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High Court Of Himachal Pradesh
VYAS DEV MISRA,HIRA SINGH THAKUR,TILAK RAJ HANDA
MOHINDER KUMAR SOOD - Appellant
Versus
H.P.PUBLIC SERVICE COMMISSION - Respondent
Civil Writ Petn. No.338 of 1981
Decided On : 04/20/1982
JUDICIAL SERVICE - Recruitment - Reservation - Ex-servicemen - Consultation with High Court and Public Service Commission - Himachal Pradesh Judicial Service Rules, 1973 - Himachal Pradesh Judicial Service (Reservation of Vacancies in Himachal Pradesh Judicial Service) Rules, 1981 - Constitution of India, Arts. 14, 15(4), 16(4), 234.
Fact of the Case:
The Himachal Pradesh Public Service Commission (Commission) issued an advertisement inviting applications for the competitive examination for recruitment to the Himachal Pradesh Judicial Service (Service). The advertisement was withdrawn due to a mistake in making reservation for Ex-servicemen. Another advertisement was issued for recruitment of 9 persons to the Service, with 8 seats reserved for Scheduled Castes, Scheduled Tribes, and Ex-servicemen. The examination was countermanded before it could be held. The State Government asked the Commission to hold the necessary examination for filling 12 posts in the Service. An advertisement was issued in August 1981, reserving two vacancies for Scheduled Castes, two for Scheduled Tribes, and one for Ex-servicemen. The examination was held in November 1981. A writ petition was filed challenging the reservation and the manner in which the examination was conducted.
Finding of the Court:
1. The reservation for Ex-servicemen made vide Ex-Servicemen (Reservation of Vancancies in Himachal Pradesh Judicial Service) Rules, 1981 (Rules of 1981) was illegal since there was no consultation in terms of Article 234 of the Constitution between the State Government and the High Court as well as the Commission. 2. The reservation in respect of Scheduled Castes and Scheduled Tribes was made only in respect of persons residents of the State of Himachal Pradesh, which could not be done. 3. The examination was not conducted properly inasmuch as bare Acts, which under the rules have to be supplied to the examinees, were not supplied in time, and that the Hindu Marriage Act supplied to the examinees was an out-dated one and did not have the latest amendments.
Issues: 1. Whether the reservation for Ex-servicemen made vide Ex-Servicemen (Reservation of Vancancies in Himachal Pradesh Judicial Service) Rules, 1981 (Rules of 1981) was illegal since there was no consultation in terms of Article 234 of the Constitution between the State Government and the High Court as well as the Commission? 2. Whether the reservation in respect of Scheduled Castes and Scheduled Tribes was made only in respect of persons residents of the State of Himachal Pradesh, which could not be done? 3. Whether the examination was not conducted properly inasmuch as bare Acts, which under the rules have to be supplied to the examinees, were not supplied in time, and that the Hindu Marriage Act supplied to the examinees was an out-dated one and did not have the latest amendments?
Ratio Decidendi: 1. Consultation is not a mere formality of asking the opinion of another but there has to be full and effective consultation by each party making their respective points of view known to each other and then discussing and examining the relative merits of the view. 2. The proviso to clause (ii) of sub-rule (9) of Rule 5, Part III-B of the Himachal Pradesh Judicial Service Rules, 1973, which leaves no doubt that vacancies for Scheduled Castes, Scheduled Tribes, and other backward classes can be reserved, is not an abdication of the powers of the High Court since the High Court had been consulted and had agreed that there should be reservation for these classes. 3. The reservation of vacancies for ex-armed forces personnel is constitutionally valid since they have a peculiar handicap in giving education to their children and in competing with civilians for civilian jobs. 4. The reservation for Scheduled Castes and Scheduled Tribes belonging to the State of Himachal Pradesh only is saved by Art. 16 (4) of the Constitution and cannot be struck down. 5. The examination in Hindu Marriage Act was not fair since the bare Acts were not supplied to the candidates in time and the Hindu Marriage Act supplied to them did not have the latest amendments.
Final Decision: The petition was partly allowed. The examination in Hindu Marriage Act was quashed. The Commission was directed to hold fresh examination in paper Civil Law-II since Hindu Marriage Act is one of the parts of that paper.
V. D. Misra, C. J.:- The last examination for recruitment to the Himachal Pradesh Judicial Service (referred to as the Service) was held by the Himachal Pradesh Public Service Commission (referred to as the Commission) in 1975. In this examination 12 candidates were selected and appointed to the Service. Thereafter from time to time the High Court asked the State Government for recruitment of more persons to the Service to fill vacancies in the Service. The Commission issued an advertisement inviting applications for the competitive examination. The advertisement appeared in the newspapers on 1st January, 1980. As this advertisement was found to be defective, it was withdrawn by the Commission. Another advertisement in October, 1980 was issued by the Commission for recruitment of 9 persons to the Service. As many as 8 seats were reserved for Scheduler Castes, Scheduled Tribes and Ex-servicemen. The examination was proposed to be held on 22nd December, 1980. Before the examination could be held, one Ravinder Singh Dhaulta challenged the reservation by C.W.P. No.202 of 1980. The State conceded that there was a mistake in making reservation for the Ex-servicemen since there was no provision for such reservation. On 4th December, 1980, the examination was countermanded.
2. At the request of the High Court the State Government asked the Commission to hold the necessary examination for filling 12 posts in the Service. An advertisement was issued in August, 1981 by the Commission. Two vacancies were reserved for Scheduled Castes, two for Scheduled Tribes, and one for Ex-servicemen. The examination was announced for 5th, 6th and 7th November, 1981 at Simla. The examination has been held. As many as 500 persons are stated to have taken the examination. Mohinder Kumar, petitioner, is one of them. By this writ petition he challenges the reservation as well as the manner in which the examination was held.
3. Mr. Kapil Dev Sood, learned counsel for the petitioner, has raised three contentions. The first is that the reservation made for Ex-servicemen vide Ex-Servicemen (Reservation of Vancancies in Himachal Pradesh Judicial Service) Rules, 1981 (referred to as Rules of 1981) is illegal since there was no consultation in terms of Article 234 of the Constitution between the State Government and the High Court as well as the Commission. The second contention is that the reservation in respect of Scheduled Castes and Scheduled Tribes has been made only in respect of persons residents of the State of Himachal Pradesh which could not be done. The third contention is that the examination was not conducted properly inasmuch as bare Acts, which Under the rules have to be supplied to the examinees, were not supplied in time, and that the Hindu Marriage Act supplied to the examinees was an out-dated one and did not have the latest amendments. We will now deal with each of these contentions. CONSULTATION.
4. Before we consider the contention of the parties it is necessary to record some relevant facts. The Demobilized Indian Armed Forces (Reservation of vacancies in the Himachal Pradesh Judicial Service) Rules, 1975 were notified on 28th April, 1975. These were to remain in force for a period of five years. These automatically lapsed in April, 1980. The advertisement issued in October, 1980 providing for reservation of the Ex-servicemen was withdrawn when the Government realised that there were no rules in force for making such a reservation. Since the State Government was interested in making reservation for Ex-servicemen, it wrote a letter (Annexure R-3/A) to the Registrar of the High Court. A similar letter was written to Secretary to the Commission. The relevant part of the letter reads: "It is proposed to extend these rules up to 31st December, 1982, as per draft amendment (copy enclosed). It is requested that approval of the High Court/Public Service Commission may kindly be obtained and conveyed to this department immediately." The propose
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