IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP (T) No. 3915 of 2008 (OA No.1833/96) Reserved on: 8th April, 2009 Date of Decision: 6th May, 2009 Devinder Nath Petitioner Versus State of Himachal Pradesh and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the petitioner: Ms.Sunita Sharma, Advocate. For the respondents: Mr.R.K.Sharma, Sr. Addl. A.G. with Mr. Vivek Thakur, Addl. A.G. and Mr. Anil Jaswal, Dy. Advocate General, for respondents No.1 and 2. Mr.D.K.Khanna, Advocate, for respondent No.3. Mr.Ashwani Kumar Sharma, Advocate, for respondent No.4 Sanjay Karol, J. In the present petition, the petitioner has prayed for the following reliefs:- “(i) That the entire process of consideration of candidates for the post of District Youth Services and Sports Officer in absence of the applicant be kindly declared illegal and be declared void ab initio. Whether the reporters of Local Papers are allowed to see the Judgment? 2 (i) That the recommendations made by the respondent-3 Commission in favour of respondent-4 for appointment of the post of District Youth Services and Sports Officer be kindly declared illegal and be set aside. (ii) That the appointment of respondlent-4 to the post of District Youth Services and Sports Officer against a Scheduled Caste vacancy ordered by the respondents No.1 and 2 be kindly declared illegal and set aside. (iii) That respondent-3 Commission be directed to consider the eligible candidates alongwith the applicant who had applied within the stipulated time for the post of District Youth Services and Sports Officer for the S.C. vacancy by holding fresh interviews and to recommend the name of applicant for appointment in case he is selected.” The State of Himachal Pradesh, in consultation with the H.P. Public Service Commission (hereafter referred to Commission) framed the Recruitment and Promotion Rules for the post of Sports Coach/ District Sports Officer vide Notification dated 10.6.1988 (Annexure B-1). It is a selection post to be filled up by direct recruitment. The eligibility criteria laid down is as under:- “ekU;rk izkIr fo”ofo|ky; / laLFkk ls “kkjhfjd f”k{kk esa fMIyksek /“kkjhfjd f”k{kk Lukrd, f”k{k.k esa de ls de 6 ekl dh vof/k dk lVhZfQdsV / fMIyksek (li= ikB~;dze) lfgr” It has been translated by the respondents, though wrongly, as under:- “Diploma in Physical Education/ Graduate in Physical Education with at least 6 months coaching certificate/ 3 Diploma (Condensed course) from a recognized University/Institution.” The word “Shiksan (f”k{k.k)” has been wrongly translated to read “coaching” whereas it should be “teaching”. To fill up one post of District Youth Services & Sports Officer vide letter dated 25.4.1996 (Annexure R-3/A), the Director, Youth Services and Sports, Himachal Pradesh, requested the respondent- Commission to make suitable recommendation. The Commission issued an advertisement and also circulated letter dated 27.5.1996 (Annexure R-3/1) to all the District Employment Officers in H.P.; Sub Employment Exchanges in H.P.; all the Administrative Secretaries, Heads of Departments, the Divisional Commissioners, Deputy Commissioners and all the B.D.Os in Himachal Pradesh for information and necessary action. The letter specifically mentioned that “the applications of the eligible & desirous candidates working under them alongwith the copies of the certificates/testimonials in support of their eligibility for the posts may please be sent to this office so as to reach this office within 45 days from the date of issue of this memo. Application from the inservice candidates will not be entertained direct by the Commission”. The petitioner who was employed with the H.P. State Electricity Board applied for the said post and in terms of letter dated 10.7.1996 (Annexure A-15) his name was also forwarded. The letter reads as under:- “I am to enclose herewith an application dated 20.6.96 together with its allied documents put in by Shri 4 Devender Nath Clerk of this organization for further action at your end. It is, however, informed that in case the said official is selected for the applied for (sic) post, he will be relieved only after he resigns the post held by him in this organization and arrangement of his substitute is made by the Board. In addition to this, he will also refund the entire expenditure incurred on his training by the Board in terms of the bond executed by him, before his relieving from this Organisation.” Since the petitioner was not employed with the “department of the Government of Himachal Pradesh” and as his name had not been sponsored by concerned Employment Exchange, his candidature was not considered and the respondent proceeded to select the candidates for the said post. This was so done keeping in view the circular No. PER(AP-II) A (3) 1/73-III dated 20.9.1989 (Annexure R-3/1), issued by the respondent- State clarifying that persons employed with the autonomous bodies/ authorities were to be considered only if after registration their names were sponsored by the concerned Employment Exchanges and that too with prior permission of their respective employers. In all names of 27 candidates including respondent No.4 (hereinafter referred to as private respondent), were sponsored by the Employment exchanges and they were subjected to written screening test. After screening test was held on 15.10.1996, six candidates were called for interview as the other candidates did not fulfill the eligibility criteria/qualify or not possess requisite documents. 