IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 4869 of 2008. Reserved on 09.11.2010. Decided on: 21.02.2011. Kanta Devi. …Petitioner. -Versus- State of H. P. and Others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. Dilip Sharma, Advocate. For the respondents. : Mr. P.M. Negi, Deputy Advocate General, with Mr. R.P. Singh, Assistant Advocate General, for respondents No. 1 to 5. None for respondent No. 6. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Material facts necessary for adjudication of this petition are that the petitioner is a widow and she belongs to I.R.D.P. category. She was interviewed for the post of Part Time Water Carrier in Government Primary School, Batlahu, Block Bijhari, Hamirpur, H.P.. The appointment letter was issued to her on 14.07.1997. However, she was not permitted to join her duties and respondent No. 6 was permitted to discharge the duties of Part Time Water Carrier in Government Primary School, Batlahu. 2. Mr. Dilip Sharma, learned counsel for the petitioner has strenuously argued that once the selection process has been commenced as per notification dated 6th July, 1996 and the petitioner has been found suitable by the selection committee, his 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - client was required to be permitted to join her duties. He also contended that services of his client were terminated on 16th December, 1997 without issuing any show-cause notice to her. He also contended that the respondents could not resort to making the appointments in dilution of the notification dated 6th July, 1996. According to him, the selection process had already been commenced and the appointment letter was issued to the petitioner. In these circumstances, the respondent No. 6 could not be permitted to work as Part Time Water Carrier in Government Primary School, Batlahu. He also contended that every citizen has a right to be considered for public appointment and the same must be made on the basis of transparent and fair procedure. In other words, his submission is that no person can be offered public employment without considering the cases of all the eligible candidates and the zone of consideration cannot be restricted to one candidate. He lastly contended that the appointment of respondent No. 6 is violative of Articles 14 and 16 of the Constitution of India. 3. Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that the appointment of respondent No. 6 is in accordance with law. According to him, the respondent-State has issued instructions on 30.11.1996, 02.01.1997 and on 19.08.1997 (Annexure A-4), whereby the Part Time Water Carriers who have been appointed by the Parent Teachers Association or local Panchayat on honorarium basis prior to 31.03.1996 and continuing to work as such shall be deemed to be appointed as Part Time Water Carriers under the scheme w.e.f. 06.07.1996. - 3 - 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner is a widow and she also belongs to I.R.D.P. category. The State Government has issued a notification on 6th July, 1996, whereby a scheme has been framed for the appointment of Part Time Water Carriers in Schools of Education Department. The appointments are to be made by the selection committee to be constituted by the Government in Education Department from time to time. The eligibility criteria has been prescribed under paragraph No. 3 of the Scheme. Paragraph No. 4 provides that the Block Primary Education Officer/Headmaster/principal will call applications for recruitment to the post of Part Time Water Carrier by advertising through the Panchayat and school notice board. Paragraph No. 5 provides for interview and allocation of marks. Paragraph No. 6 provides for preparation of waiting list. The termination/resignation is provided under paragraph No. 8. Petitioner submitted her application to be considered for appointment to the post of Part Time Water Carrier in Government Primary School, Batlahu. She was found suitable by a duly constituted selection committee to the post of Part Time Water Carrier. She was offered appointment vide letter dated 14.07.1997. She went to join her duties on 23.07.1997. However, the respondent No. 4 sent the petitioner to submit her joining report to Centre Head Teacher, P.S. Dhamota. She reported to C.H.T., Dhamota on 24.07.1997. The Centre Head Teacher, P.S. Dhamota told her to submit her joining at G.P.S. Batlahu. She reported at G.P.S. Batlahu on 1st September, 1997. However, she was not permitted to join her duties. She made - 4 - representations on 04.09.1997 and 08.09.1997. Petitioner approached the learned erstwhile Himachal Pradesh Administrative Tribunal for the redressal of her grievance. The learned Tribunal passed the interim orders on 09.09.1998. However, fact of the matter is that petitioner was not permitted to join her duties. 6. Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that on the basis of letters dated 30.11.1996, 02.01.1997 and 19.08.1997, it was found that respondent No. 6 was working as Part Time Water Carrier in Government Primary School, Batlahu and, in these circumstances, the appointment letter was issued to him on 29th November, 1997. It has come in Annexure R-V, dated 30th November, 1998 that the services of the petitioner were terminated w.e.f. 16th December, 1997. It is admitted fact that the petitioner was not heard before the decision was taken to terminate her services on 16th December, 1997. She has suffered civil and evil consequences. The notice was required to be issued to her before taking the decision to terminate her services vide letter dated 16th December, 1997. 7. The appointment to the post of Part Time Water Carrier was required to be made as per the notification dated 6th July, 1997. The post was advertised. Petitioner fulfilled the eligibility criteria. Her suitability was adjudged by the selection committee. The appointment letter was issued to her on 14th July, 1997. Despite that, she was not permitted to join her duties and was also harassed by the respondents. The representations made by the petitioner on 04.09.1997 and 08.09.1997 were not addressed to. - 5 - 8. The public employment is to be made in conformity with Articles 14 and 16 of the Constitution of India. It cannot be treated as largess of the State to be distributed at its own sweet will. In making public employment, the candidatures of all the eligible and qualified candidates are to be considered after inviting application in the prescribed proforma. Thereafter, the suitability of all those candidates who are found eligible and qualified is to be determined by way of screening test, written test, viva-voce etc.. In the instant case, the petitioner’s suitability has been adjudged and she has been offered appointment letter on 14.07.1997. However, the respondents on the basis of instructions issued subsequently and on the basis of enquiry held by the Deputy Commissioner, Hamirpur, came to the conclusion that since respondent No. 6 was already working as Part Time Water Carrier, he will be deemed to have been continued under the Scheme notified on 6th July, 1996. 