister, H.P. for taking appropriate decision in
the matter and the Hon'ble Chief Minister has
approved the extension period for next six months till
16.12.2019 and in the meantime the waiting list
expired.
7. That Dr. Apoorva Shekhar on 16.12.2019 has
informed that due to some unforeseen circumstances
she was reluctant to joining her services as required
on 16.12.2019 and had submitted her No Objection
Certificate (NOC) to the Department.
8. That Dr. Nipuna Thakur again third time vide
her representation dated 28.11.2019 had requested
that due to ill health and being severally jaundiced
for 34 months her work was severally compromised
and she could not finish the same within the
stipulated time and as such she may be provided
further extension of eight months period upto August,
2020 to join her duty.
9. That approval to grant extension in joining time
in favour of Dr. Nipuna Thakur on Medical ground
upto 31.03.2020 as per her request as a special case
was given.
10. That after 31.03.2020 Dr. Nipuna Thakur has
again requested for extension in joining time vide her
representation dated 15.04.2020 (Annexure RA5)
annexed with the present affidavit), but the request
has been rejected by the respondent State and the
Department vide notification dated 02.07.2020
(Annexure RA6 annexed with the present affidavit)
has terminated the services of Dr. Nipuna Thakur.
The compliance affidavit may kindly be taken on
record in the interest of justice."
9. It would be evident from the perusal of
paragraph 6 of the affidavit that the instructions governing
.
the field are not clear about the further extension beyond
six months before lapse of appointment automatically. In
order to trust the correctness and veracity, it would be
necessary to reproduce this notification in its entirety and
the same reads as under:
r to
"No.Per (AP)CB(2)2/2015
Government of Himachal Pradesh
Department of Personnel (APIII)
Dated Shimla171002, the 9th September, 2016
From
Additional Chief Secretary (Personnel) to the
Government of Himachal Pradesh.
To
1. All the Administrative Secretaries to the
Government of Himachal Pradesh.
2. All Divisional Commissioners in Himachal
Pradesh.
3. All Head of Departments in Himachal Pradesh.
4. All Deputy Commissioners in Himachal
Pradesh.
Subject: Candidates recommended by the PSC/SSC for
appointment to State Services/Posts delay in
joining revival of offer of appointment after
their cancellation determination of seniority
thereof.
Sir,
I am to refer to the subject cited above and to say that
it has come to the notice of the Government that in certain
cases, the candidates recommended by the PSC/SSC or any
other recruiting authority for appointment take long time to
join by seeking extension in joining time and in spite of the
long delay in joining the candidates are allowed the benefit
of seniority on the basis of their initial selection. The
question whether in such cases it would not be desirable to
depress the seniority of the candidates who are appointed
on the result of the selections by interviews/examination
was considered and it has been decided that the following
procedure may be adopted now. This procedure will be
applicable both in case of (a) selection through interview and
(b) examinations.
(i) In the offers of appointment issued by different
.
Ministries/Departments, it should be clearly
indicated that the offer would lapse if the
candidates did not join within a specified period
(which shall not normally exceed one month).
(ii) If, however, within the period stipulated, a
request is received from the candidate(s) for
extension of time, it may be considered by the
Ministries/Departments and if they are
satisfied, an extension for a limited period of
three months may be granted but extension
beyond three months should not be granted
liberally and it may be granted only as an
exception where facts and circumstances so
warrant and in any case only upto a maximum
r of six months from the date of issue of the
original offer of appointment. An offer of
appointment would lapse automatically after
the expiry of six months from the date of issue
of the original offer of appointment. The
candidates who join within the above period of
six months will have their seniority fixed under
the seniority rules applicable to the service/post
concerned to which they are appointed, without
any depression of seniority.
(iii) If, even after the extension(s) if any granted by
the Ministry/Departments, a candidate does not
join within the stipulated time (which shall not
exceed a period of six months), the order of
appointment should lapse automatically.
