IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1594 of 2008, CWP (T) No. 7605 of 2008 & CWP (T) No. 7609 of 2008. Decided on: 27.7.2009. ________________________________________________ CWP No. 1594 of 2008: Shri Man Singh … Petitioner. Versus The State of H.P. and others. .… Respondents. ___________________________________________________________ CWP (T) No. 7605 of 2008: Shri Suraj Bahadur … Petitioner. Versus The State of H.P. and others. .… Respondents. ___________________________________________________________ CWP (T) No. 7609 of 2008: Shri Raj Kumar … Petitioner. Versus The State of H.P. and others. .… Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. CWP No. 1594 of 2008: For the petitioner : Mr. A.K. Gupta, Advocate. For Respondents No. 1 to 3 : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. CWP No. 7605 of 2008: For the petitioner : Mr. Dilip Sharma, Advocate. For Respondents No. 1 & 2 : Mr. Shashi Shirshoo, Adv. CWP No. 7609 of 2008: For the petitioner : Mr. Jagdish Thakur, Advocate. For Respondent No. 1 : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. For Respondent No.2 : Shri Shashi Shirshoo, Adv. ___________________________________________________________ 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Rajiv Sharma, Judge. Since common questions of law and facts are involved in these petitions, they have been taken up together for hearing and are being disposed of by a common judgment. The core issue involved in these petitions is the manner in which the services of Nepalis are to be regularized. The Court had issued various directions from time to time to elicit information from the State Government the manner in which the services of the petitioner and similarly situate persons are to be regularized. The State Government has placed on record copy of resolution dated 1.3.1977. The text of letter dated 1.3.1977 reads thus: “The Government of India have decided that in supersession of earlier instructions regarding the eligibility for appointment under the Government of India, the standard rule for recruitment will henceforth be modified as follows: A candidate for appointment to any Central Service or post must be- (a) a citizen of India, or (b) a subject of Nepal, or (c) a subject of Bhutan, or (d) a Tibetan refugee who came over to India before the Ist January, 1962, with the intention of permanently settling in India, or (e) a person of Indian origin who has migrated from Pakistan, Burma, Sri Lanka, East African countries of Kenya, Uganda, the United Republic Zambia, Malawi, Zaire and Ethiopia with the intention of permanently settling in India. Provided that a candidate belonging to categories (b), (c), (d) and (e) shall be a person in whose 3 favour a certificate of eligibility has been issued by the Government of India. Provided further that candidates belonging to categories (b), (c) and (d) above will not be eligible for appointment to the Indian Foreign Service. A candidate in whose case a certificate of eligibility is necessary may be admitted to an examination or interview conducted by the Union Public Service Commission or other recruiting authority, but the offer of appointment may be given only after necessary eligibility certificate has been issued to him by the Government of India. Order: Ordered that a copy of this Resolution may be communicated to all State Governments, all Ministries of the Government of India etc. and also that the Resolution be published in the Gazette of India.” In sequel to resolution dated 1.3.1977, the Ministry of Home Affairs had issued office memorandum dated 10.5.1978. The operative portion of the letter reads thus: “4. The question whether certificate of eligibility in terms of Resolution referred to above should continue to be issued by this Department or whether any delegation can be made in this regard has been examined in the context of the present policy to maximize delegation and to reduce delay in appointments. It has now been decided that the certificate of eligibility should, in future, be issued by the Ministry/Department itself which is administratively concerned with the post where the candidate is likely to be appointed on the basis of the information referred to in para 2 above, being received from the authorities concerned.” 4 The Commissioner-cum-Secretary (Home) has sought certain clarifications on the issue of certificate of eligibility in the case of Shri Sita Ram Bhadur on 22.2.1996. The Ministry of Personnel, Public Grievances and Pensions have sent the following communication to the Commissioner-cum-Secretary (Home), Government of Himachal Pradesh in the month of March, 1996. The text of the letter reads thus: “I am directed to refer to your letter No. Home-B (E)3-2/95, dated the 22nd Feb., 1996 on the subject mentioned above and to say that as per the standard rule for recruitment laid down in this Department’s Resolution No. 15014/3 (s)/76-Estt. (B) dated the Ist March, 1977, a subject of Nepal shall be eligible for appointment to a Central Service or posts provided a certificate of eligibility in his favour has been issued by the Government of India. Vide delegation made in the Department of Personnel & A.R. O.M. No. 15016/1/78- Estt. (B) dated the 10th May, 1978 (copy enclosed), “a certificate of eligibility is now to be issued by the Ministry/Department itself which is administratively concerned with the posts where the candidate is likely to be appointed. The State Public Services have been included in the List II-State List of the Seventh Schedule to the Constitution of India. Accordingly, it is for the Government of Himachal Pradesh to consider and take a decision on the requests made by Shri Sita Ram Bhadur and Smt. Kaushalya Devi for issuing a certificate of eligibility in their favour keeping in view the policy instructions on the subject issued by the State Government.” 