Rahul Patial & Ors vs State Of H.P. & Ors
2023 Latest Caselaw 13415 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

Civil Writ Petition No. 1453 of 2021.

Date of decision: 13th September, 2023.

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Rahul Patial & Ors. ...Petitioners.

Versus

State of H.P. & Ors. ....Respondents.

Coram:

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1

For the Petitioners: Mr. Onkar Jairath, Advocate, with

Mr. Piyush Mehta, Advocate.

For the Respondents: Ms. Priyanka Chauhan, Dy. A.G.

Satyen Vaidya, Judge (Oral).

By way of instant petition, the petitioners have

sought directions against the respondents to grant the

appointment to the petitioners w.e.f. 21.12.2019 i.e. the date

on which other incumbents who participated in the same

selection process had been appointed.

2. The case as set out in the petition is that

respondent No.2 initiated recruitment process for the posts of

Constables vide notification dated 3rd March, 2019.

Petitioners participated in the selection process and they were

Whether reporters of the local papers may be allowed to see the judgment?

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selected. Petitioners No.2 and 3 were selected and appointed

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to the post of Constable (GD) under the reserved category,

whereas petitioner No.1 was not selected. There was a tie of

scores between petitioner No.1 and the last selected

candidate, who was selected being elder in age.

3. It is the case of the petitioners that the

respondents in an illegal and arbitrary manner had migrated

those incumbents belonging to reserved categories who had

applied for the post of constable by availing the relaxation in

standards of age and fee, to the unreserved category and as

a consequence petitioner No.1 had to face ouster.

4. Petitioner No.1 had approached this Court by way

of CWP No. 3088 of 2019 seeking redressal of his grievance.

Vide judgment dated 2.11.2010 passed in CWP No. 3088 of

2019, the Hon'ble Division Bench of this Court passed the

following orders:-

"Respondent No.5 having admittedly taken the benefit of relaxation in age limit is required to be shifted from general category merit list to the merit list of male OBC (unreserved). If in such process respondent No.7 gets adversely affected, even then the logical consequence flowing from migration of respondent No.5 from general category merit list to

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OBC (unreserved) merit list cannot be halted. We

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accordingly allow this writ petition by directing

respondents No.1 to 4 to re-draw the merit list of provisionally selected male general (unreserved)

category for recruitment of police Constables in District Una, batch-2019, by shifting respondent No.5 Shubham Chaudhary to his appropriate place in the merit list of male OBC (unreserved) category in light

of the observations made hereto before. Entire process be completed within a period of two weeks from today."

5.

In compliance to aforesaid judgment passed by

Hon'ble Division Bench of this Court, the petitioners were

offered appointments vide appointment orders dated 5 th

December, 2020 and their date of appointment was also

nominated to be the same i.e. 5th December, 2020.

6. The precise cause raised by the petitioners now is

that they were denied the appointments w.e.f. 21.12.2019 on

account of acts of omission and commission on the part of the

respondents. Since, the petitioner were not at fault, their

appointment w.e.f. 5th December, 2020 instead of 21st

December, 2019 is bad in law being arbitrary and

discriminatory.

7. The respondents have filed their reply and have

submitted that as per FSSR Part-1 General Rule 17(1), an

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officer is entitled to draw the pay and allowances attached to

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his tenure of a post with effect from the date when he

assumes the duties of the post and he ceases to draw them

as soon as he ceases to discharge those duties. Further as

per Chapter XII of Punjab Police Rules as applicable to

Himachal Pradesh, the seniority of lower subordinates shall be

reckoned from the date of appointment. On such grounds the

claim of the petitioners has been opposed, though, there is no

denial to the fact situation as narrated in the petition.

8. I have heard Mr. Onkar Jairath, Advocate, for the

petitioner and Ms. Priyanka Chauhan, Dy. A.G., for the

respondents and have also gone through the entire record

carefully.

9. Judgment dated 2nd November, 2020 passed by

Hon'ble Division Bench of this Court in CWP No. 3088 of 2019

has clearly held the right of petitioner No.1 to be appointed to

the post of Constable in pursuance to selection process

initiated by respondent No.2 vide notification dated

03.03.2019. He had been deprived of the benefit of

appointment as the respondents had wrongly provided the

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benefit to an incumbent falling under a separate category.

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Petitioners No.2 and 3 are also similarly situated as petitioner

No.1. Now since the respondents have rectified the mistake

and have offered appointment to the petitioner, they cannot

be penalized without any fault on their part. The legal

position in this regard is res integra. The Hon'ble Division

Bench of this Court vide judgment dated 19th November,

2014, passed in LPA No. 170 of 2014, titled as Shri Balak

Ram vs. State of Himachal Pradesh & Ors, has held as

under:-

"7. It is admitted that the appellant-writ petitioner was denied his rights and Smt. Kala Devi was appointed

illegally. Had the respondents not appointed Smt. Kala Devi illegally at the particular point of time, i.e. on 20 th

August, 1997, the appellant-writ petitioner would have been appointed and would have been in the employment right from that date, but he was deprived

of his legitimate rights by making illegal appointment order.

8. The Apex Court in a case titled as Sanjay Dhar versus J & K Public Service Commission and another, reported in (2000) 8 Supreme Court Cases 182, has dealt with the issue and held that when a candidate is deprived of appointment illegally, he is deemed to have been appointed right from the same date. It is apt to reproduce paras 14 to 16 of the judgment herein:

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"14. ............As the appellant participated in

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the process of selection protected by the

interim orders of the High Court and was also successful having secured third position in

the select list, he could not have been denied appointment. The appellant is, therefore, fully entitled to the relief of his appointment being calculated w.e.f. the same date from

which the candidates finding their place in the order of appointments issued pursuant to the select list prepared by the J&K PSC for

1992- 93 were appointed and deserves to be assigned notionally a place in seniority

consistently with the order of merit assigned by the J&K PSC.