(iv) An offer of appointment which has lapsed,
should not ordinarily be revived later, except in
exceptional circumstances and on grounds of
public interest. The Commission should in all
cases be consulted before such offers are
revived.
(v) In a case where after the lapsing of the offer, the
offer is revived in consultation with the Public
Service Commission as mentioned in subpara
(iv) above, the seniority of the candidates
concerned would be fixed below those who have
already joined the posts concerned within the
prescribed period of six months; and if the
candidate joins before the candidates of the
next selection/ examination join, he should be
placed below all others of his batch. If however,
the candidate joins after some or all the
candidates of the next selection/examination
have joined, he should be:
.
(a) in cases of selection through interview,
placed at the bottom of all the
candidates of the next batch.
(b) in the case of examination, allotted to
the next years batch and placed at the
bottom.
2. These instructions may also be brought to the notice
of all concerned for strict compliance.
Yours faithfully,
Sd/
(Tarun Shridhar)
Addl. Chief Secretary(Personnel) to the
Government of Himachal Pradesh
r Telephone No.01772622382."
10. A combined reading of the aforesaid notification
reveals that the instructions on the subject are absolutely
clear that maximum of six months from the date of issue of
the original offer of appointment can be granted to a
candidate to join, which could not have in any condition
been extended by any person or authority as the same was
not permissible in accordance with the notification dated 9 th
September, 2016.
11. A Bench of five Judges of the Hon'ble Patna
High Court has considered the binding effect of executive
instructions in Satrudhan Sahani and others vs. The
State of Bihar and others AIR 1992 (Patna) 21 wherein it
has been held that not only the statutory provisions are
meant to be obeyed or enforced, but even executive
instructions issued by the State Government are expected
to be followed and obeyed. The very object of issuance of
.
such executive instructions is to avoid arbitrariness in
matters of grant of contracts, licence, quotas, mineral rights
and rights in Jalkars so that there is no element of personal
bias or extraneous consideration. The difference between the
violation of a statutory provision and an executive
instruction is that so far the procedures indicated in the
statutes, which are integral parts thereof, are not followed in
form but even in substance on the basis of the well known
rules laid down by the Courts that if a statute provides a
particular procedure for an act to be done it should be done
in that manner or not at all. On the other hand, so far
executive instructions are concerned, they are only meant
to be followed, but if while complying such instructions, in
relation to grant of contracts, licence, rights in minerals and
Jalkars, there has some deviation, unless such deviation
can be held to be hit by Article 14 of the Constitution, i.e.
arbitrary, irrational or mala fide, the grant or the settlement
ipso facto shall not become invalid. It shall be apposite to
refer to the relevant observations as contained in
paragraphs 8 to 18, which read as under:
"8. It appears that the aforesaid view has not
found favour with the Supreme Court in its later
decisions in the cases of Ramana Dayaram Shetty v.
The International Airport Authority of India AIR 1979
SC 1628, Kasturilal Lakshmi Reddy, etc. v. The State
of Jammu and Kashmir AIR 1980 SC 1992 and Ram
.
and Shyam Company v. State of Haryana, AIR 1985
SC 1147. In the case of Ramana Dayaram Shetty v.
The International Airport Authority of India and
others (supra), larger question was formulated by the
Supreme Court as to what are the constitutional
obligations of the State, when it takes action in
exercise of its statutory or executive power? Is the
State entitled to deal with its property in any manner
it likes or award a contract to any person it chooses
without any constitutional limitations upon it? What
are the parameters of its statutory or executive power
in the matter of awarding a contract or dealing with
its property? After pointing out that "modern welfare
State which is committed to egaliterian values and
dedicated to the rule of law", it was held that "having
regard to the constitutional mandate of Article 14 as
also the judicially evolved rule of administrative law,
the 1st respondent was not entitled to act arbitrarily
in accepting the tender of the 4th respondent, but
was bound to conform to the standard or norm laid
down in para 1 of the notice inviting tenders which
required that only a person running a registered IInd
Class hotel or restaurant and having at least 5 years'
experience as such should be eligible to tender". It
was further pointed out that the action of the
Authority in accepting the tender of the 4th
respondent, even though they did not satisfy the
prescribed condition of eligibility, "was clearly
discriminatory, since it excluded other persons
similarly situate from tendering for the contract". It
may be mentioned that the petitioner of that case had
neither entered into any agreement nor any
registered document had been executed in his favour
but that objection did not stand in his way while
invoking the writ jurisdiction of the High Court.
