Date Of Decision: 2.5.2025 vs The Secretary
2025 Latest Caselaw 347 HP

Himachal Pradesh High Court

Date Of Decision: 2.5.2025 vs The Secretary on 2 May, 2025

Author: Sandeep Sharma

Bench: Sandeep Sharma

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                                CWP No.439 of 2022
                                         Date of Decision: 2.5.2025
_____________________________________________________________________
Chaman Lal
                                                           .........Petitioner
                                        Versus
The Secretary, HPSSC and Anr.
                                                         .......Respondents

Coram

Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.

For the Petitioner:       Mr. Loveneesh Thakur, Advocate.
For the respondents:      Ms. Suchitra Sen, Advocate, for respondent
                          No.1.
                          Mr. Shashi Kumar Shishoo, Advocate, for
                          respondent No.2.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)

By way of present petition, petitioner has prayed for

following main reliefs:

"I. The impugned order dated 22/10/2021 Annexure P-5, may kindly be held illegal, unconstitutional, arbitrary and against the principle of natural justice and same may kindly be quashed and set aside.

II. That in the peculiar facts and circumstances of the case, the respondent may very kindly be directed to grant regularization to the petitioner with effect from the date of other three incumbents were regularized.

III. That such direction may kindly be issued to the Registrar to release the all consequential benefits and pay fixation, seniority to the petitioner in accordance with law."

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2. Precisely, the facts of the case as emerge from the record

are that process was initiated by respondent-Commission to fill up

four posts of Junior Officer (Personnel & Administration) vide

advertisement dated 16.5.2016. Posts of Junior Officer (Personnel &

Administration) at S.O. Level were in the pay scale of Rs. 10900-

34800+GP Rs. 4350 (PB-3) with basic pay of Rs. 15,250/-per month.

Petitioner herein being fully eligible applied for the said post. Vide

communication dated 31.3.2018, Under Secretary Himachal Pradesh

Staff Selection Commission, Hamirpur, District Hamirpur, Himachal

Pradesh, asked the petitioner to submit degree of MBA in (PM/HR) on

or before 10.4.2018, failing which it will be presumed that he does not

possess requisite qualification and his candidature for the post in

question shall stand rejected.

3. After receipt of aforesaid communication, petitioner

forwarded copy of Diploma to the Commission through email. After

receipt of aforesaid diploma, nothing was heard by the petitioner from

Commission, as such, he was expecting that being fully eligible, he

would be declared selected. Result of process in question was declared

by the respondent-Commission, but therein, name of the petitioner

was not included amongst the selected candidates. Subsequently,

petitioner came to know that his candidature stood rejected on the

ground that information sought from him vide communication dated

31.3.2018, was not made available to the Commission by him within

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the stipulated time. In the afore background, petitioner approached

this Court by way of CWPOA No. 61 of 2019, titled Chaman Lal v. The

Secretary, Himachal Pradesh Staff Selection Commission Hamirpur

and Anr., which ultimately came to be allowed vide Judgment dated

15.3.2021 (Annexure P-1). Coordinate Bench of this Court having

found merit in the afore writ petition passed following directions:

"10. Therefore, in these circumstances, rejection of candidature of the petitioner by respondent-Commission cannot be sustained in law and the same is accordingly quashed and set aside. Respondent-Commission is directed to consider the candidature of the petitioner for the post of Junior Officer (Personnel & Administration) against lying vacant post belong to O.B.C. Category. For the assistance of the Commission, the petitioner shall supply a hardcopy of the details of his educational qualifications within 15 days from today. Thereafter, the candidature of the petitioner shall be considered by the respondent-Commission in accordance with law and in accordance with the Recruitment and Promotion Rules and appropriate decision upon the same shall be taken by it on or before 30.04.2021. The petition stands disposed of in above terms, so also pending miscellaneous applications, if any. No order as to costs."

4. Though in terms of aforesaid order passed by the

coordinate Bench of this Court, Respondent-Commission after having

considered candidature of the petitioner against vacant post belonging

to OBC category, offered him appointment, but not from due date.

5. Precisely, the grouse of the petitioner, as has been

highlighted in the petition and further canvassed by Mr. Loveneesh

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Thakur, learned counsel for the petitioner is that though in terms of

judgment dated 15.3.2021, candidature of the petitioner ought to have

been considered from the date of selection, but petitioner herein has

been offered appointment from the date of issuance of appointment

letter dated 14.6.2021 (Annexure P-2). Mr. Loveneesh Thakur,

vehemently argued that once there was no fault, if any, of the

petitioner and such stand of him stands vindicated with the passing of

judgment dated 15.3.2021, in the earlier writ petition having been filed

by him, he could not have been denied appointment from the date

when candidates of same selection process were offered appointment.

He further submitted that though petitioner herein on account of his

having not worked against the post in question till his joining

pursuant to appointment letter dated 14.6.2021 (Annexure P-2), may

not be entitled to financial benefits, but admittedly he is entitled to

benefit of seniority on notional basis from due date.

