Ankush vs State Of H.P. And Others A/W Connected ...
2024 Latest Caselaw 10288 HP

Himachal Pradesh High Court

Ankush vs State Of H.P. And Others A/W Connected ... on 25 July, 2024

Author: Vivek Singh Thakur

Bench: Vivek Singh Thakur

Ankush Versus State of H.P. and others a/w connected matters

Ex. Petition (T) No.14 of 2024 a/w

.

Ex. Petition (T) Nos.15 & 109 of 2024,

Ex. Petition Nos.130, 132, 133, 134, 136, 137, 145, 237, 378, 380, 465, 553, 625 and 698 of 2024

25.07.2024 Present: Mr. Ankush Dass Sood, Senior Advocate with Mr. Rajneesh K. Lal and Mr. Vivek Thakur, Advocates, for the petitioners in

Ex. Petition(T) Nos.14 & 15 of 2024, Ex. Petition Nos.130, 132, 133, 134, 136, 137, 145, 237, 465 and 553 of 2024.

Mr. Ankit Dhiman, Advocate, for the petitioner in Ex. Petition(T) No.109 of 2024.

Mr. Parv Sharma and Mr. Shekhar Badola, Advocates, for the petitioners in Ex. Petition Nos.378 and 380 of 2024.

Mr. Sanjeev Bhushan, Senior Advocate with Mr. Sohail Khan, Advocate, for the

petitioners in Ex. Petition No.625 of 2024.

Mr. Abhimanyu Rathor, Advocate, for the petitioner in Ex. Petition No.698 of 2024.

Mr. Anup Rattan, Advocate General, with Mr. Ramakant Sharma, Mr. Rakesh Dhaulta and Mr. Sushant Keprate, Additional Advocates General, for respondents No.1 and 3-State, in all the petitions.

Mr. Dikken Kumar, Ms. Suchitra Sen, Mr. Sanjeev Kumar Motta, Mr. Rajinder Thakur and Mr. Angrez Kapoor, Advocates, for respondent No.2- H.P. Staff Selection Commission [now Himachal Pradesh Rajya Chayan Aayog], in all the petitions.

Ex. Petition (T) No.14 of 2024 a/w

.

of 2024, Ex. Petition Nos.130, 132,

133, 134, 136, 137, 145, 237, 378, 380, 465, 553, 625 and 698 of 2024

In these Execution Petitions, issue

related to the process of recruitment to the post of

Junior Office Assistant (Information Technology) [in

short JOA(IT)] is involved.

2. Firstly, vide Advertisement No. 30 of

2015, on the basis of requisition sent by the State/

Department, the Himachal Pradesh Staff Selection

Commission had initiated the process for recruitment

to the post of JOA(IT) by allotting Code 447 to the

post. During said process, a dispute arose regarding

the determination of eligibility with reference to one

of essential qualification prescribed for the post in

R&P Rules 2014 framed for the recruitment to the

post of JOA(IT) which reads as under:-

"One year Diploma in Computer Science/ Compute Application/Information Technology from a recognized University/ Institution."

3. On approaching by one set of

candidates, claiming them eligible, the Erstwhile H.P.

State Administrative Tribunal had permitted them to

participate in the process provisionally. During the

pendency of petition, High Level Equivalence

.

Committee was formed by the State and on the basis

of the reports submitted by the said Committee, on

21.8.2017 the State Government directed the

Commission to go ahead with recruitment process in

terms of decision taken by Equivalence Committee.

The aforesaid decision was subsequently approved by

the Cabinet vide order dated 18.9.2017.

4. During the interregnum another

Advertisement dated 18.10.2016 was issued by the

Commission on the basis of requisition sent by the

State Government/Department to fill-up the same

post i.e. JOA(IT) with the Post Code 556. During this

recruitment process also, it was clarified by the

State/Department vide communication dated

19.3.2018 sent to the Commission, that eligibility of

candidates was to be determined on the basis of

report of Equivalence Committee as clarification

earlier issued vide communication dated 21.8.2017.

