Reena Kumari, D/o. Sh. Gurucharan Singh vs State of Himachal Pradesh Through Its Chief Secretary

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(HP) 538

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
TARLOK SINGH CHAUHAN, SATYEN VAIDYA, JJ.
Reena Kumari, D/o. Sh. Gurucharan Singh & Ors. - Petitioners
Versus
State of Himachal Pradesh Through Its Chief Secretary & Ors. - Respondents
Civil Writ Petition No. 3894 of 2021 Along-With Connected Matters Letters Patent Appeal Nos. 43, 119, 118, 117, 116, 71, 70, 64, 63, 62, 126, 125, 124, 123, 122, 121, 120, 42, 41 of 2021, Civil Writ Petition Nos. 2329, 2361, 2420, 2421, 2422, 2423, 2426, 3111, 3112, 3116, 3133, 3134, 3137, 3141, 3142, 3144, 3148, 3151, 3182, 3184, 3887, 4903, 5078, 5129, 5141, 5142, 5148, 5175, 5189, 5760, 5761, 5673, 5674, 5193, 6410, 6557, 6465, 6467, 7179, 7203, 7213, 7234, 7743, 4621, 4503, 4387, 4349, 4033, 4032, 3893, 3892, 3891, 3888, 7209 of 2021, Civil Writ Petition (Original Application) Nos. 6985, 7681, 2394, 2388, 2290, 2289, 2253 of 2020, Civil Writ Petition (Original Application) Nos. 7585, 34 of 2019
Decided On : 31-12-2021

Advocates Appeared:
For the Petitioners:Mr. Dilip Sharma, Ms. Ranjana Parmar, Mr. Sanjeev Bhushan, Mr. Ankush Dass Sood, Mr. Ajay Sharma and Mr. V.S. Chauhan, Senior Advocates With Mr. Karan Singh Parmar, Mr. Rakesh Chauhan, Mr. Rajneesh K. Lal, Mr. Ajay Kashyap, Mr. Anand Sharma, Mr. Anil Kumar, Mr. Ajay Chauhan, Mr. Rakesh K. Dogra, Mr. Naresh Verma, Mr. Vikas Rajput, Mr. Pankaj Sawant, Mr. Manish Sharma, Ms. Reeta Hingmang, Mr. Praveen Kumar Chandel, Mr. Sanjay Singh, Ms. Archna Dutt, Mr. Vishal Singh Thakur, Mr. Digvijay Singh Thakur, Ms. Veena Sharma, Mr. Abhishek Sharma, Mr. Narender Reddy, Mr. Neeraj Sharma, Mr. Hemant Kumar Thakur, Mr. Sanjay Singh, Ms. Seema K. Guleria, Mr. Shyam Singh Chauhan, Mr. Amit Jamwal, Mr. R.L. Verma, Mr. Naresh Kumar Verma, Mr. Dheeraj Kanwar, Mr. B.C. Negi, Sr. Advocate With Mr. Sanjeev Kumar and Mr. Angrez Kapoor, Ms. Suchitra Sen.
For the Respondents:Mr. Ashok Sharma, Advocate General With Mr. Rajinder Dogra, Senior Additional Advocate General, Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Mr. Hemanshu Misra, Additional Advocate Generals and Mr. Bhupinder Thakur, Deputy Advocate General, Mr. Sanjeev Kumar, Mr. Angrez Kapoor and Ms. Suchitra Sen, Mr. Ankush Dass Sood, Senior Advocate With Mr. Rajneesh K. Lal, Ms. Shweta Jookla, Mr. Onkar Jairath, Ms. Shalini Thakur, Mr. Naveen K. Bhardwaj, Mr. Ajay Shandil, Mr. Anil Kumar God, Mr. Avinash Jaryal, Mr. J.L. Bhardwaj, Ms. Yogita Dutta, Mr. Malay Kaushal, Mr. Rakesh Kumar Dogra, Mr. Vinod Chauhan, Ms. Kiran Sharma, Mr. K.C. Sankhyan, Mr. Raj Kumar Negi, Mr. Sunil Kumar, Ms. Richa Sharma, Mr. Jai Ram Sharma, Mr. Naresh K. Sharma, Mr. Tarun Sharma, Mr. Arvind, Rajender Thakur, Ms. Reeta Hingmang, Mr. Anand Sharma, Mr. Anil Thakur and Ms. Seema K. Guleria.

