Himachal Pradesh High Court
Vivek Koundal vs State Of Himachal Pradesh & Others on 25 November, 2022
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Execution Petition No. 191 of 2021
alongwith Execution Petition Nos. 192
to 196, 228 to 235, 254 of 2021, and
.
Execution Petition Nos. 10 of 2022
Date of decision: 25.11.2022
1. Execution Petition No. 191 of 2021
Vivek Koundal. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
2. Execution Petition No. 192 of 2021
Sanjeev Kumar. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
3. Execution Petition No. 193 of 2021
Surender Kumar. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
4. Execution Petition No. 194 of 2021
Manoj Kumar. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
5. Execution Petition No. 195 of 2021
Ranjit Singh. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
6. Execution Petition No. 196 of 2021
Aditya Sharma. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
7. Execution Petition No. 228 of 2021
Gangveer Singh. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
8. Execution Petition No. 229 of 2021
Charanji Lal. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
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2 Ex. Petition No. 191 of 2021 &
connected matters.
9. Execution Petition No. 230 of 2021
Khub Ram. ...Petitioner.
Versus
.
State of Himachal Pradesh & others. ...Respondents
10. Execution Petition No. 231 of 2021
Rakesh Kumar. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
11. Execution Petition No. 232 of 2021
Kamal Kumar. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
12. Execution Petition No. 233 of 2021
Hitesh Kumar. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
13. Execution Petition No. 234 of 2021
Ram Singh. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
14. Execution Petition No. 235 of 2021
Sunil Kumar. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
15. Execution Petition No. 254 of 2021
Vikram Singh. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
16. Execution Petition No. 10 of 2022
Girdhari Lal. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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3 Ex. Petition No. 191 of 2021 &
connected matters.
For the Petitioner(s). Mr.Rajnish Maniktala, Senior Advocate,
alongwith Mr.Naresh Verma, Advocate.
For the Respondents: Mr.Hemant Vaid, Additional Advocate
General, for respondents No. 1 and 3 in all
.
petitions.
Ms.Suchitra Sen, advocate, for respondent-
Commission in Execution Petition Nos. 191
to 196 of 2021, 232, 234 of 2021 and 10 of
2022.
Mr.Sanjeev Kumar Motta, Advocate, for
respondent-Commission in Execution
Petition Nos. 228, 229, 230, 231, 235 and 254
of 2021.
Vivek Singh Thakur, Judge (Oral)
Petitioners have approached this Court by way of these
Execution Petitions, seeking implementation of order passed by Erstwhile
H.P. State Administrative Tribunal in Original Applications Nos. 383 of 2018,
389 of 2018, 412 of 2018, 416 of 2018, 418 of 2018, 450 of 2018, 454 of
2018, 492 of 2018, 2760 of 2018, 2761 of 2018, 2763 of 2018 and 4188 of
2018, which were decided by common judgment dated 10.4.2019 by
Erstwhile H.P. State Administrative Tribunal, (for short "the Tribunal")
alleging that implementation of the judgment, being done by the
respondents, is contrary to the mandate of the Court as respondents are
implementing the judgment for all candidates, ignoring the fact that fence
sitter candidates who had not approached the Court are not entitled for
benefit of order of the Court as direction was issued by the Court on the
petitions preferred by the petitioners and, in favour of the petitioners.
2. In present case, respondent No. 2-Commission, on the basis of
requisition sent by respondent No. 3, advertised post of Pump Operators
vide advertisement dated 18.10.2016 by prescribing essential qualifications,
which were as follows:-
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"(a) Should be Matriculate from a recognized Board of School
Education/Institute or recognized from equivalent
University/Board.
(b) Should possess Certificate in Trades Electrician/Wire
.
Man/Diesel Mechanic/Pump Mechanic from a recognized
Industrial Training Institute (ITI)."
3. Petitioners had passed ITI in trade of Motor Mechanic/Pump
Operator and Maintenance/Automobile Mechanic. Candidature of
petitioners was rejected by respondent No. 2-Commission on the ground
that Diploma in Mechanic (Motor Vehicle)/Pump Operator and
Mechanic/Automobile Mechanic were not Diploma as prescribed in essential
qualification as notified in the advertisement. The rejection of candidature
was assailed by petitioners by filing Original Applications referred supra.