5 The State Government has issued notification dated 15.2.2007 whereby Recruitment and Promotion Rules for Beldar Non-Gazetted Class IV in the Department of Agriculture, Himachal Pradesh were notified. According to Rule 14, a candidate for appointment to any service or post must be a citizen of India. The State Government while issuing these rules have not taken into consideration the resolution passed by the Central Government on 1.3.1977 and the office memorandum dated 10.5.1978. The Court passed the following order on 20.5.2009: “The learned Senior Additional Advocate General has placed on record letter dated 5.5.2009 addressed by the Director of Agriculture, Himachal Pradesh to the Principal Secretary (Agriculture). The text of the letter dated 5.5.2009 reads thus: ‘In this context, it is submitted that earlier, the matter for issuance of eligibility certificate was taken up with Govt. of India and it was advised vide letter No. E.11.4151/2000-PT.I, dated 11.2.2000 that Citizenship Certificate is a statutory document which is issued by the Ministry of Home Affairs, Govt. of India under Citizenship Act, 1955 and the citizen Rules, 1956 as per letter No. 140302/2 (s)/96-Estt. (B) dated 26.3.1996 wherein the Govt. of India vide delegation made in the Department of Personnel and A.R. O.M. No. 15016/1/78 Estt. (B), dated 10.5.1978. A certificate of eligibility is now to be issued by the Ministry/Department itself which is administrative concerned with the post, where the candidate is likely to be appointed. The State Public Services have been included in the List II-State list of the seventh schedule to the Constitution of India keeping in view the policy instructions on the subject issued by the State Govt. (Copies enclosed). Further in 6 the case of Sh. Ram Bahadur, Dil Bahadur, Chander Bahadur and Laxman bahadur permission/approval was accorded by the Govt. vide letter No. Agr.E (3)4.2005-L, dated 3.6.2005 and 4.7.2005 (copies enclosed). It is requested that as per permission/approval in favour of above mentioned officials, necessary approval/ permission/eligibility certificate to regularize Sh. Man Singh, DPL and other DPLs, may kindly be conveyed at the earliest, so as to take further action in the matter accordingly.’ Accordingly, the Principal Secretary (Agriculture) is directed to take the decision within a period of three weeks from today. The decision shall be placed on record by way of affidavit. List after three weeks.” In sequel thereto, the State Government has filed an affidavit whereby certificate of eligibility has been issued in favour of the petitioner on 16.7.2009. Thereafter, the services of the petitioner-Shri Man Singh have been regularized vide office order dated 18.7.2009. The Secretary (Agriculture) to the Government of Himachal Pradesh has also issued a letter to the Director of Agriculture on 16.7.2009. The text of letter reads thus: “I am directed to refer to your letter No. Agr.H(I)(B)5- 7/2000-Vol-I (Sirmour), dated 16th July, 2009 on the subject cited above and to enclose herewith Eligibility Certificate in respect of Shri Man Singh, Beldar duly signed. So far as Political Clearance in respect of Shri Man Singh is concerned, you are requested to take up the matter with the Ministry of Home Affairs, Government of India, immediately under intimation to this Department. You are further requested to apprise the Hon’ble High Court of H.P. accordingly by filing an affidavit even on behalf of the Government i.e. Respondent No.1 immediately under intimation to this Department.” 7 It is evident from the reading of letters quoted hereinabove that only eligibility certificate is required in case of Nepalis. In fact, the services of Shri Man Singh stood regularized after issuance of eligibility certificate. So far as Political Clearance in respect of Shri Man Singh is concerned, the Directorate of Agriculture was requested to take up the matter with the Ministry of Home Affairs, Government of India. In view of the observations made hereinabove, since the decision has been taken in case of Shri Man Singh to regularize his services on the basis of eligibility certificate issued by the Head of Department, the same procedure is required to be followed in the cases of petitioners in CWP (T) No. 7605 of 2008, titled Suraj Bahadur Versus H.P.S.F.C. and CWP (T) No. 7609 of 2008, titled Raj Kumar Versus State of H.P. within a period of eight weeks. With the observations made hereinabove, the writ petitions are disposed of. No costs. (Rajiv Sharma), J. July 27, 2009. (cr)