6. Mr. Shashi Shirshoo, learned counsel for respondent No.2

while opposing the aforesaid submission made by the petitioner

vehemently argued that once petitioner came to be appointed in the

year 2021 pursuant to directions issued by the coordinate Bench of

this Court in the petition detailed herein above, no illegality can be

said to have been committed by the respondents while assigning

seniority to the petitioner from the date of the appointment. He

submitted that entire selection process was conducted by the

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respondent-Commission and inaction, if any, on the part of the

commission in not considering the documents submitted by the

petitioner, cannot be a ground for this Court to issue direction to the

respondents to accord seniority to the petitioner from the back date

when he was not borne in the cadre.

7. Ms. Suchitra Sen, Advocate, for respondent-Commission

adopted the arguments advanced by Mr. Shashi Shirshoo, learned

counsel for the respondent-Corporation.

8. Having heard learned counsel for the parties and perused

material available on record, this Court finds that coordinate Bench of

this Court vide judgment dated 15.3.2021, found action of the

respondent commission in not considering the documents submitted

by the petitioner pursuant to communication dated 31.3.2018, to be

bad in law and accordingly, directed it to ensure that petitioner is

given appointment as Junior Officer against the vacant post under

OBC category. Though in compliance to aforesaid direction issued by

the coordinate Bench of this Court, respondent-Commission

recommended the name of the petitioner for appointment against the

post of OBC category, but admittedly, petitioner herein came to be

given appointment against the post in question vide communication

dated 14.6.2021, whereas in the cases of other similarly situate

persons, who had participated in the same selection process with the

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petitioner pursuant to advertisement issued in the year 2016,

appointment has been offered in year 2018.

9. Though learned counsel for the respondents attempted to

argue that since petitioner herein came to be held entitled for

appointment against the post in question after passing of judgment

dated 15.3.2021, he cannot claim appointment from the back date but

this court is not persuaded to agree with afore submission of learned

counsel for the respondents for the reason that though petitioner was

fully eligible to be given appointment against the post advertised in the

year 2016, but yet for unjustifiable reasons and on account of

omission on the part of the respondent-Commission, he was not given

appointment in the year 2018. Had respondent-Commission

considered the document furnished by the petitioner pursuant to

communication dated 31.3.2018, he would have been selected in the

year 2018 alongwith other eligible candidates, but on account of

aforesaid omission on the part of the respondent-Commission,

petitioner was compelled to approach this court by way of CWPOA No.

61 of 2019, which ultimately came to be decided vide judgment dated

15.3.2021. Coordinate Bench of this Court having found inaction on

the part of the respondent commission not only directed the

respondents to consider the documents furnished by the petitioner,

but also gave specific direction to appoint him against vacant post

under OBC category. Careful perusal of afore judgment dated

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15.3.2021, clearly suggests that at the relevant time, Court was fully

convinced and satisfied that petitioner was fully eligible to be

considered against the post advertised in the year 2016. If it is so,

petitioner is entitled to be given seniority from the date other similarly

situate persons were given seniority.

10. True it is that petitioner cannot be held entitled to

monetary benefits for period he did not work, but since there was no

fault, if any, of the petitioner and he was wrongly denied appointment

in the year 2018, he is very much entitled to seniority on notional

basis from that date.

11. At this stage, it would be apt to take note of judgment

dated 12.12.2019 passed by this Court in CWPOA No. 2059 of 2019,

titled Ajay Kumar Kapoor v. State of Himachal Pradesh and Ors.,

wherein, in similar facts and circumstances, direction came to be

issued to the respondents in that case to grant seniority to the

petitioner therein, from the date he was actually eligible for

appointment against the post in question. In the afore judgment this

Court taking note of various judgments passed by the Hon'ble Apex

Court held that seniority as well as consequential benefits to which

otherwise a person is eligible cannot be denied to him on account of

fault on the part of the department.

"13. Had this Court having taken note of glaring mistake committed by the interviewing Board at the time of carrying out selection process in terms of recruitment notice dated

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17.7.2012, proceeded either to quash the entire selection process or issued direction to offer appointment to the petitioner among other selection candidates in his category, petitioner would have definitely got the benefits as are now being enjoyed by other persons selected in terms of recruitment notice dated 17.7.2012.

14. Appointment of the petitioner got delayed on account of no fault of him, rather fault, if any, is of the department, as has been taken note hereinabove, and as such, petitioner cannot be allowed to suffer further on account of denial of seniority to him by the respondent-department.

15. Reliance is placed upon the judgment rendered by this Court in case, titled Hem Chand versus State of Himachal Pradesh & others, 2014(3) Him. L.R.1962, wherein it has been held as under:-

"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

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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 appoin tment, as held by the Division Bench of this Court in similar circumstances, in case titled as Chattar 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, on the date admittedly the petitioner was 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

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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.

