Himachal Pradesh High Court
Poonam Devi Wife Of Rakesh Kumar vs Bench Of The High Court Has ... on 4 January, 2022
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 4th DAY OF JANUARY, 2022
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
Between:-
r to
CIVIL WRIT PETITION No.4443 of 2019.
POONAM DEVI WIFE OF RAKESH KUMAR
AGED ABOUT 33 YEARS, RESIDENT OF
VILLAGE ANDRELI BRAHMNA, POST
OFFICE NARELI, TEHSIL AND DISTT.
HAMIRPUR, H.P.
......PETITIONER.
(BY SH. KUL BHUSHAN KHAJURIA, ADVOCATE)
AND
1. THE STATE OF H.P., PRINCIPAL
SECRETARY (HEALTH) TO THE
GOVERNMENT OF H.P., SHIMLA-2.
2. DIRECTOR OF HEALTH SERVICES,
GOVERNMENT OF H.P., SHIMLA.
......RESPONDENTS.
(SH. AJAY VAIDYA, SENIOR ADDITIONAL
ADVOCATE GENERAL, FOR RESPONDENTS-1 &2)
________________________________________________________________
This petition coming on for admission after
notice this day, Hon'ble Mr. Justice Tarlok Singh
Chauhan, passed the following:
::: Downloaded on - 31/01/2022 23:33:01 :::CIS
2
ORDER
The instant petition has been filed for grant of
.
the following substantive reliefs:-
"i) That in view of the above mentioned facts
and circumstances, the respondents may kindly be
directed to offer appointment to the present
petitioner as staff nurse on batch-wise basis as the
posts are lying vacant with the respondent-
department, in the interest of justice and fair play.
ii) That the respondent department may kindly
be further directed to assign the proper place to the
petitioner in the seniority list."
2. A perusal of the reply filed on behalf of the
respondents goes to indicate that even though the
counseling process for the appointment to the post of Staff
Nurse on batch-wise basis was held in the year July, 2019.
The name of the petitioner along with four other similarly
situate persons was left out and it is only on 03.01.2020
that the petitioner has been offered appointment and has
joined as such.
3. Now, the only question that remains is regarding
the seniority of the petitioner.
4. It is more than settled that if a candidate has
been wrongly excluded from the process of the appointment
on account of illegal and arbitrary action on behalf of the
State, then he is entitled to notional seniority from the date,
.
the similarly situated persons have been appointed.
5. Reference in this regard can conveniently be
made to a recent judgment of the Hon'ble Supreme Court in
C. Jayachandran Vs. State of Kerala and ors., (2020)
5 SCC 230, wherein it was observed as under:-
"35.The earlier writ petition filed by the appellant
was allowed on 13 th September, 2010. The Division
Bench of the High Court has directed to re-cast the
seniority amongst the seven shortlisted candidates.
The appellant was one of them. The challenge to the
said order by three affected candidates remained
unsuccessful when SLP was dismissed by this Court
on 8th October, 2010. The SLP was filed by the
candidates who were granted benefit of moderation
of marks. Once the direction of the Division Bench
has attained finality, the appellant was entitled to
seniority as per the select list to be revised as per
merit of the candidates. In terms of Rule 6(2), the
seniority is to be determined by the serial order in
which the name appeared in the appointment order.
The argument of learned counsel appearing for
respondent No. 5 that the appellant was not
appointed by the same appointment order,
therefore, the appellant cannot claim seniority is not
tenable. The appellant was entitled to be appointed
along with other three candidates but because of the
action of the High Court in adopting moderation of
marks, the appellant was excluded from
.
appointment. The exclusion of appellant from
appointment was on account of an illegal act by the
High Court which has been so found by the judgment
dated 13th September, 2010. Since the select list
has to be revised, the appellant would be deemed to
be the part of the appointment along with other
candidates in the same select list. As the actual date
of appointment was on 24 th February, 2011, the
appellant cannot actually be treated to be appointed
on 30 th March, 2009 but is entitled to notional
appointment from that date and consequential
seniority.
36. In Sanjay Dhar, a three-Judge Bench of this Court
held as under:
"16. For the foregoing reasons the appeal is
allowed. The judgment under appeal is set
aside. It is directed that the appellant shall be
deemed to have been appointed along with
other appointees under the appointment order
dated 6-3-1995 and assigned a place of
seniority consistently with his placement in the
order of merit in the select list prepared by J&K
PSC and later forwarded to the Law
Department..."
37. In Lakshmana Rao Yadavalli, this Court held as
under:
"13. For the reasons recorded in
Lakshmana Rao Yadavalli v. State of A.P.
[Set out in paras 1 to 13, above.] , the
present appeals are allowed and it is
directed that the High Court as well as the
respondent State will do the needful for
giving appointment to the appellant with
retrospective effect i.e. from the date on
which she ought to have been appointed,
.
however, she shall not be paid salary for
the period during which she has not
worked as a District and Sessions Judge.
We are sure that the respondents will do
the needful for the appointment of the
appellant at an early date."
6. This otherwise has been consistent view of
this Court in Balak Ram Vs. State of H.P., 2015(1)
SLC 504, Poonam Kumari Vs. State of H.P. & anr.,
2015(4) HP LR 827 and Monica Sharma Vs. Dr.
Y.S. Parmar University of Horticulture and
Forestry, Nauni & ors., 2015(5) ILR H.P. 491.
7. Further, it is equally settled that the
candidate who is wrongly not appointed is to be given
benefit of notional seniority, from the date he should
have been appointed. Reference in this regard can
conveniently be made to the following judgments of
the Hon'ble Supreme Court:
(i) (2020) 5 SCC 230, titled as, Jayachandran vs. State
of Kerala;
(ii) (2000) 8 SCC 182, titled as, "Sanjay Dhar vs. J & K
Public Service Commission;
(iii) (2014) 2 SCC 158, titled as Sasidhar Reddy Sura Vs.
State of A.P.;
(iv) (2014) 13 SCC 393, titled as "Lakshmana Rao
Yadavalli vs. State of A.P.;
.
(v) (2008) 7 SCC 728, titled as "Balwant Singh Narwal
vs. State of Haryana, and;
(vi) (1996) 8 SCC 637, titled as, "Pilla Sitaram Patrudu vs.
Union of India.
8. Similar reiteration of law can be found in the
judgments of a Division Bench of this Court, in which one of
us (Hon'ble Mr. Justice Tarlok Singh Chauhan) was a
member in CWP No. 1364 of 2015, titled as "Poonam
Kumari versus State of H.P. and others", decided on
27.7.2015 and CWP No. 3139 of 2009, titled as "Smt.
Neetu versus State of H.P and others", decided on
19.6.2014.
9. In view of the aforesaid observations, we deem it
proper to dispose of the petition with the following
directions:
i) Respondents are directed to treat the petitioner to
have been appointed in service notionally from the
date when her juniors came to be appointed from
the same selection process.
ii) However, the monetary benefits will be payable to
the petitioner only from the date when she has
actually joined the department.
iii) The period between notional appointment and
the actual appointment shall count towards seniority
and also increments and her pay shall be fixed
accordingly. In other words, the petitioner shall be
.
entitled to salary, as is being drawn by other similar
situate persons in the same selection process from
the date they join or have joined services.
10. In view of the aforesaid directions, the instant
petition is allowed. Pending application, if any, also stands
disposed of.
(Tarlok Singh Chauhan)
Judge
(Chander Bhusan Barowalia)
Judge
4th January, 2022.
(krt)