15. We have already noticed the

learned Single Judge having directed the appellant to be appointed on the post of Munsif in the event of his name finding place

in the select list subject to the outcome of

the writ petition which order was modified by the Division Bench in LPA staying the order of the learned Single Judge but at the same

time directing one vacancy to be kept reserved. The High Court and the Government of J&K (Law Department) were not justified in by passing the judicial order of the High Court and making appointments exhausting all available vacancies. The right of the appellant, if otherwise sustainable, cannot be allowed to be lost merely because of an appointment having been made

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wittingly or unwittingly in defiance of the

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judicial order of the High Court.

          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 the merit in the select list prepared by J&K PSC and

later forwarded to the Law Department. During the course of hearing the learned

senior counsel for the appellant made a statement at the Bar that the appellant was interested only in having his seniority

reckoned notionally in terms of this order and was not claiming any monetary benefit by way of emoluments for the period for which

he would have served in case he would have

been appointed by order dated 6-3-1995. We record that statement and direct that the appellant shall be entitled only to the benefit

of notional seniority (and not monetary benefits) being given to him by implementing this order. The appeal is disposed of accordingly. The contesting respondents shall pay the appellant costs quantified at Rs. 5,000/-."

9. A learned Single Judge of this Court in a case titled as Hem Chand versus State of H.P. & others, reported in 2014 (3) Him L.R. 1962, has taken the same

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view. It is apt to reproduce paras 3 and 4 of the

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judgment herein:

"3. Admittedly, the appointment of the petitioner was delayed for no fault of his and came to be appointed only in the year 2009, that too after the

intervention of this Court. The result of delayed appointment of the petitioner is that he has been paid less salary and denied the seniority over a long period of time. It has been consistently opined that in case a candidate is wrongly denied appointment for no fault on his part, he cannot be

denied appointment from due date and consequential seniority. Reference in this regard can conveniently be made to 1996 (8) SCC 637, Pilla sitaram Patrudu & others vs. Union of India and others, 2000 (8) SCC 182 Sanjay Dhar vs. J&K

Public Service Commission & another, 1991 (6) Vol. 76, Services Law Reporter 753, Hawa Singh

Sangwan vs. Union of India & others and 1996 (6) vol. 116, Services Law Reporter, 335, Hawa Singh and others vs. The Haryana State Electricity Board. Moreover, it is not the case of the respondents that the petitioner was not

recommended to be appointed on 26.6.2004 but the only ground taken is that it was the Pradhan, Gram Panchayat Sawindhar, Tehsil Karsog, who delayed the appointment of the petitioner. This is

the precise reason that the petitioner is entitled for the seniority from the date of offer of

appointment, as held by the Division Bench of this Court in similar circumstances, in case titled as Chatter Singh vs. State of H.P. & others, CWP No. 188 of 2012-I:-

"3. No doubt, the petitioner joined duty only on 13.5.2003. But in his favour admittedly there is an order by the Appointing Authority on 8.8.2002 to give appointment, as has been noted by the Tribunal in Annexure P-1, order. It is that order, which has been upheld by the Tribunal and the direction issued by the Tribunal is for implementing the said order. Therefore, for all purposes, the petitioner shall be deemed to be appointed on 8.8.2002,

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on the date admittedly the petitioner was

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directed to be appointed by the Sub Divisional

Magistrate. However, taking note of the fact that the petitioner has joined duly on

13.5.2003 after the order was issued to him, the entitlement of the petitioner for actual monetary benefit shall be only from 13.5.2003. In order to avoid any ambiguity, it

is made clear that the petitioner shall be deemed to be appointed in the post of Gramin Vidya Upasak on 8.8.2002 for all purposes;

but from 8.8.2002 to 13.5.2003, the benefits shall only be notional and from 13.5.2003, the

petitioner shall be entitled to all monetary benefits."

4. In view of the exposition of the law referred to

above, the petitioner is entitled to be treated as having been appointed as a Part Time Water Carrier at Government Primary School Alyas, Gram

Panchayat, Sawindhar, Karsog-II, District Mandi

from 30.6.2004, pursuant to the recommendation of the Government of H.P., as per order dated 26.6.2004 for the purpose of seniority. However,

the entitlement of the petitioner for actual monetary benefits shall be only from 9.6.2009. In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to be appointed as Part Time Water Carrier from 30.6.2004 for all purposes, but from 30.6.2004 to 9.6.2009, the benefits shall only be notional and w.e.f. 9.6.2009, the petitioner shall be entitled to all monetary benefits."

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10. Having said so, we are of the considered view

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that the impugned judgment needs to be modified by

providing that the appellant-writ petitioner is entitled to seniority notionally (not monetary benefits) right from

the date Smt. Kala Devi was appointed, i.e. 20 th August, 1997."

10. Keeping in view the exposition of law, as noticed

above, the petition deserves to be allowed. Accordingly, the

instant petition is allowed and respondents are directed to

consider the date of appointment of petitioners as 21st

December, 2019 and grant them notional benefit of seniority

(not monetary benefits), on the basis of date of appointment

as 21st December, 2019. Pending applications, if any, also

stand disposed of.

(Satyen Vaidya) Judge 13th September, 2023.

(jai)