9. In the case of Kasturi Lal Lakshmi Reddy, etc. v.
The State of Jammu and Kashmir (supra) again it
was pointed out (at page 1999 of AIR):
".....unlike a private individual, the State cannot
act as it pleases in the matter of giving largess.
Though ordinarily a private individual would be
guided by economic considerations of selfgain
in any action taken by him, it is always open to
him under the law to act contrary to his self
interest or to oblige another in entering into a
contract or dealing with his property. But the
Government is not free to act as it likes in
granting largess such as awarding a contract or
.
selling or leasing out its property. Whatever be
its activity, the Government is still the
Government and is, subject to restraints
inherent in its position in a democratic society.
The constitutional power conferred on the
Government cannot be exercised by it
arbitrarily or capriciously or in an unprincipled
manner, it has to be exercised for the public
good..... If the Government awards a contract or
leases out or otherwise deals with its property
or grants any other largess, it would be liable to
be tested for its validity on the touchstone of
reasonableness and public interest and if it
fails to satisfy either test, it would be
r unconstitutional and invalid."
10. Again in the case of Ram and Shyam Company v.
State of Haryana (supra) it was said that Government
is not free like an ordinary individual, in selecting
recipient for its largesse and it cannot choose to deal
with any person it so pleases "in its absolute and
unfettered discretion" and Courts can examine such
actions on the touchstone of reasonableness and
public interest.
11. In yet another case Shri Harainder Singh Arora v.
Union of India, AIR 1986 SC 1527 the tenders were
invited for supply of fresh buffalo and cow milk. The
appellant before the Supreme Court was eligible for
submitting tenders. Although his tender was lowest,
the tender of Government Milk Scheme was
accepted. It was said (at page 1534 of AIR):
"In the instant case, the instrumentalities of the
State invited tenders for the supply of fresh
buffaloes and cows milk and, therefore, this
case has to be decided on the basis of bid by
the tenderers. There was no question of any
policy in this case. It is open to the State to
adopt a policy different from the one in
question. But if the authority or the State
Government chooses to invite tenders then it
must abide by the result of the tender and
cannot arbitrarily and capriciously accept the
bid of respondent No. 4 although it was much
higher and to the detriment of the State."
12. Recently, in the case of Star Enterprises etc. etc.
v. The City and Industrial Development Corporation of
Maharashtra Ltd., (1990) 2 JT 401, it was pointed out
by a Bench of the Supreme Court (at page 403) : --
.
"In recent times, judicial review of
administrative action has become expansive
and is becoming wider day by day. The
traditional limitations have been vanishing and
the sphere of judicial scrutiny is being
expanded. State activity too is becoming fast
pervasive. As the State has descended into the
commercial field and giant public sector
undertakings have grown up, the stake of the
public exchequer is also large justifying larger
social audit, judicial control and review by
opening of the public gaze; these necessitate
recording of reasons for executive actions
including cases of rejection of highest offers.
r That very often involves long stakes and
availability of reasons for action on the record
assures credibility to the action; disciplines
public conduct and improves the culture of
accountability. Looking for reasons in support of
such action provides an opportunity for an
objective review in appropriate cases both by
the administrative superior and by the judicial
process."
