IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 12569 of 2008 Judgment reserved on: 2.12.2010 Date of decision: 21.2.2011 Sumangala Devi and others …Petitioners. Versus State of H.P. and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioners : Mr. Lovneesh Kanwar, Advocate For the Respondents : Ms. Ruma Kaushik, Addl. Advocate General. Kuldip Singh, Judge The petitioners in the petition have prayed that act of the respondents in not considering the petitioners for appointment against the posts of Supervisors despite the pendency of O.A. No. 127 of 2003 may be declared illegal, arbitrary, unconstitutional and all the appointments made by respondents against the posts of Supervisors from amongst the Anganwari Workers and Bal Sevikas may be quashed. 2. The brief facts of the case are that the petitioners had been working as Anganwari Workers in different Anganwari Centres of Kangra Project. The respondent No.2 issued an 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 advertisement dated 22.10.2002 which was published in daily ‘Amar Ujala’ on 28.10.2002 for filling up 242 posts of Supervisors from amongst matriculate Anganwari Workers with five years of service or matriculate Bal Sevikas with five years service and they should have undergone training for 11 months or matriculate Bal Sevikas with five years of service who possess certificate of Cutting and Tailoring from recognized I.T.I. 3. The respondent- Department had imposed condition of five years of service as Anganwari Workers in the advertisement, the petitioners were aggrieved with such conditions, therefore, they filed O.A. No. 127 of 2003 in the erstwhile Tribunal challenging the conditions contained in the advertisement. The petitioners claimed their eligibility for the post of Supervisors. 4. On 10.1.2003 in O.A. No. 127 of 2003 the Tribunal directed the respondents to accept the candidature of the petitioners provisionally. In compliance to the directions of the Tribunal, the respondents entertained the petitioners and issued the roll numbers to the petitioners alongwith other Anganwari Workers, who were also petitioners in O.A. No. 127 of 2003. The petitioners appeared in the written test on 19.1.2003 along with other Anganwari Workers of the State. 5. The respondents declared and published the result on 8.5.2005 of written examination conducted on 19.1.2003. The petitioners, who were ordered to be entertained provisionally, had also been declared pass in the written examination. The interview letters were issued to the petitioners for the post of Supervisors and petitioners appeared in the interview on different dates from 3 27.5.2005 to 18.6.2005. The petitioners gave their performance to the entire satisfaction of the Interview Committee. 6. The petitioners were hopeful of positive result but the petitioners were surprised to know that respondents had made appointments against the posts of Supervisors ignoring the claim of the petitioners on the ground that petitioners had not completed the requisite period of five years in the service of Department in October, 2002. 7. It has been stated that the eligibility of the petitioners for the posts of Supervisors is to be decided in O.A. No. 127 of 2003. The respondents during the pendency of O.A. No. 127 of 2003 cannot themselves declare the petitioners ineligible of their own. The act of the respondents in filling up the posts of Supervisors from amongst the other Anganwari Workers ignoring the petitioners is wholly illegal, unwarranted and unsustainable in the eyes of law. It has been stated that the appointments against the posts of Supervisors by respondents during the pendency of O.A. No. 127 of 2003 deserves to be quashed. 8. The respondents have violated F.R.10 which provides that no person can be appointed to a post in Government service without a certificate of health. It has been alleged that most of the appointed candidates have been allowed to join their duties at their respective place of posting without medical fitness certificates and without completing all other codal mandatory formalities. 9. It has been alleged that in Annexure A-1 annexed with O.A. No. 127 of 2003 all the petitioners had completed five years of service before 26.11.2002 the last date for receipt of the 4 applications, which was one month from the date of publication of the advertisement dated 28.10.2002. It has been stated that appointment letters were issued on 30.8.2005 in which it has been stated that said orders would be subject to the decision of O.A. No. 127 of 2003. In these circumstances, the petition has been filed. 10. The respondents No.1 to 3 have filed the reply. It has been stated that on the basis of Recruitment and Promotion Rules, the respondent department advertised 242 vacant posts of Supervisors on 28.10.2002 and candidates were directed to submit their applications, who are eligible on the date of advertisement within 30 days from the date of publication of the advertisement. 