4. During pendency of aforesaid Original Applications the
Tribunal directed examination of the matter by State Level Board of
Equivalence Committee. In sequel to orders dated 28.8.2018 and 5.3.2019,
passed by the Tribunal, report of the Committee was placed on record
alongwith affidavit. Operative portion of the report reads as under:-
"In view of above discussion, the Board was of the view that the
above course from a recognized ITI in Electrical, Mechanic (Motor-
Vehicle) and Pump Operator & Maintenance trades are Equivalent
to certificate/Diploma in Electrical/diesel Mechanic/Pump
Mechanic/Motor Mechanic/Pump Operator-Cum Mechanic trades
from a recognized ITI, for the post of Pump Operator."
5. Taking into consideration the report of State Level Committee,
the Tribunal disposed of petitions with direction to respondents/competent
authority to proceed further in the matter in accordance with decision dated
8.4.2019 of State Level Board of Equivalence Committee as expeditiously
as possible, preferably by 31st May, 2017. In compliance of the aforesaid
directions, respondent No. 2-Commission revised the Merit List and
considered candidature of all candidates irrespective of the fact whether
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they have approached the court or not and prepared Revised Merit List and
notified the same.
6. In the interregnum respondent-State had assailed the order of
.
the Tribunal, dated 10.4.2019, by filing Writ Petitions, which were dismissed
vide order dated 9.4.2021 passed in CWP No. 4375 of 2019 and other
connected matters. Thereafter, Contempt Petition(s) were filed by some of
candidates, who were petitioners in Original Applications, which were
disposed of by the Court on production of communication issued by
respondent No. 2-Commission, notifying the Revised Merit List of
recommended candidates to the post of Pump Operators.
7. Claim of the petitioners is that they filed Original Applications
before the Tribunal, wherein the Tribunal, in interim protection, had directed
the respondents to keep the posts vacant for them and after passing of final
judgment/order by the Tribunal, that order of keeping the posts vacant for
the petitioners merged in final order and, therefore, the said posts could not
have been offered to any other person except the petitioners, as only the
petitioners had assailed rejection of their respective individual candidature
and thus judgment has to be considered a judgment in personam passed in
favour of petitioners who had approached the Court and, therefore, it has
been contended that by considering candidature of all those who had not
approached the Court, but had accepted the rejection of their candidature, is
not in consonance with order passed by the Tribunal. It has been
contended that fence sitters must not be benefited for having accepted
rejection of their candidature. Accordingly, execution of order has been
prayed seeking direction to consider the petitioners for appointment to the
posts of Pump Operators, which were kept vacant in furtherance to order
passed by the Tribunal after quashing the Revised Merit List dated
22.7.2021.
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8. To substantiate plea of the petitioners, learned counsel for the
petitioners has placed reliance upon Puran Mal and others Vs. M/s Birla
Textiles Mills and others, 2019 (3) Sml LC 1412; Karan Singh Pathania
.
Vs. State of H.P. and others, 2016 LIC 23; Giashuddin Ahmed and
others Vs. State of Meghalaya and others, WP (C) 30/2014 (Meghalaya
High Court); Sri Dinadayal Rabha and 48 others Vs. The State of Assam
and 6 others W.A. No. 183/2017 (Gauhati High Court); State of Uttar
Pradesh and others Vs. Arvind Kumar Srivastava and others, (2015) 1
SCC 347; Shoeline Vs. Commissioner of Service Tax and others, (2017)
16 CC 104; Booz Allen and Hamilton Inc Vs. SBI Home Finance Limited
and others, (2011) 5 SCC 532; Satrucharla Vijaya Rama Raju Vs.
Nimmaka Jaya Raju and other, (2006) 1 SCC 212; and State of Bihar Vs.
Radha Krishhna Singh and others, (1983) 3 SCC 118.
9. Learned counsel for respondent No. 2 submits that Revised
Merit List, considering all similarly situated candidates, has been rightly
issued by respondent No. 2-Commission in consonance with order passed
by the Tribunal, whereby direction was issued to proceed further according
to report of State Level Board of Equivalence Committee and the direction
was in rem, but not in personam.
10. Learned counsel for respondent No. 2 to justify the decision
and action, has referred pronouncement of the Supreme Court in Civil
Appeal No. 4134 of 2022, titled Rushibhai Jagdishchandra Pathak Vs.
Bhavnagar Municipal Corporation.