5. Vide Advertisement dated 21.9.2020,

another process for recruitment to the same post

(Post Code 817) was initiated by the Commission on

the basis of requisition sent by the State

Government/Department. Some posts at the time of

.

closure of recruitment process initiated vide

Advertisement dated 18.10.2016 with Post Code 556,

remained unfilled. Those posts were also included in

the Advertisement dated 21.9.2020.

6. Before initiation of the recruitment

process vide Advertisement dated 21.09.2020, R&P

Rules were modified and essential qualification in

reference was modified by omitting the essential

qualification in reference with following essential

qualification:-

"(a) ESSENTIAL QUALIFICATION(S):

(i) Should have passed 10+2 from a

recognized Board of School Education/University.

OR Matriculation from recognized Board of

School Education with one/two year's Diploma/Certificate from an Industrial Training Institute (ITI) in Information Technology Enabled Sectors (ITES) as notified by Director General of Employment & Training (Govt. of India) from time to time or three years Diploma in Computer Engineering/Computer Science/IT from Polytechnic as approved by All India Council for Technical Education (AICTE)."

7. Petitioners herein in these Execution

Petitions had applied to the post in reference

advertised through second Advertisement No. 32-3/

2016 dated 18.10.2016 with Code 556 [JOA(IT)].

During this process, vide Notification dated

23.9.2019 final result on the basis of objective test

.

etc. was declared by the Commission wherein names

of petitioners were not there amongst selected

candidates. On enquiry, they were informed that

their applications were rejected for want of valid

qualification for the purpose of appointment to the

post in reference. The said rejection was assailed by

petitioners by filing Original Application(s) before the

Erstwhile H.P. State Administrative Tribunal, which

on abolition of Erstwhile H.P. State Administrative

Tribunal, were registered as CWPOA. One such

CWPOA No.20 of 2019 came for consideration before

learned Single Judge and on the basis of material on

record, learned Single Judge had held that act of

respondents-Commission declaring the petitioners to

be ineligible for consideration to the post in issue was

highly arbitrary and bad with observation that there

was no material placed on record by the Commission

to substantiate that diplomas possessed by the

petitioners or the Institutions from which diplomas

have been gained by petitioners are either bad or

not recognized especially when the respondents-

Commission was in possession of diplomas of

petitioners. The CWPOA No. 20 of 2019 was allowed

.

on 19.03.2021 with following operative portion:-

"14. In these circumstances, the act of the respondent-Commission of holding the

petitioners to be ineligible for consideration to the post in issue, is highly arbitrary.

15. Accordingly, this writ petition is allowed to the extent that rejection of the candidature of petitioners by respondent-Commission is

held to be bad and respondent-Commission is directed to reassess the candidature of petitioners, for the post in issue on the basis of merit secured by them in the recruitment process. In case, the petitioners are eligible r for appointment, then the same be offered to them against unfilled/vacant post, without

disturbing the appointed candidates......."

8. Other similar petitions were also decided

on the same line. The judgments in some cases were

assailed by Commission/State by filing LPAs,

whereas in some cases no LPA was preferred. Some

LPAs preferred by Commission/State were dismissed

vide judgment dated 31.12.2021 passed by

Division Bench in CWP No. 3894 of 2021 titled Reena

Kumari vs. State of HP and others with connected

matters. Thereafter, pending CWPOAs and LPAs were

decided in terms of judgment dated 31.12.2021

passed in Reena Kumari's case.

9. It is apt to record that there was another

set of petitioners who, being aggrieved by process/

criteria adopted by the respondent-Commission to

determine the eligibility on the basis of above referred

.

unamended essential qualification provided in R&P

Rules 2014, had approached the Court and writ

petitions preferred by them were also connected with

aforesaid Reena Kumari's case. All those petitions/

LPAs were related to recruitment process initiated by

the Commission to the post of JOA(IT) under Code

447 in the year 2015 and under Code 556 in the year

2016.