5 The Commission interviewed these candidates by forming a panel and based upon their performance before the interview Board the name of private respondent was recommended to the Government. Importantly, the Director, Youth Services and Sports was one of the members on the interview panel. The petitioner assailed the selection process by filing the petition and on 11.12.1996 while considering the interim relief, it was so directed that the appointment, if any, shall be subject to the decision of the petition. In the petition, the petitioner originally assailed the selection of one Shri Mast Ram, but later the petition was amended and the name of Shri Sudesh Dhiman, present respondent No.4 was substituted in his place. This was so done in December, 1998. Perhaps due to the filing of the present petition raising doubts about the eligibility of respondent No.4, the State in terms of letters dated 19.12.1996 (Annexure ‘C’) and dated 7.4.1997 (Annexure ‘E’) requested the Commission to examine the matter again. In terms of letters dated 2.4.1997 (Annexure ‘D’) and 19.6.1997 (Annexure ‘F’) the Commission took a final view that the private respondent qualified the eligibility criteria as he had graduated in M.A. (Physical Education). The private respondent was called for screening test only after the matter was examined and it was found that the candidate had higher qualification for the post. The Director, Youth Services and Sports, State of Himachal Pradesh, was one of the members of the interview board, which selected the private respondent. Importantly, the Government’s request for re-considering the matter and the 6 Commissioner’s decision thereupon was during the pendency of the present petition. From the record, it is evident that the petitioner has been actively playing football and represented school, college, university at various levels. He completed Diploma in coaching from Netaji Subhas National Institute of Sports, Patiala (Punjab), won several awards inspite of his left arm being amputated due to grievous injury which he had suffered. He also successfully cleared the examination for Referee conducted by the Haryana Football Association Referees’ Board. After having graduated in Arts the private respondent has further done his Master of Arts in Physical Education. He appeared in examination of teaching methods in Physical Education, Techniques of officiating and coaching and gymnastics lesson (practical). He also did his Master of Arts in History. With these facts, Ms. Sunita Sharma has assailed the selection of private respondent, appointed on 15.7.1997 on the grounds, (i) that private respondent did not fulfill the eligibility criteria and (ii) the petitioner was deliberately not considered only to favour the private respondent. In support of her contention, Ms. Sunita Sharma has referred to the following decisions:- Centre for Public Interest Litigation and another vs. Union of India, (2005) 8 SCC 202, Secretary, State of Karnataka and others vs. Uma Devi (3) and others, (2006) 4 SCC 1, Pitta Naveen Kumar and others vs. Raja Narasaiah Zangiti and others, (2006) 10 SCC 261, Inderpreet Singh Kahlon and others vs. State of Punjab and others, (2006) 11 SCC 7 356; Ashok Kumar Sonkar vs. Union of India and others, (2007) 4 SCC 54, Punjab State Warehousing Corpn., Chandigarh vs. Manmohan Singh and another, (2007) 9 SCC 337, Ashok Kumar Shrivastava and others vs. Ram Lal and others, (2008) 3 SCC 148 and Hemani Malhotra vs. High Court of Delhi, (2008) 7 SCC 11. Per contra, learned counsel appearing for the respondents have defended the action of the respondents on various grounds. Mr.Khanna has invited my attention to a decision rendered by the Apex Court in Ram Sarup vs. State of Haryana and others, (1979) 1 SCC 168. From the letter dated 27.5.1996 (Annexure R-3/1), it is evident that the petitioner’s name had to be sponsored through the concerned Employment Exchange. From letter dated 5.8.1995, placed on record by Ms.Sunita Sharma, it is clear that initially permission was not granted by the petitioner’s employer, but, however, vide letter dated 10.7.1996 (supra) his name was recommended with certain conditions. Whether the petitioner could fulfill the conditions imposed by his employer or not is not the subject matter of this petition. However, the fact remains that such recommendation by itself would not have entitled the petitioner to have been considered for the post in question as his name was not sponsored by the Employment Exchange. Therefore, in my considered view no fault can be found with the Commission for not having considered the petitioner for the said post. It is not that private respondent alone was considered. As has been noticed hereinabove, in all 27 names sponsored by different Employment Exchanges were considered. All the candidates who were finally screened and found fit after the written test, were called for 8 interview and the private respondent being the best on merit, his name was accordingly recommended. No malice, in law, stands established from record. In Ram Sarup (supra), the Apex Court was dealing with a case where Rule 4 of the Punjab Labour Service (Class I & II) Rules, 1955 laid down a twin condition of (i) minimum educational qualification and (ii) five years experience of working laws of labour laws as Labour Inspector. The successful candidate fulfilled the criteria of educational qualification but lacked the qualification of experience. The Apex Court held that breach of the second condition by itself did not render the appointment to be illegal. It was only irregular. The Court held that as soon as the petitioner acquired the necessary qualification of five years’ experience of working his appointment must be considered to have been regularized. The said view was reiterated in Buddhi Nath Chaudhary and others vs. Abahi Kumar and others, (2001) 3 SCC 328. Similar view was also taken by the Apex Court in MD.Muzaffar