9. It is not borne out from the records whether the respondent No. 6 was appointed either by the Gram Panchayat or by the Parent Teachers Association. In case he has been appointed as Part Time Water Carrier, there ought to have been a resolution passed by the Gram Panchayat or by the Parent Teachers Association. 10. The matter is required to be considered from another angle. The respondent-State itself has initiated the process for filling up the post of Part Time Water Carrier. The process was complete when the appointment letter was issued to the petitioner on 14.07.1997. She was only required to join her duties at Government Primary School, Batlahu. The State Government was - 6 - required to enquire at the relevant time whether somebody was working at Government Primary School, Batlahu as Part Time Water Carrier appointed by the Gram Panchayat or by the Parent Teachers Association or not. In the instant case, it is difficult to believe that the respondent-State was not aware of the fact that anybody was working on part time basis at Government Primary School, Batlahu. It is only thereafter that the process was initiated for filling up the post of Part Time Water Carrier in G.P.S., Batlahu by advertising the post and by inviting the applications and the suitability of the petitioner and similarly situate candidates was considered. This process has been scuttled by the respondents in a most illegal and arbitrary manner. The exercise undertaken by the respondents of not permitting the petitioner to join her duties and thereafter to terminate her services, that too without issuing any show-cause notice, smacks of legal malafides. Once the process has been initiated to fill up the post of Part Time Water Carrier, the respondents could not scuttle the same. It is, no doubt, true that a candidate, who has been offered appointment letter, may not have an indefeasible right to be appointed against the post in question, however, the reason to deny the public employment must be cogent and convincing. 11. Their Lordships of the Hon’ble Supreme Court in East Coast Railway and another Versus Mahadev Appa Rao and Others (2010) 7 Supreme Court Cases 678 have held as under: “14. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State - 7 - does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State’s decision not to make an appointment is thus a matter which is not beyond judicial review before a competent writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter. 15. To the same effect is the decision of this Court in UT of Chandigarh V. Dilbagh Singh where again this Court reiterated that while a candidate who finds a place in the select list may have no vested right to be appointed to any post, in the absence of any specific rules entitling him to the same, he may still be aggrieved of his non- appointment if the authority concerned acts arbitrarily or in a malafide manner. That was also a case where the selection process had been cancelled by the chandigarh Administration upon receipt of complaints about the unfair and injudicious manner in which the select list of candidates for appointment as conductors in CTU was prepared by the Selection Board. An inquiry got conducted into the said complaint proved the allegations made in the complaint to be true. It was in that backdrop that action taken by the Chandigarh Administration was held to be neither discriminatory nor unjustified as the same was duly supported by valid reasons for canceling what was described by this Court to be as a “dubious selection”. 16. Applying these principles to the case at hand there is no gainsaying that while the candidates who appeared in the typewriting test had no indefeasible or absolute right to seek an appointment, yet the same did not give a licence to - 8 - the competent authority to cancel the examination and the result thereof in an arbitrary manner. The least which the candidates who were otherwise eligible for appointment and who had appeared in the examination that constituted a step-in-aid of a possible appointment in their favour, were entitled to is to ensure that the selection process was not allowed to be scuttled for mala fide reasons or in an arbitrary manner. 17. It is trite that Article 14 of the Constitution strikes at arbitrariness which is an antithesis of the guarantee contained in Articles 14 and 16 of the Constitution. Whether or not the cancellation of the typing test was arbitrary is a question which the Court shall have to examine once a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim an appointment against the advertised posts. 12. The Court is of the considered view that all the appointments as Part Time Water Carriers were to be made strictly as per the notification dated 6th July, 1996. The scheme framed by the respondent-State, must conform to Articles 14 and 16 of the Constitution of India. The subsequent letters issued on 30.11.1996, 02.01.1997 and 19.08.1997 are violative of Articles 14 and 16 of the Constitution of India. It gives premium to a person, who has not been selected in accordance with law, but will deemed to have been appointed under the scheme notified on 6th July, 1996. Moreover, the respondents have not placed any tangible material on record to establish that the respondent No. 6 was appointed by a resolution passed by the Parent Teachers Association or by the concerned Gram Panchayat. - 9 - 13. Accordingly, in view of the observations and discussion made hereinabove, the petition is allowed. The appointment of respondent No. 6 made on 29.11.1997 is quashed and set aside. Respondents No. 1 to 5 are directed to permit the petitioner to join her duties to the post of Part Time Water Carrier in Government Primary School, Batlahu, within a period of fifteen days from the date of production of a certified copy of this judgment by the petitioner. Respondent No. 6 will cease to function forthwith. No costs. (Rajiv Sharma) Judge February 21, 2011. (bhupender) - 10 -