10. The Division Bench, in its common

judgment dated 31st December, 2021 had passed

following directions:-

"33. Thus, the HPSSC is directed to re-cast the merit list for JOA 556 by including all categories of candidate as was done for JOA 447 on the basis of decision of

Government dated 21.8.2017/18.9.2017 and further made applicable to JOA 556 vide communication 19.3.2018 except the candidates with higher qualification, who have already been held ineligible vide judgment dated 29.8.2019 of a Division Bench of this Court in CWP 161/2019. These selections for JOA 556 shall be made by taking into account the entire number of vacancies advertised for JOA 556 and the decision of the Government/HPSSC to close the selection procedure for JOA 556 is set aside and quashed.

34. Since the Common R&P Rules stand amended by 2020 Rules and the cause of persistent confusion for the time being appears to have been removed, as a necessary consequence selection for JOA 817 shall take place in accordance with 2020 Rules, however, the selection process shall not include the selection for posts which were left over from advertised posts

of JO 556 as the said posts have already been directed to be filled through selection

.

process of JOA 556.

35. In view of above discussion and directions, all the petitions considered herein are decided accordingly."

11. LPAs 41/2021, 42/2021, 43/2021,

62/2021, 63/2021,64,2021,70/2021, 71/2021,

117/2021 to 126/2021 filed by HPSSC or/and the

State Government were also dismissed, vide above

referred common judgment dated 31.12.2021 and the

judgments passed by learned Single Judge were

upheld subject to modification that directions issued

in said judgments shall be read in consonance with

the directions issued hereinabove by this Court.

12. Aforesaid judgment dated 31st

December, 2021 was assailed by one Ankita Thakur

by the selected and appointed candidates which was

decided by the Supreme Court vide judgment dated

9th November, 2023 passed in Civil Appeal No. 7602

of 2023 (@SLP(C) No. 730/2022) titled Ankita Thakur

vs. HP Staff Selection Commission along with

connected Civil Appeals No. 7603 of 2023 (@SLP (C)

No.729/2022), 7604 of 2023 (@SLP (C)

No.4321/2022), 7605 of 2023 (@SLP (C)

No.9977/2022) and 7606 of 2023 (@SLP(C)

No.17676/2022). Operative portion of said judgment

.

reads as under:

"44. Upon consideration of the rival submissions and having regard to: (a) that

appointments were made after taking written and computer typing test of the candidates; (b) that there is no specific allegation of nepotism or mala fides in making such appointments; (c) that nature of the post does not require a high degree

of technical skill; (d) the length of period during which the appointments have continued; and (e) that there is no clarity whether such appointees were duly served with notice of the proceeding before the r High Court, or whether a specific challenge

was laid to their eligibility individually, we are of the considered view that even if such appointments were made taking aid of the relaxation order dated 21.08.2017, it would not be in the interest of justice to

disturb those appointments made under the first advertisement (Post Code 447). As regards adjustment of the appellants (i.e., petitioners in SLP (C) No. 4321 of 2022)

against vacancies that might have arisen subsequent to appointment against the advertised vacancies is concerned, in our

view, it would not be appropriate as those vacancies would have to be filled after a fresh advertisement and in accordance with the extant Rules.

45. In light of the aforesaid discussion and conclusion, we direct/order as under:

"(i) The relaxation/clarificatory order dated 21.08.2017, as approved by the State cabinet on 18.09.2017, being after the last date fixed by the advertisements dated 13.02.2015 (i.e., for Post Code 447) and dated 18.10.2016 (for Post Code 556) for receipt of applications from candidates, is not legally sustainable qua those posts (i.e., Post Codes 447 and 556), particularly, when no opportunity was afforded to similarly placed persons, who might have been left out, to apply and compete with those candidates who, though not eligible as per the terms of the advertisement, had applied thereunder;

(ii) The direction(s) contained in paragraphs 33 and 34 of the

.