11. It has been stated that in the meantime 556 Anganwari Workers, who were ineligible had filed O.A. in the Tribunal and the Tribunal directed the respondent department to consider them in written test/interview on provisional basis. Accordingly, such candidates were considered on provisional basis. The ineligible candidates were not considered for appointment. It has been stated that only out of 1191 candidates, 238 candidates have been selected and offered appointment on 30.8.2005, who have joined their duties. It has been stated that no ineligible candidate has been given appointment as Supervisor. It has been stated that CWP No. 725 of 2005 was filed in the High Court for associating ineligible candidates in written test/interview. The High Court ordered that the respondents shall not appoint any ineligible person against the post of Supervisor in the Social Justice and Empowerment Department till further orders. The petitioners were not eligible as per Recruitment and Promotion Rules for the posts of Supervisors. The petitioners 5 had not completed prescribed experience of 5 years as on the date of advertisement i.e. 28.10.2002, petitioners have no case. The respondents No.1 to 3 have prayed for dismissal of the petition. 12. The petitioners have filed rejoinder. It has been stated that petitioners except Meena Kumari and Shashi Mankotia were having more than 5 years experience on the last date of submitting the application form as per experience certificate Annexure A-7 issued to them. The petitioners have reiterated the stand taken by them in the petition. 13. I have heard the learned counsel for the parties. It has been submitted on behalf of the petitioners that during the pendency of the petition the respondent department has appointed Supervisors ignoring the claim of the petitioners. The learned counsel for the petitioners has submitted that respondents have wrongly rejected the claim of the petitioners even though, the petitioners had requisite five years of service as per advertisement which is clear from Annexure A-7. The stand of the respondents is that on the date of publication of advertisement on 28.10.2002 the petitioners were not having the requisite experience as per advertisement. The requisite experience was required on the date of publication of the advertisement and not thereafter. The petitioners were not eligible as per the advertisement, therefore, they are not entitled for appointment as Supervisors. 14. In O.A. No. 127 of 2003, the petitioners have specifically pleaded that on completion of their 5 years in the service as Anganwari Workers, they applied for the said posts, through proper channel, within stipulated period as shown in the advertisement. 6 The petitioners came to know that their roll numbers for the above said posts were not issued by the respondents due to the reason that they had not completed their five years. The petitioners regarding five years experience have again raised grievance in the present petition. The O.A.(D) No. 127 of 2003 titled Anita Randhawa vs. State of H.P. was dismissed as withdrawn on 20.9.2006. The petitioners had not sought the leave of the Tribunal to raise all contentions raised in O.A.(D) No. 127 of 2003 in subsequent petition. This being the position, the petitioners cannot be permitted to raise the issue of rejection of their applications for want of experience inasmuch as this contention was raised in O.A.(D) No. 127 of 2003 which was dismissed as withdrawn on 20.9.2006.The petitioners have relied on Annexure A-7 (P-7) regarding their experience. In annexure A-7, the experience has been shown on 27.11.2002 ranging from 4 years 10 months 28 days to 5 years 17 days. On 27.11.2002 no petitioner was having experience more than 5 years 30 days. In other words, on 28.10.2002 on the date of publication of the advertisement no petitioner was having experience of 5 years, thus as per the advertisement, the petitioners were not eligible for appointment as Supervisors for want of requisite experience. Therefore, no fault can be found with the respondents for not appointing the petitioners as Supervisors. 15. The petitioners have stated in the petition that appointment letters had been issued to all candidates against the posts of Supervisors by respondent department on 30.8.2005 but such appointees have not been impleaded as parties in the petition. 7 The appointees have acquired vested rights in pursuance of their appointments as Supervisors, therefore, no relief can be granted to petitioners in the petition which directly or indirectly affects the new appointees. Therefore, the petition is not maintainable for want of impleading persons appointed as Supervisors. In the petition, F.R.10 has also been touched on the ground that new appointees were allowed to join without codal formalities including medical fitness certificate. But at the time of hearing, no submission was made in support of this averment. Thus, seen from any angle, there is no merit in the petition. 16. The result of the above discussion, the petition fails and is accordingly dismissed. ( Kuldip Singh ), February 21, 2011 Judge. (GR)