IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 8082 of 2008. Reserved on:23.10.2009. Decided on: 26.10.2009. _______________________________________________________ Shri Suresh K. Rana … Petitioner. Versus The State of H.P. and others. … Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Arun Kumar Angirash, Advocate vice Mr. Bhuvnesh Sharma, Advocate. For Respondents No.1&2 : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. For Respondent No.3 : Nemo. __________________________________________________________ Rajiv Sharma, Judge. The petitioner joined Indian Army on 1.8.1980. He was discharged from service on 31.7.1997. He was called for special interview for the post of Police Constable reserved for Ex- servicemen on 23.2.2001. He appeared for the interview. However, the petitioner has not been issued appointment letter. The petitioner was placed at serial number 19 of the panel. The only ground mentioned for denying appointment to the petitioner is that he had already crossed “the break in service” period of four years on 1.8.2001 as per Annexure R-1. 1 Whether reporters of the local papers may be allowed to see the judgment?Yes. 2 Mr. Arun Kumar Angirash has urged that action of the respondents of not offering appointment letter to the petitioner is illegal and arbitrary. Mr. R.K. Sharma, learned Senior Additional Advocate General has argued that since the petitioner had already crossed “the break in service”, action of the respondents of denying him appointment is reasonable and legal. I have heard the learned counsel for the parties and have gone through the record carefully. The petitioner was called for interview as per Annexure A-3 on 23.2.2001. He has been discharged from the Army on 31.7.1997. The period of four years has not exceeded on the date when the petitioner was interviewed i.e. 23.2.2001. “The break in service” was crossed by the petitioner on 1.8.2001. In these circumstances, the action of the respondents of not offering appointment to the petitioner is patently illegal and unreasonable. The petitioner has been denied appointment on flimsy grounds. In fact, he had completed only three years and four months after his discharge at the time of interview. The State has to act fairly once the process has been initiated and the petitioner has been interviewed within a period of four years from his discharge. The action of the respondents of not offering him appointment is violative of Article 14 of the Constitution of India. The petitioner has legal right to be appointed after his interview in the quota of Ex- servicemen. Their Lordships of Hon’ble Supreme Court in Asha Kaul and another versus State of Jammu and Kashmir and others (1993) 2 Supreme Court Cases 573 have held that the 3 appointment cannot be denied without cogent and convincing reasons. Their Lordships have held as under: “8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subhash Chander Marwaha Mani Subrat Jain v. State of Haryana, State of Kerala v. A. Lakshmikutty) but that is only one aspect of the matter. The other aspect is the obligation of the government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category, - in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the government the government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any government can adopt such a stand with any justification today. This aspect has been dealt with by a Constitution bench of this court in Shankarsan Dash v. Union of India where the earlier decisions of this court are also noted. The following observations of the court are apposite: "IT is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has 4 been consistently followed by this court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatendra Kumar v. State of Punjab." Accordingly, in view of the observations made hereinabove, the writ petition is allowed. The respondents are directed to offer appointment to the petitioner to the post of Constable with all consequential benefits within a period of four weeks from today. No costs. (Rajiv Sharma), J. October 26, 2009. (cr)