impugned judgment of the High

Court setting aside the closure of the selection process for Post Code 556 and to re-cast the merit list as well as fill up remaining posts of

Post Code 556, with the aid of relaxation/clarification dated 21.08.2017/18.09.2017 read with communication dated 19.03.2018, after segregating it from those advertised as Post Code 817, are set

aside. In consequence, (a) the merit list prepared under the second advertisement for Post Code 556 shall not be re-drawn by including such candidates who, though r not eligible, became eligible pursuant

to relaxation/clarificatory order dated 21.08.2017/18.09.2017 read with communication dated 19.03.2018; and (b) there shall be no segregation of seats advertised

under the third advertisement dated 21.09.2020 for Post Code 817. Thus, recruitment for Post Code 817 shall be strictly in accordance with the

extant Rules (i.e., 2020 Rules), as notified.

(iii) The appointments already made under the first advertisement (for Post Code 447) shall not be disturbed merely because some of the

appointees may have gained eligibility based on the order of relaxation/clarification dated 21.08.2017, which was approved by the State cabinet.

46. All the appeals are disposed of in the aforesaid terms. Pending application(s), if any, are also disposed of. There is no order as to costs."

13. Petitioners had and have approached

this Court by filing these Execution Petitions with

claim that judgment passed by learned Single Judge

directing the Commission to re-assess the

candidature of petitioners on the basis of merit

secured by them in the recruitment process related to

.

the Post Code 556, which was affirmed by the

Division Bench vide judgment dated 31st December,

2021 has not been interfered with or modified by the

Supreme Court, and further that issue involved in

other petitions filed with reference to essential

qualification referred supra contained in Rules 2014

was related to determination of candidature with

reference to report of Equivalence Committee and

thus the direction of learned Single Judge, affirmed

by Division Bench, has neither been assailed nor

interfered by the Supreme Court and, therefore,

direction to re-assess their candidature on the basis

of merits secured by them is in existence and

enforceable and, therefore, it has been prayed that

respondents-Commission be directed to re-asses the

candidature of petitioners and in case they are found

eligible and in merit, appointment be offered to them

against the vacancies advertised in the year 2016

with Post Code 556.

14. It is the claim of petitioners that

judgment passed by learned Single Judge in their

favour was upheld by the Division Bench with

modification that same shall be subject to directions

.

passed by the Division Bench in judgment dated 31st

December, 2021 and the Supreme Court vide

judgment dated 9th November, 2023 passed in Civil

Appeal No. 7602 of 2023 and connected appeals has

not disturbed the findings and directions passed by

learned Single Judge but has only set aside the

directions passed by the Division Bench in paras 33

and 34 of the judgment dated 31st December, 2021

however without touching and disturbing the

direction passed by learned Single Judge to re-assess

the candidature of petitioners.

15. It has been submitted that claim of

petitioners is not based on relaxation/clarificatory

order dated 21st August, 2017, which was approved

by the State Cabinet on 18.9.2017 and was reiterated

vide communication dated 19.3.2018 during the

process to fill-up the posts with Code 556. It has

been submitted that their claim is independent of

aforesaid relaxation/clarificatory order but against

the arbitrary rejection of their candidature without

affording them opportunity and considering the

ineligible candidates eligible to the Post Code 556

and, therefore, it has been prayed that Commission

.

be directed to re-assess the candidature of petitioners

in terms of judgment passed by learned Single Judge.

16. Plea of the petitioners is that in their

matters there was and is no SLP preferred in these

cases and relief granted to them by learned Single

Judge, affirmed by the Division Bench was altogether

different than the issue raised before the Supreme

Court in Civil Appeal No. 7602 of 2023 and other

connected Civil Appeals.