Headnote:
Recruitment and Promotion Rules - Himachal Pradesh Public Service Commission - Posts of Junior Office Assistant - Essential Qualification - Direct recruitment – Appointment - Whether application of different set of rules contemporaneously for the same post by respondents is justified - Whether decision of State Government qualified test of legality and fairness, if so, whether selections made by HPSSC to JOA 447, in pursuance to such decision, were valid - Himachal Pradesh Public Service Commission vide Advertisement invited applications from eligible candidates for appointment to 1421 posts of JOA(IT). Though the prescribed minimum essential qualifications were as per R&P Rules, still, besides candidates having qualifications as per advertisement, a large number of candidates falling under one of the following categories were also provisionally admitted by HPSSC - Held, Mere fact that second equivalence committee was constituted and it had recommended to apply 2014 Rules strictly cannot be held sufficient reason for the respondents to ignore their earlier decision made applicable to Post Code 556 vide communication - Indisputably, these decisions were neither withdrawn nor nullified by any subsequent act of State Government. Once the State Government had exercised its power to relax the R & P Rules, there had to be a conscious decision again of the State Government to revert back to original position, which is clearly missing in instant case. There is nothing on record to suggest that recommendations made by second equivalence committee were even considered by Government/ employer much less accepted at any stage. That being so, recommendations of second equivalence committee cannot by themselves have effect of nullifying decision made applicable to Post Code 556 vide communication - Thus, denial of right to all persons similarly situated to those, who were considered for selection in Post Code 447 from outside purview of 2014 Rules is clearly arbitrary and needs to be interfered with - Since the Common R&P Rules stand amended by 2020 Rules and cause of persistent confusion for time being appears to have been removed, as a necessary consequence selection for JOA 817 shall take place in accordance with 2020 Rules, however selection process shall not include selection for posts which were left over from advertised posts of JOA 556 as the said posts have already been directed to be filled through selection process of JOA 556. - Civil Writ Petitions allowed

ORDER :

All these petitions are being decided together by a common judgment as identical questions of fact and law are involved.

The questions, posed for determination herein, have arisen from happening of events which have sequentially continued for inordinate period of more than six years.

2. Government of Himachal Pradesh had created posts of Junior Office Assistant (Information and Technology), Class-III, Non-Gazetted [for short, “JOA (IT”)] for recruitment in its various Administrative Departments. Common Recruitment and Promotion Rules (for short, “2014 Rules”) for the post JOA (IT) were notified on 24th December, 2014. The minimum educational and other qualifications for the direct recruitment were prescribed as under:-

(a) ESSENTIAL QUALIFICATION:-

(i) 10+2 from a recognized Board of School Education/University.

(ii) One year Diploma in Computer Science/Computer Application/ Information Technology from a recognized University/Institution.

(iii) Computer typing speed of 30 words per minute in English or 25 words per minute in Hindi.

(i) 10+2 from a recognized Board of School Education/University.

(ii) ‘O’ or ‘A’ level Diploma from National Institute of Electronics & Information Technology (NIELIT).

(iii) Computer typing speed of 30 words per minute in English or 25 words per minute in Hindi.

(b) DESIRABLE QUALIFICATION(S).- Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.”

3. The Himachal Pradesh Public Service Commission (for short “HPSSC”) vide Advertisement No. 30/2015 dated 13.02.2015 invited applications from the eligible candidates for appointment to 1421 posts of JOA(IT). Though the prescribed minimum essential qualifications were as per R&P Rules, still, besides the candidates having qualifications as per advertisement, a large number of candidates falling under one of the following categories were also provisionally admitted by HPSSC:

(i) Those who either held qualification higher to the prescribed qualifications;

(ii) those who were having prescribed qualifications but from institutes which were not considered as recognized;

(iii) those who held qualification equivalent to the prescribed qualification.

This anomalous situation was result of the prevalent procedure which required applications to be submitted online without supporting documents merely on the basis of declaration of candidate made in the online recruitment applications. However, there was clear stipulation in the advertisement that the candidates must ensure their eligibility in respect of category, experience, age and essential qualification(s) etc. as per requirement of the post advertised to avoid rejection at later stage.

4. Having received the applications from large number of candidates whose educational qualifications were not strictly in accordance with the prescription made either in the 2014 Rules or the advertisement, HPSSC started to seek clarification from the State Government since as far back as 4.11.2015, when for the first time HPSSC sought clarification from State Government by posing questions as under :

“1. Whether a certificate or diploma issued by any registered institute operating within the state of H.P. or from outside the state is valid for determining eligibility for recruitment to the post of Junior Office Assistant (IT) or such certificates issued by recognized institutes are to be accepted.

2. A list of registered/recognized institutes whose diplomas/certificates are valid/recognized for determining eligibility for the post.

3. Any other clarification/guidelines as deemed fit in respect of the recruitment to the post.”

The process seeking clarification continued thereafter as is evident from series of correspondence dated 25.02.2016, 27.12.2016, 29.5.2017, 3.6.2017, 24.6.2017 and 14.7.2017 available on record of CWPOA 34 of 2019 (Pawa

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2021 Supreme(HP) 538

Cases Referred (3)