13. In view of series of judgments of the Supreme
Court, now it is not possible to dismiss a writ
application filed on behalf of a person who feels that
he has been discriminated by the State Government
or an Authority which can be held to be a 'State'
within the meaning of Article 12 of the Constitution in
matters of settlement of fishery rights in tanks land
jalkars belonging to the State, only on the ground
that no registered document has been executed in
favour of such petitioner by the competent authority.
When the Supreme Court, by the aforesaid order
passed in connection with this case itself, directed
that the writ application be heard on merit after
setting aside the earlier order passed by this Court,
in my view, the decision of the Full Bench in Chetlal
Sao's case (supra) on the question of maintainability
of a writ application in absence of a registered
document stands overruled.
14. Now the question as to whether the other part of
the decision in Chetlal Sao's case (supra) saying that
administrative instructions and circulars issued from
time to time for the lease of fishery rights in tanks
(sairats) vested in the State are not statutory in
nature and binding on the Government has also been
overruled by the Supreme Court, needs to be
examined. On behalf of the petitioners it was pointed
.
out that as the earlier order passed by this Court in
this application was based on the Full Bench
judgment in Chetlal Sao's case (supra), it will be
deemed that the aforesaid Full Bench judgment has
been overruled even so far its view in respect of the
nature of administrative instructions and circulars is
concerned.
15. From a bare reference to the earlier order passed
by this Court it shall appear that this application had
been dismissed only on the ground that it was not
maintainable, as no registered instrument had been
executed in favour of the petitioners which was
necessary before the petitioners could invoke the writ
jurisdiction of this Court, in view of the judgment of
the Supreme Court in the case of The Bihar Eastern
Gangetic Fishermen Cooperative society Ltd. v.
Sipahi Singh (supra) and Full Bench judgment in the
case of Chetlal Sao v. The State of Bihar (supra), This
writ application had not earlier been dismissed on
the ground that the petitioners could not complain of
the violation or contravention of the administrative
instructions issued by the State Government in
respect of settlement of fishery rights, As such, by
the aforesaid order passed in this case by the
Supreme Court, it shall not be deemed that even the
view expressed by the Full Bench in the case of
Chetlal Sao v. The State of Bihar (supra) in respect of
binding nature of the administrative instructions and
circulars issued by the State has also been
overruled.
16. Dr. Sadanand Jha, appearing for the petitioners,
made reference to some judgments of the Supreme
Court, where it has been pointed out that when any
order or circular has been issued by the State
Government and if they are not followed, the persons
aggrieved can move courts for a direction to the State
Government to follow their own byelaws and
executive orders. In the case of B.S. Minhas v. Indian
Statistical Institute, AIR 1984 SC 363 : (1984 Lab 1C
15) it was said that "if the byelaws had been framed
for the conduct of the affairs to avoid arbitrariness,
respondent No. 1 cannot, therefore, escape the
liability for not following the procedure prescribed by
byelaws thereto". Again in the case of Sadhu Singh
v. State of Punjab, AIR 1984 SC 739 : (1984 Cri LJ
404 it was pointed out (at page 743 of AIR):
".....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."
It was said in the case of A.L. Kalra v. The Project
and Equipment Corporation of India Ltd., AIR 1984
SC 1361 : (1984 Lab IC 961):
"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,
r 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."
In the case of Shri Sachidanand Pandey v. The State
of West Bengal, AIR 1987 SC 1109, while dealing
with the West Bengal Land Management Manual
(1977), published under the authority of the Board of
Revenue, it was observed that statutes and statutory
orders, no doubt, are to be obeyed but:
"It does not mean that other orders,
instructions etc. may be departed from in any
individual case, if applicable to the facts. They
are not to be ignored until amended. The
Government or the Board may have the power
to amend these orders and instructions, but
nonetheless they must be obeyed so long as
they are in force and are applicable."
Reference was also made to a recent judgment of the
Supreme Court in the case of N.T. Bevin Katti etc. v.
Karnataka Public Service Commission, AIR 1990 SC
1233 : (1990 Lab IC 1009).