17. It has been also submitted that as per

Advertisement dated 21.9.2020, vacancies notified

under Code 817 are subject to increase or decrease

and, therefore, no one has vested right to claim

appointment by referring number of post as

mentioned in Advertisement or Corrigendum issued

subsequently as number advertised posts under

Code 817 has already altered by the State/

Commission by increasing and decreasing the same

by issuing Corrigendum on account of fresh

requisition and withdrawal of requisition by the

Department/State.

18. Some of the Execution Petitions, seeking

.

implementation of judgment passed by Learned

Single Judge, directing the Commission to re-assess

the eligibility of the candidates, have been disposed of

by Learned Single Judge, directing to implement the

judgment within a period of 12 weeks. The said

direction has not been assailed by anyone.

r Operate

portion of one of such order, passed in Execution

Petition (T) No.2 of 2024, titled as Amit Kumar

Sharma v. State of Himachal Pradesh, reads as

under:-

"3. Having heard learned counsel for the petitioner as also learned Advocate General and learned counsel for respondent No.2, as

now the State Government is bound to implement the directions passed by this Court, as affirmed by Hon'ble Supreme Court of India in Para-45 of its judgment, therefore,

this Execution Petition is disposed of by directing the respondents to implement the same within a period of twelve weeks. In case, needful is not done, then the petitioner shall be at liberty to file an application for revival of these proceedings. Pending miscellaneous applications, if any, stand disposed of."

19. In aforesaid backdrop, after hearing the

parties for considerable time as agreed in order to

resolve the issue involved in present petitions, it is

considered appropriate that Himachal Pradesh Rajya

Chayan Aayog, Hamirpur, shall reassess the

eligibility of the Execution Petitioners, in whose

favour, there is judgment passed by Learned Single

.

Judge to reassess the eligibility along with merit, by

giving them opportunity of personal hearing on

27.07.2024 and decide the same by passing a

speaking and reasoned order and thereafter report of

such exercise be placed before this Court on

30.07.2024. r

20. Learned counsel for the petitioners in all

Execution Petitions, pending or decided, have

undertaken to ensure presence of the Execution

Petitioners in the Office of Administrative Officer of

Himachal Pradesh Rajya Chayan Aayog, Hamirpur,

on 27.07.2024 at 11:00 a.m.

21. In case, some candidate(s) for valid

reasons, is/are unable to attend the Office of

Administrative Officer of the Himachal Pradesh

Rajya Chayan Aayog, Hamirpur, on aforesaid date,

he/she may appoint/authorize in writing someone

else to attend the Office along with original

certificates of the petitioners on that day.

22. At this stage, it has been informed that

some Writ Petitions filed in the year 2019 along with

the already decided matters, to which present

Execution Petitions relate, are pending adjudication.

.

In case in aforesaid writ petitions, identical claim and

issue is involved and petitioners herein have

approached the Court immediately after their

rejection within reasonable time, then, Himachal

Pradesh Rajya Chayan Aayog, Hamirpur, shall on

approaching by such candidate(s) on the aforesaid

date already fixed hereinabove, to re-assess their

eligibility also in terms of direction passed by Learned

Single Judge, in order to ensure finality of the

dispute/lis in present litigation.

23. It has also been submitted that some

similar Execution Petitions filed to implement

identical direction, which are pending, have not been

listed today before this Court. Petitioners in all such

Execution Petitions, being similarly situated shall be

given same treatment by the Himachal Pradesh Rajya

Chayan Aayog, Hamirpur, on approaching the Aayog

on aforesaid date.

24. It is clarified that aforesaid

re-assessment of candidature shall be done with

respect to only those candidates, who had or have

filed writ petitions/Execution Petitions, which are

either pending or have been disposed of by this

.

Court.

25. Needless to say that eligibility is to be

assessed on the basis of documents already on

record with Himachal Pradesh Rajya Chayan Aayog

and no document, which is not on record of the

Himachal Pradesh Rajya Chayan Aayog, has to be

taken into consideration.

26. List on 30.07.2024.

(Vivek Singh Thakur) Judge

(Ranjan Sharma)

Judge July 25, 2024 [Bhardwaj]