16. Reliance is also placed upon the judgment rendered by Division Bench of this Court in Shri Balak Ram versus State of Himachal Pradesh, Latest HLJ 2014(HP) Suppl.231, wherein it has been held as under:

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:

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

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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 bypassing 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 wittingly or unwittingly in defiance of the 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

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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/-."

17. It is quite apparent from the aforesaid exposition of law laid down by this Court that seniority as well as consequential benefits to which otherwise person entitled cannot be denied to him/her on account of fault of department. In the present case, fault, if any, was not of the petitioner, rather it is quite apparent from the record that his selection got delayed on account of arbitrariness of the interview Board and as such, he is entitled to be treated at par with the candidates, who were selected pursuant to recruitment notice dated 17.7.2012.

18. There is no force in the argument of learned Additional Advocate General that in terms of notification dated 17.6.2016, issued by the Finance Department, Government of Himachal Pradesh, constable appointed on or after 01.01.2015 would only be entitled for the pay structure of Rs.10300-34800+3200 GP on completion of eight years of regular service because in the case at hand though the petitioner came to be appointed as Constable on 20.8.2015 vide Annexure A-2, but as has been observed hereinabove, his selection for all intents and purposes is deemed to be in terms of recruitment notice dated 17.07.2012 and as such, notification as referred above, cannot be made applicable in the case of the petitioner."

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12. Reliance is also placed upon judgment dated 24.3.2022,

rendered by the Division Bench of this Court in CWP No. 7794 of 2021

titled Sushil Kumar Sharma v. State of Himachal Pradesh and Ors.,

relevant paras whereof read as under:

"Observations: -

4. Having heard learned counsel for the parties, we are inclined to accept the prayer made by the petitioner.

4(i) It is not in dispute that the petitioner was allowed to participate in the counselling pursuant to the order dated 28.01.2014 passed in CWP No.784 of 2014. Accordingly, he participated in the counselling on 17.02.2014 alongwith various other candidates including the ones, who were registered in the Employment Exchange Kinnaur. In the order dated 28.01.2014, this Court though had directed the respondents to allow the petitioners (therein) to participate in the selection process, however, their result was not to be declared, but was to be produced in the sealed cover. Consequently, the petitioner though participated in the counselling held on 17.02.2014 alongwith various other candidates, but his result was not declared. The result of other candidates, who were registered in the Employment Exchange Kinnaur, was declared and they joined in February/March 2014. CWP No.784 of 2014 and other similar writ petitions were eventually decided by the Tribunal on 02.11.2016. In this order, the condition in the advertisement that "only those registered in the employment exchanges within the districts shall be eligible to apply", was held to be bad. The respondents were directed to consider the candidates on the basis of their merit, irrespective of their registration in the employment exchange in the concerned district. It was pursuant to this order dated 02.11.2016, the petitioner was appointed as JBT on 04.02.2017.

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4(ii) We also cannot lose sight of the fact that S/Sh. Sarvinder, Rohit Kumar and Vijay Amrit Raj, had also participated in the counselling on 17.02.2014. They were appointed on 27.08.2014, 27.08.2014 and 06.01.2014 respectively, and were regularized w.e.f. May 2017. It is evident that for purpose of regularization of services of these three persons, their initial dates of appointments were treated at par with that of other candidates.

4(iii) The issue raised in the instant petition is otherwise covered by the decision of this Court in LPA No.170 of 2014, titled Shri Balak Ram Versus State of Himachal Pradesh & others, decided on 19.11.2014, wherein it was held that when a candidate is deprived of appointment illegally, he is deemed to have been appointed right from the same date. The relevant part of the judgment is as under: -

" 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:

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

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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 bypassing 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 wittingly or unwittingly in defiance of the 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

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

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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, on the date admittedly the petitioner was 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

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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."

4(iv) The petitioner is situated similarly viz-a-viz S/Sh.Sarvinder, Rohit Kumar and Vijay Amrit Raj. He is entitled to the same treatment given to these persons. In the facts of the case, the issue of considering the petitioner having been appointed notionally from the date his counterparts were appointed, is also covered in his favour by the decision referred to above.

Accordingly, the petition is allowed. The respondents are directed to treat the petitioner as having been notionally appointed as JBT on contract basis in District Kinnaur in February/March 2014 at par with other candidates who were appointed in District Kinnaur in February/March 2014, on the basis of counselling held on 17.02.2014. We also direct the respondents to accordingly consider the case of the petitioner

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for his regularization at par with the other candidates, who were so appointed on contract basis and regularized vide order dated 26.05.2017. This exercise be completed within three months from the date of production of certified copy of this judgment before the respondents."

13. Consequently, in view of the above, present petition is

allowed. Respondent-Corporation is directed to treat the petitioner as

an appointee of the date when other candidates of same selection

process were offered appointment by the Corporation. This period

shall be counted for all intents and purposes, except that no actual

monetary benefits shall be paid to the petitioner.

14. In the afore terms, present petition is disposed of

alongwith pending applications, if any.

May 2, 2025                                           (Sandeep Sharma),
      (manjit)                                              Judge