Alam versus State of Bihar and others, (2001) 10 SCC 169. The eligibility criteria required the candidate to have obtained a degree in Physical Education and a certificate/diploma in the subject of teaching as per the prescribed syllabus, for at least six months. The private respondent acquired qualification of M.A. in Physical Education and History. The job description of the District Youth & Sports Officer, as required by the State was not for a specific game. The private respondent had actually obtained training and cleared successfully examination in the subjects of teaching methods in Physical Education, 9 Techniques of officiating and coaching and gymnastics lesson (practical). This is so evident from the detailed marks-sheet placed on record. The degree in Physical Education was taken to be as higher qualification as against Diploma/ Certificate course in the concerned game by the Commission. It is no body’s case that private respondent did not have a degree in Physical Education. In fact the qualification of private respondent is much higher than that of the petitioner. Therefore, the private respondent fulfilled the eligibility criteria of educational qualification and found best suited due to higher qualification. The doubt expressed by the State in terms of letters dated 19.12.1996 and 7.4.1997 was after and perhaps due to the pendency of the present petition. The Commission examined the matter and reiterated its stand. The Commission found the private respondent to have fulfilled the criteria of six months teaching certificate The private respondent, fulfilled the eligibility criteria of having atleast six months certificate in teaching. The Rules do not require that the candidate must have experience in teaching. The petitioner’s case is based on erroneous interpretation of the Rules. The private respondent’s appointment is not illegal. In the present case the private respondent has been working satisfactorily on the post since 15.7.1997. The petition was filed in December, 1998. After a gap of 12 years, it would not be equitable to interfere and set aside the process of selection and appointment particularly when no illegality is observed and that the petitioner does not stand to benefit. Even if the selection is set aside and fresh interviews are held, the 10 petitioner would out of zone of consideration as he would have become overage and thus ineligible. Importantly, it is not that the appointment of the private respondent is illegal. Hence, no interference is called for. In Centre for Public Interest Litigation (supra), the Apex Court was dealing with the appoint of Ms. Neera Yadav as Chief Secretary of the State of U.P. against whom charges of corruption were levelled and inquiry was pending with the C.B.I. It was not the case in hand. In Uma Devi (supra), the Apex Court was dealing with illegal regularization of casual/contractual/daily wages/adhoc employees appointed/regularized. This is not the case in hand either. In Pitta Naveen Kumar (supra), the Apex Court was dealing with a case where the State had relaxed the norms with regard to age limit only to accommodate the candidates who could not apply for the post within time. In the teeth of the Recruitment and Promotion Rules, the action of the State was found to be in contravention of the statutory Rules and hence violative of Articles 14 and 16 of the Constitution. In the present case, none of the Rules have been relaxed nor is the selection illegal. The ratio of law is not applicable to the present case. The ratio of law in Inderpreet Singh Kahlon (supra) is not applicable at all as the Court was dealing with a case of mass cheating by candidates for a board examination, with proven charge of corruption where the appointment of a civil servant was involved. In Ashok Kumar Sonkar (supra), the Court was again dealing with a case where the advertisement did not specify any cut off date by when the successful candidates were required to complete their educational qualification. These are not the facts in hand either. 11 Importantly, the Apex Court itself drew the distinction between an illegal appointment and an irregular appointment and held if the appointment is irregular the same could be regularized. In Manmohan Singh (supra), again the Court was dealing with a case of an illegal appointment and it is in this background that it was held that the appointment is made in violation of the constitutional scheme and it would be a nullity. The candidates did not fulfill the eligibility criteria laid down under the Rules, but the State had formulated a Scheme and issued a circular that if the concerned departments recruitment rules came in way of regularization all the employees who were work-charged/ daily wages and other category workers, the provisions of recruitment rules would deemed to be relaxed. It is in this background the Court held that in the teeth of Rules framed under Article 309 of the Constitution no executive instructions under Article 162 of the Constitution could be issued. The Apex Court in Pramod Kumar (supra), was dealing with a case where the person appointed did not fulfill the basic educational qualification and on the job was granted time to obtain a degree from a college recognized by the University. It was in this background, the Court held that since the applicant initially did not possess the requisite educational qualification to hold the post, he would have no legal right to continue with the same. The ratio is not applicable on facts. For the aforesaid reasons, I do not find any legally enforceable right of the petitioner, having been violated by the respondents. Hence the present petition is dismissed. May 6, 2009 (Sanjay Karol) (C) Judge.