11. Conclusion of legal principles relevant to present case,
summed up in case of State of Uttar Pradesh and others Vs. Arvind
Kumar Srivastava and others, (2015) 1 SCC 347, reads as under:-
"22.1 The normal rule is that when a particular set of employees is
given relief by the Court, all other identically situated persons need
to be treated alike by extending that benefit. Not doing so would
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amount to discrimination and would be violative of Article 14 of the
Constitution of India. This principle needs to be applied in service
matters more emphatically as the service jurisprudence evolved
by this Court from time to time postulates that all similarly situated
.
persons should be treated similarly. Therefore, the normal rule
would be that merely because other similarly situated persons did
not approach the Court earlier, they are not to be treated
differently.
22.2 However, this principle is subject to well recognized
exceptions in the form of laches and delays as well as
acquiescence. Those persons who did not challenge the wrongful
action in their cases and acquiesced into the same and woke up
after long delay only because of the reason that their counterparts
who had approached the Court earlier in time succeeded in their
efforts, then such employees cannot claim that the benefit of the
judgment rendered in the case of similarly situated persons be
extended to them. They would be treated as fence-sitters and
laches and delays, and/or the acquiescence, would be a valid
ground to dismiss their claim.
22.3 However, this exception may not apply in those cases where
the judgment pronounced by the Court was judgment in rem with
intention to give benefit to all similarly situated persons, whether
they approached the Court or not. With such a pronouncement the
obligation is cast upon the authorities to itself extend the benefit
thereof to all similarly situated person. Such a situation can occur
when the subject matter of the decision touches upon the policy
matters, like scheme of regularisation and the like (see K.C.
Sharma & Ors. v. Union of India (supra). On the other hand, if the
judgment of the Court was in personam holding that benefit of the
said judgment shall accrue to the parties before the Court and
such an intention is stated expressly in the judgment or it can be
impliedly found out from the tenor and language of the judgment,
those who want to get the benefit of the said judgment extended to
them shall have to satisfy that their petition does not suffer from
either laches and delays or acquiescence.
12. After rejection of candidature, petitioners approached the
Tribunal, assailing the rejection of their candidature on the ground that their
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training in a particular Diploma/Trade was equivalent to the essential
qualification prescribed for the post of Pump Operator. The Tribunal instead
of adjudicating the issue of eligibility of individual candidate or petitioners,
.
had referred the matter to the State Level Board of Equivalence Committee,
which had submitted report with respect to equivalence of certificate
Trades/Diplomas with essential qualification prescribed for the post of Pump
Operators. After receiving the report of equivalence from the Equivalence
Committee, the Tribunal directed the respondents to proceed further in the
matter in accordance with report of Equivalence Committee, but without any
specific direction in favour of petitioners and without confining the
consideration of report of Equivalence Committee only to the petitioners.
The directions passed by the Tribunal are general in nature and are
applicable to all candidates. As a matter of fact, the Tribunal had not
adjudicated the eligibility of the petitioners, but had determined the
equivalence of certificates Trades/Diplomas with the essential qualification
prescribed for the post of Pump Operators and had directed the respondents
to proceed further according to the Equivalence Committee's Report.
Therefore, in my opinion, judgment passed by the Tribunal is a judgment in
rem and not a judgment in personam.
13. The Tribunal had adjudicated the issue of equivalence of trade,
but not the eligibility of individual candidate and has issued directions to the
respondents to act upon according to report of Equivalence Committee, but
did not pass an order to consider the petitioners as eligible candidates by
adjudicating their eligibility individually. An interim order, directing the
party(ies) to do or omit to do any act during pendency of petition, is always
subject to final outcome of the petition. In present case also the Tribunal
would have directed to consider the petitioners eligible to the posts with
further direction to consider them eligible and recommend their names
according to their individual merit, then definitely posts kept vacant in
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furtherance to interim order passed by the court would have been offered to
the petitioner(s). However in present case, there is a general direction by
the Tribunal to proceed further according to Report of Equivalence
.
Committee. Therefore, vacant post(s) is/are to be offered to candidates in
merit as per revised merit list in consonance with the order passed by the
Tribunal. Unless specifically directed by the Court/Tribunal, the post(s) kept
vacant, as interim measure, have to be offered to the candidates in merit on
the basis of Revised Merit List prepared in consonance with the order of the
Tribunal.
14. In view of above of above discussion, I find no merit in the
Execution Petitions and the same are dismissed with observation that
respondents have rightly executed the order passed by the Tribunal in term
of its essence and mandate.
Pending application(s), if any also stand disposed of.
(Vivek Singh Thakur),
th
25 November, 2022 Judge.
(Keshav)