17. A Bench of this Court in the case of Man Singh v.
The State of Bihar, 1982 BBCJ 392 : (1983 Lab IC
384) had to consider an order dated 1111980
issued by the State Government laying down the
policy and procedure for transfer and posting of
Government employees in the State of Bihar. A
question arose as to whether the said circular was
mandatory in nature and as such the principles and
policies laid down therein had to be followed to the
letter; infraction of which in any respect will result in
invalidity of the order of transfer. It was held that the
.
policy and procedure laid down in that circular
amounted to an executive instruction. It was further
said as follows (at page 389 of Lab IC) :
"We should not (if legally permissible) allow
administrative or executive efficiency to
flounder on the rock of avoidable technicality.
It is well to remember that administrative and
executive efficiency or exigency should not be
top readily sacrificed. But such would be the
results if the instruction is given a mandatory
force. State would be completely deprived of
much needed 'play in its joints'."
In that very case, it was observed that even if the
executive instructions are directory, it does not mean
that they can be ignored because even directory
provisions are not meant to be violated. But it was
held that breach of such instructions can be
overlooked provided there has been substantial
compliance. In the case of Bain Peanut Company of
Taxes v. Pinsons (1930) 75 L Ed 482 (491), Holmes,
J. said:
"We must remember that the machinery of the
Government would not work if it were not
allowed a little play in its joints."
That very observation was quoted with approval by
the Supreme Court in the wellknown case of State of
Jammu and Kashmir v. Triloki Nath Khosa, AIR 1974
SC 1 : (1974 Lab IC 1).
18. From the aforesaid judgments it shall appear
that Courts have from time to time impressed that not
only the statutory provisions are meant to be obeyed
or enforced, but even executive instructions issued by
the State Government are expected to be followed
and obeyed. Same will be the position in respect of i
the executive instructions issued relating to grant of
licence or lease of the properties Of the State. It need
not be pointed out that the very object of issuance of
such executive instructions is to avoid arbitrariness
in matters of grant of contracts, licence, quotas,
mineral rights and rights in Jalkars so that there is
no element of personal bias or extraneous
consideration. Since last few decades the State
Government is the biggest landlord of the State. But
within the framework of the Constitution by which it
is bound, it cannot act as the old landlords. As such,
to achieve uniformity, remove arbitrariness and
discrimination, executive decisions are taken from
.
time to time laying down the procedure for the grant
of contracts, licences, rights in minerals and Jalkars,
which have vested in the State. The difference
between the violation of a statutory provision and an
executive instruction is that so far the procedures
indicated in the statutes, which are integral parts
thereof, have to be followed not only in form but
even in substance on the basis of the wellknown
rule laid down by the Courts that if a statute
provides a particular procedure for an act to be done,
it should be done in that manner or not at all, Nazir
Ahmad v. King Emperor, AIR 1936 BC 253 : (1936 All
LJ 895). On the other hand, so far executive
instructions are concerned, they are also meant to be
followed, but if while complying such instructions, in
relation to grant of contracts, licence, rights in
minerals and Jalkars, there has been some
deviation, unless such deviation can be held to be hit
by Article 14 of the Constitution, i.e., arbitrary,
irrational or mala fide, the grant or the settlement
ipso facto shall not become invalid. If a grievance is
made before a court of law in respect of
contravention of such executive instructions or
circulars, the Court has to test the alleged
contravention on the touchstone of Article 14 of the
Constitution. If the actions of the authorities are
upheld in the light of Article 14 of the Constitution,
then Courts have to condone deviations made if any.
