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2022 Supreme(HP) 574
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, J.
Roshan Lal, Son Of Shri Keshav Ram - Appellant
Vs.
H.P. Power Corporation Ltd. - Respondent
Civil Writ Petition (Original Application) No. 4729 of 2019
Decided On : 08-03-2022
For the Appellant :Sh. Dushyant Dadwal, Advocate
For the Respondent:Sh. Sunil Mohan Goel, Sh. Tara Singh Chauhan, Sh. Vikas Rajput, Advocates.
Point of Law: Principle of equity cannot be run contrary to law and right of equality enshrined under the constitution.
Headnote:
Constitution of India, 1950 - Articles 14, 12 , 16(1) , 226 – Equality before Law – Power of High court to issue writs - Whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesses, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant - Whether the official respondents could have appointed respondents No. 3 and 4 in relaxation to the recruitment rules/selection criteria when eligible candidates including the petitioner were already available - Article 14 read with Article 16(1) of the Constitution accords right to an equality or an equal treatment consistent with principles of natural justice. (Para 20).
Findings of Court : Court firmly of the opinion that what is illegal and void shall continue to be so and principle of equity cannot save such appointment. In fact the equity must come against such employees, who had enjoyed the illegal employment and received salary for long years though they had no right or authority to occupy the post/office or receive the salary simply because the doors were opened for them by some unauthorized officer(s) by his unauthorized act - If such persons, whose initial appointments are bad are allowed to occupy the office and post simply because they continued to hold the same then it would be adding premium to illegality. What was void would continue to be void. Either of these cannot be legalized nor can the Court grant relief in favour of such persons applying the principles of equity. The equity bridges the gaps and not the voids.
Result: Petition is allowed
ORDER :
It was more than four decades back that the Hon’ble Supreme Court had observed that “it must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesses, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesses including award of jobs, contracts quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory (Refer: Erusian Equipment and Chemicals Ltd. vs. State of West Bengal, AIR 1975 SC 26).
2. Can the official respondents go to justify the appointment of respondents No. 3 and 4, who despite being ineligible not only got appointments, but further have not chosen to contest the petition as probably they are confident that respondents No. 1 and 2 are there to defend them at any costs.
3. The records, more particularly, supplementary affidavit filed by respondent No.1 in compliance to the order dated 29.12.2011 and thereafter order dated 5.5.2015, whereby respondents No. 1 and 2 were directed to clarify the circumstances under which respondents No. 3 and 4 came to be appointed without even the post being advertised, reveals that respondent No.3 was serving as Personnel Assistant in Agro Industrial Packaging India Limited on regular basis and was appointed on secondment basis in Himachal Pradesh Power Corporation Limited (HPPCL) vide office letter dated 6.10.2007 and joined as such on 16.10.2007, whereas respondent No.4 was serving as Junior Assistant in Himachal Pradesh State Cooperative Marketing & Consumers Federation Limited (HIMFED) and was appointed on secondment basis in HPPCL vide office letter dated 6.10.2007 and joined as such on 22.10.2007. The management of HPPCL decided that 31 officers/officials working on secondment basis in HPPCL from organizations other than Himachal Pradesh State Electricity Board Limited (HPSEBL) be considered for absorption in HPPCL. Accordingly, a circular dated 14.5.2009 was issued calling upon to give their options on the prescribed performa. Both respondents No. 3 and 4 submitted their options for being permanently absorbed in HPPCL and after receipt of such options, a three-member Committee was constituted by the Managing Director of HPPCL vide office order dated 19.6.2009 comprising of (a) Director (Electrical); (b) General Manager (Personnel); and (c) General Manager (Finance) to decide the terms and conditions and level of absorption of these employees in HPPCL by taking into consideration the factors mentioned in the said office order.
4. However, later on the service committee of the HPPCL in its meeting held on 30.12.2009, in order to ensure transparency and afford opportunity to all, recommended that the posts in question be filled up by inviting applications from eligible candidates working in GoHP or any GoHP owned PSUs including HPSEBL, as would be evident from agenda item No.1 of the meeting dated 30.12.2009, relevant portion whereof reads as under:-
“The Managing Director explained that the officers/officials given in the Memorandum had joined the Corporation almost on its inception and have become well conversant with working of the power sector. It was further informed that they are discharging their duties and responsibilities to the entire satisfaction of the management and advocated for
