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2020 Supreme(HP) 6
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur and Ajay Mohan Goel, JJ.
Rajinder Kumar - Appellant
Versus
Honble High Court Of Himachal Pradesh & Ors. - Respondent
Letters Patent Appeal No. 74 of 2017
Decided On : 07-01-2020
B.C. Negi, Advocate, Tara Singh Chauhan, Advocate, J.L. Bhardwaj, Advocate, S.C. Sharma, Advocate, Desh Raj Thakur, Advocate, Rameeta Rahi, Advocate, K.D. Sood, Advocate, Sukrit Sood, Advocate, Rahul Mahajan, Advocate
Headnote:
None
Fact of the Case:
In the year 2003, a competitive examination was conducted by the Himachal Pradesh Public Service Commission (Commission) for the recruitment of Sub Judge-cum-Judicial Magistrate Class-1 Gazetted. The petitioner, respondent No.3, and respondent No.4 were among the candidates who appeared for the examination. The petitioner and respondent No.4 were appointed to the H.P. Judicial Service vide Notification No.HomeB(E)3-17/2003, dated 19th/21st November, 2003 (Annexure P-4 to the Writ Petition) (hereinafter referred to as First Notification), whereas respondent No.3 was appointed to the H.P. Judicial Service vide Notification No.Home-B(E)3- 17/2003, dated 18th December, 2003 (Annexure R-1 to the reply of respondent No.3 to Writ Petition) (hereinafter referred to as Second Notification).
Finding of the Court:
The Court found that the appointment of respondent No.3 was not arbitrary or malafide and that she was entitled to seniority above the petitioner and respondent No.4 in accordance with the provisions of the relevant Rules.
Issues: 1. Whether the appointment of respondent No.3 was arbitrary or malafide? 2. Whether respondent No.3 was entitled to seniority above the petitioner and respondent No.4?
Ratio Decidendi: 1. The decision not to fill the notified vacancies must not be arbitrary, malafide or for ulterior motive. 2. A person who enters the service first shall rank senior unless there is some Rule providing otherwise, which can be held to be consistent with Articles 14 and 16 of the Constitution of India. 3. In the present case, the post was not only existing and available for appointment but also intended to be filled-in along with other vacancies. However, it was not filled-up along with other vacancies earlier for no cogent reason. It was, however, filled-in during the same year that too within a period of about one month. Under the provisions of relevant Rules, availability of the post and intention of High Court and Government to fill-up the said post, the fact of appointment of respondent No.3, at later stage, is immaterial for the purpose of determining her seniority on the basis of her merit in the Select List of the same H.P. Judicial Service Competitive Examination, 2003, therefore, she is entitled for seniority according to order of merit in the Select List above the petitioner and respondent No.4.
Final Decision: The appeal was dismissed with further direction to the High Court to make further promotions after updating its record in consonance with the decision of the Full Court, under challenge in present proceedings, in terms of discussion herein above, to avoid further unnecessary litigation on this issue.
JUDGMENT
Vivek Singh Thakur, J. - This Letters Patent Appeal, under Section 10 of the Delhi High Court (Original Side) Rules, as applicable to the State of Himachal Pradesh, has been preferred against judgment dated 21st June, 2017, passed by learned Single Judge of this Court, in CWP No.17 of 2012, titled as Rajinder Kumar v. Hon'ble High Court of Himachal Pradesh & others, whereby Writ Petition, preferred by petitionerappellant Shri Rajinder Kumar (hereinafter referred to as petitioner) against assigning seniority to respondent No.3 Ms Abira Basu (hereinafter referred to as respondent No.3) above him and respondent No.4 Shri Sachin Raghu (hereinafter referred as respondent No.4), has been dismissed.
2. Petitioner, respondent No.3 and respondent No.4 have joined the Himachal Pradesh Judicial Service (hereinafter referred as H.P. Judicial Service) in the year 2003, after their selection through competitive examination, conducted by the Himachal Pradesh Public Service Commission (hereinafter referred to as Commission), pursuant to requisitions sent by respondent No.2-State of Himachal Pradesh (hereinafter referred to as respondent-State), on the request of respondent No.1-High Court of Himachal Pradesh (hereinafter referred to as High Court).
3. Petitioner and respondent No.4 were appointed to the H.P. Judicial Service vide Notification No.HomeB(E)3-17/2003, dated 19th/21st November, 2003 (Annexure P-4 to the Writ Petition) (hereinafter referred to as First Notification), whereas respondent No.3 was appointed to the H.P. Judicial Service vide Notification No.Home-B(E)3- 17/2003, dated 18th December, 2003 (Annexure R-1 to the reply of respondent No.3 to Writ Petition) (hereinafter referred to as Second Notification).
4. Dispute between the private parties arose in the year 2010, at the time of their promotion and appointment as Civil Judge (Senior Division), when respondent No.3 had represented for placing her correctly in seniority on her appointment in Senior Division, on the basis of merit higher than the petitioner and respondent No.4 in H.P. Judicial Service Competitive Examination, 2003, in pursuant to order of merit reflected and notified by the Commission in its Notification, published in Extraordinary Official Gazette of Himachal Pradesh dated 29th October, 2003 (Annexure P-14 to the Writ Petition), wherein respondent No.3 is at Serial No.6, and the petitioner and respondent No.4 are at Serial Nos.21 and 10, respectively. It is also apt to record here that respondent No.3 has qualified the Competitive Examination under General Category, whereas petitioner and respondent No.4 have qualified the same under Scheduled Caste category.
5. Vide First Notification, seven appointments were made to the H.P. Judicial Service, wherein first five candidates were from General Category and respondent No.4 and the petitioner were at Serial Nos.6 and 7, respectively. Vide Second Notification, nine candidates were appointed to the H.P. Judicial Service, wherein respondent No.3 was at Serial No.1 and she was appointed under General Category.
6. We have heard learned counsel for the parties and have also perused the records of Writ Petition as well as High Court, produced during hearing of the appeal.
7. In the year 2003, Writ Petition bearing No.324 of 2003, titled as Anil Chauhan v. State of H.P. & others, came up for adjudication before the High Court and in sequel to the order passed therein, vide letter No.Home-B(E)3-17/2003, dated 12th May, 2003, the Additional Chief Secretary (Home) to the Government of Himachal Pradesh had sought information from the Registrar General of High Court about the number of vacancies of Sub Judge, as existing on 30th April, 2003. In response thereto, vide letter No.HHC/GAZ/14-49/74-IV-9460, dated 13th May, 2003, it was informed by the High Court that as on 30th April, 2003, five posts of Sub Judge-cum