It is well settled that all provisions of even an Act or
statutory rule are not mandatory in nature, unless
they form the integral part thereof. Reference in this
connection may be made to Crawford on Statutory
Construction where it has been said as follows:
".....The question as to whether a statute is
mandatory or directory depends upon the
intent of the Legislature and not upon the
language in which the intent is clothed. The
meaning and intention of the Legislature must
govern, and these are to be ascertained, not
only from the phraseology of the provision, but
also by considering its design, and the
consequences which would follow from
construing it the one way or the other...." If
some of the provisions which are statutory in
nature on proper construction can be held to
be directory, then, in my view, it is difficult to
hold that all instructions contained in an
administrative circular in respect of settlement
.
of a Jalkar shall be mandatory in nature so
as to vitiate the settlement in a case where
there has been some deviation, which is not
unreasonable, irrational, mala fide and as
such hit by Article 14 of the Constitution."
12. Now adverting to the claim of the petitioner, it is
not in dispute that her name appeared in the waiting list,
which is prepared in service matters by the competent
authority of eligible and qualified persons who in order of
merit are placed below the last selected candidate. How
waiting list should operate and what is its nature may be
governed by the rules. Usually, it is linked with the selection
or examination for which it is prepared. Such lists are
prepared either under the rules or even otherwise mainly to
ensure that the working in the office does not suffer if the
selected candidate does not join for one or the other reasons
or the next selection or examination is not held soon.
Therefore, once the selected candidates join and no vacancy
arises due to resignation etc. or for any other reason within
the period the list is to operate under the rules or within
reasonable period where no specific period is provided then
candidate from the waiting list has no right to claim
appointment to any future vacancy which may arise unless
the selection was held for it.
13. A waiting list prepared in an examination
conducted by the Commission does not furnish a source of
.
recruitment. It is operative only for the contingency that if
any of the selected candidates does not join then the person
from the waiting list may be pushed up and be appointed in
the vacancy so caused or if there is some extreme exigency
the Government may as a matter of policy decision pick up
Court in
persons in order of merit from the waiting list. This is so
held by a Bench of three Judges of the Hon'ble Supreme
Gujarat State Dy. Executive Engineers'
Association vs. State of Gujarat and others 1994 Supp
(2) SCC 591.
14. Similar reiteration of law can be found in the
two recent judgments of this Bench rendered in CWP No.
3554 of 2019 titled Dharmender Kumar vs. State of H.P.
and others, decided on 22.07.2020 and CWP No.3371 of
2019 titled Robin Singh Mehta and others vs. State of
H.P. and others, alongwith connected matters, decided on
12.11.2020.
15. In the instant case, as noticed above, the
respondentsState illegally granted repeated extension, that
too, beyond the permissible limits to the two doctors namely
Dr. Apoorva Shekhar and Dr. Nipuna Thakur thereby
depriving the rights, that too, for no fault of the candidates
including the petitioner whose names were appearing in the
.
waiting list from joining before the panel expired. These
candidates had a right of consideration when the appointed
candidates did not join and the extension given to these
appointed candidates to join was otherwise illegal and
contrary to instructions issued by the Government.
16.
At this stage, we are informed by the learned
Advocate General that the petitioner has already been
appointed on batchwise basis and has also joined. We find
no merit in this contention.
17. In view of the aforesaid discussion, we find
merit in this petition and the same is allowed by quashing
the impugned notification dated 14.5.2020 (Annexure P19)
and the respondents are directed to appoint the petitioner
as a Veterinary Officer w.e.f. 17.12.2019 alongwith her
seniority. However, taking into consideration the peculiar
facts and circumstances of the case, the petitioner shall not
be entitled to any monetary claims in case the appointment
letter in her favour from the aforesaid date is issued on or
before 31.01.2021, failing which, the petitioner shall also
be entitled even to the arrears alongwith interest at the rate
of 12% per annum, which shall be paid at the first instance
by the officialsrespondents and then made recovery from
the erring officials.
.
18. The writ petition stands disposed of in the
aforesaid terms, so also the pending application(s), if any.
(Tarlok Singh Chauhan)
Judge
(Jyotsna Rewal Dua)
5 th
January, 2021. Judge
(GR)
