1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA L.P.A. No. 72 of 2010 Judgment reserved on: 06.09.2010 Date of decision: September 20, 2010 Ashu Verma .. .. Appellant Versus State of H.P. and others .. .. Respondents Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. For the Appellant : Mr. B.C. Negi, Advocate For the respondents: Mr. Ankush Dass Sood, Additional Advocate General. ____________________________________________________________ Justice Kurian Joseph, C.J. (Oral) Writ petitioner is the appellant. The writ petition was filed (originally as Application before the Tribunal) challenging Annexure A-9, order, dated 5.3.2007. As per Annexure A-9, the third respondent, Commandant, 1st India Reserve Battalion, Bangarh, District Una, H.P. terminated the petitioner from the service in the police department. The petitioner had been appointed as Constable on 4.4.2006 in the battalion after all the codal formalities. The petitioner had appeared for selection for recruitment of Constable in the district of Bilaspur, held w.e.f. 15.9.2005 to 22.9.2005. He was waitlisted among the candidates for general category. It appears, the petitioner had subsequently appeared in the test, held from 14.10.2005 to 28.10.2005 in district Kangra. However, he was not selected. He was thereafter selected from the waitlisted candidates of Bilaspur. At the time of appointment, he had given an affidavit, dated 21.3.2006 that he had not appeared in the recruitment 2 process in any other district in Himachal Pradesh. When it was found that he had appeared in Kangra district also, a show cause notice was issued and in reply, the petitioner informed the Commandant that he had not appeared for any selection in any other district, prior to the selection in Bilaspur. However, without analyzing the actual issue, the petitioner was terminated from service as per impugned Annexure A-9, order, dated 5.3.2007. The only reason for terminating the petitioner is that he had filed false affidavit before the appointing authority to the effect that he had not participated for selection in any other district. 2. Learned Single Judge dismissed the writ petition on the ground that the petitioner had appeared for selection in two districts and that fact had been suppressed in the affidavit submitted at the time of appointment. 3. The crucial contention of the appellant is that he had not filed any false affidavit before the appointing authority. In order to appreciate the contention, it is necessary to refer again to the date of selection conducted at Bilaspur and Kangra. The Bilaspur selection is conducted between 15.9.2005 and 22.9.2005. It is in that selection, the petitioner had initially been waitlisted and thereafter selected. The Kangra selection is between 14.10.2005 and 28.10.2005. It is to be specifically noted that the action taken against the petitioner is not for filing any false statement in respect of selection in Kangra. No doubt, in the application for selection in Kangra district, the petitioner had certified that he had not appeared for recruitment for police Constable in any other district. The sanction for that certification is that he would be disqualified for the selection in respect of that district and legal action at any stage. At the risk of redundancy, we may state that proceedings are initiated against the petitioner and it is the argument also of the learned Additional 3 Advocate General that termination is only on account of the false affidavit filed at the time of joining duty. 4. Therefore, the crucial question is whether the petitioner had filed any false affidavit at the time of joining duty. The affidavit is Annexure A-4. The relevant paragraph is para 4, which reads as follows:- “4. That I had not appeared earlier in the current recruitment process for the recruitment of Police Constables for 3rd India Reserve Battalion and Ist India Reserve Battalion in any other district of H.P. in the year 2005.” It has to be specifically noted that the petitioner has used the past perfect tense – he had not participated earlier in the recruitment process. This has to be understood in continuation of para 3, which reads as follows:- “3. That I had appeared in District Bilaspur for recruitment as Constable in 3rd and 1st Indian Reserve Battalion in the month of September, 2005.” Therefore, the affidavit is only to the effect that he had appeared for selection in Bilaspur district in September, 2005 and that he had not appeared earlier in the recruitment process in any other district in the year 2005. As already stated above, the appearance in Kangra is only in October, 2005. Therefore, for the only reason of the affidavit, as extracted above, the petitioner cannot be terminated from service since the affidavit filed by the petitioner and, as extracted above, is only true to facts. There is no falsehood in it. 5. We may also, in this context, having gone through the records and having heard the learned Additional Advocate General, make a note of the fact that there is no stipulation anywhere in the Recruitment Rules that a candidate shall not apply in more than one 4 district. The only stipulation is that “the candidate must be registered with the Employment Exchange of the district concerned and should be a bonafide resident of Himachal Pradesh.” The petitioner has registered himself with the Bilaspur Employment Exchange and is bonafide resident of the State of Himachal Pradesh. Viewed from that angle also, it cannot be said that the petitioner is, in any way, disqualified. The decision of the Supreme Court in K.G. Ashok Kumar and others Vs. Kerala Public Service Commission and others (2001) 5 SCC 419 has no application to the facts of this case since the statutory provision in Kerala analysed and applied is not available in Himachal Pradesh. 6. In that view of the matter, we set aside the judgment of the learned Single Judge and allow the writ petition, holding that termination of the petitioner, as per Annexure A-9, is unjustified, being without reference to relevant considerations. The petitioner shall be forthwith reinstated in service with continuity in service . However, since the petitioner has not actually worked during the interregnum, he shall not be entitled to any backwages. Except for the actual backwages, he shall be entitled to all other service benefits. The appeal is allowed as above. The pending application(s), if any, also stands disposed of. (Justice Kurian Joseph), Chief Justice September 20, 2010(K) (Justice Kuldip Singh), Judge