IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 3513 of 2009. Decided on: August 3, 2010. Manoj Kumar & others. ….. Petitioners. Versus State of H.P. & ors. ….Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? Yes. For the petitioners: Mr. J.L.Bhardwaj, Advocate. For the Respondents: Mr. R.K.Sharma, Sr. Addl. AG. ---------------------------------------------------------------------------- Justice Kurian Joseph, C.J. (oral) The Writ Petition is filed mainly with the following prayer: “i) That a writ in the nature of mandamus may kindly be issued directing the respondents to complete the process for recruitment of petitioners as TGT (Arts) on the basis of the result declared on 30.10.2002 in pursuance to the written test conducted on 29.09.2002 as has been done with respect to TGT (Medical and Non-Medical) for which the petitioners humbly pray.” 2. The issue has a chequered history. The selection for various posts for teachers –Trained Graduate Teachers, in Medical, Non- Medical and Arts was commenced in the year 2002. The present Writ Petition pertains to the selection to the post of TGT (Arts). 224 vacancies were notified. The H.P. Subordinate Service Selection Board, conducted the written test on 26.9.2002. The results were declared on 30th October, 2002. In the meanwhile, on account of model code of conduct for Assembly Elections, the further process for interview could not be conducted. But, in the case of TGT (Medical) and TGT (Non-Medical), it is seen that the process was continued and the H.P. Subordinate Service 2 Selection Board forwarded the list to the government on 10.2.2002. It is further seen from the reply that on formation of the new government, instructions were issued “ to withhold all ongoing selection processes”. However, it is not in dispute that the appointments as far as the teachers in TGT Medical and Non-Medical are concerned, were made only in the year 2008 and 2009, the latest being in August, 2009. It is stated in the reply that the Government had cancelled the selection as far as the TGT (Arts) is concerned, by order dated 15.2.2010. Since no further details were available in the reply, we called for the files. It is seen from the file that the government had examined the matter in consultation with the Law Department and a decision was taken to cancel the selection. That communication is dated 15.2.2010, which reads as follows: “I am directed to refer to your letter No. Edn-H (2) B (2) 3513/09-Anil dated 24th December, 2009 on the subject cited above and to say that the matter has been examined at Government level in consultation with the Law Department. It has been decided that the process of recruitment of TGT (Arts) initiated by the HPSSSB, Hamirpur, during the year, 2002 be cancelled as the same cannot be completed at this belated stage. You are, therefore, requested to take further necessary action in the matter accordingly.” 3. It is also seen from the files that appointments were held up even after the formation of the new government in the year 2003, on account of certain allegations with regard to selection process. But, it is seen from the files that there was no allegation with regard to selection process in respect of TGT (Arts). From the communication from the Vigilance Department dated 1.5.2008, it is seen that the Vigilance had specifically informed the government that “ as far as Medical and Arts TGT recruitments are concerned, no irregularities were detected during the inquiries.” Thus, it is seen that in respect of selection for the streams where there were irregularities and even criminal cases registered thereof, 3 the government pursued the matter and made the appointments. But as far as the appointment of TGT (Arts) is concerned, despite the clearance from the Vigilance Department, the file was not processed to its logical end. 4. We find that the government processed the matter only after the present Writ Petition was filed on 1.10.2009. The opinion of the Law Department is furnished only on 29.1.2010. The opinion of the department is to the following effect, which reads as follows: “ N-37 (ante):- Examined in the Law Department. Perusal of the facts shows that a written test for 224 posts of TGT (Arts) was conducted by the H.P. Subordinate Service Selection Board on 26.9.2002 and the result of the written test was declared on 30.10.2002. In the meanwhile due to model code of conduct for Assembly Elections, the qualified candidates could not be interviewed. On formation of new Govt. instructions were issued to withhold all ongoing selection process including interviews as well as results (if not declared) thereof. The process of recruitment of TGT (Arts) was under process in the HPSSSB, Hamirpur and no recommendations for offering appointments have been received in the Directorate from the Board. Now, a CWP No. 3513/09 Anil Kumar v/s State of H.P. has been filed in the Hon’ble High Court seeking relief to the extent that directions be issued to the concerned authority to complete the process of recruitment of TGT (Arts) on the basis of the result declared by HPSSSB, Hamirpur on 30.10.2002 on the analogy of TGT, Medical and Non-Medical. Therefore, the A.D. has sought the opinion of Law Department as to whether the process of recruitment of TGT (Arts) initiated by the HPSSSB, Hamirpur during the year, 2002 can be completed at this stage or not. The said proposition of the A.D. has been gone through in this Department. So far as the question of TGT (Medical) and TGT (Non-Medical) is concerned, the case is altogether different as in the said case after the declaration of results of TGT (Medical and Non-Medical) list of selected candidates was also issued by the HPSSSB whereas the 4 same has not been done in the case of TGT (Arts). The case of TGT (Medical and Non-Medical) got the lease of life due to pending litigation on the basis of Law laid down by the Hon’ble Supreme Court in case State of U.P. v/s Ram Swaroop Saroj AIR 2000 S.C. 1997. Whereas no litigation was pending in the case of TGT (Arts). Therefore, in the opinion of this Department, keeping in view the facts narrated above, the process of recruitment of TGT (Arts) initiated by the HPSSSB, Hamirpur, during the year, 2002, can not be completed at this belated stage. This has the approval of Secretary (Law).” 5. The name of the case is not Anil Kumar versus State of H.P. but Manoj Kumar and others versus State of H.P and others. The decision in Ram Swaroop’s case is reported in AIR 2000 SC 1097 and not at 1997. In that case, the Supreme Court mainly considered as to whether appointments could be made from a list which had already expired but where the process was under scrutiny by the Court before the expiry of the select list. It was held by the Apex Court that the relief cannot be refused in such circumstances on account of expiry of the list particularly when there existed vacancies and when Writ Petition had been filed before the cancellation of the list. In this case, the cancellation is only on 15.2.2010 whereas the Writ Petition was filed in October, 2009. Infact, the very process of cancellation started only after filing the Writ Petition. There exist many more vacancies also, that were notified in the year 2002. Thus, the opinion tendered by the Law Department has absolutely no relevance in the matter. To some extent, the decision supports the case of the petitioner, as can be seen from para 10 of the judgment, which reads as follows: “10. Similarly, the plea that a list of selected candidates for appointment to the State services remains valid for a period of one year only is primarily a question depending on facts and yet the plea was not raised before the High Court. Secondly, we find that the select list was finalized in the month of November, 1996 and the writ petition was 5 filed by the respondent in the month of October, 1997, i.e. before the expiry of one year from the date of the list. Merely because a period of one year has elapsed during the pendency of litigation, we cannot decline to grant the relief to which the respondent has been found entitled to by the High Court. We may place on record that during the course of hearing of SLP before this Court, on 29-9-1999 we had directed the learned Additional Advocate General for the State of U.P. to bring on record on affidavit the status of present recruitment of the judicial officers and the present vacancy position in the subordinate judiciary. In the affidavit of Joint Secretary, Department of Appointment, State Government, Uttar Pradesh sworn in on 4-11-1999 and filed before this court it is stated that as on 14-10-1999 there were 231 vacancies existing in the cadre of Munsif Magistrates (now Civil Judge, Junior Division/Judicial Magistrates). That being the factual position we see no reason why the direction made by the High Court should be upset in an appeal preferred by the State of Uttar Pradesh.” 6. The selection process commenced was for appointment to the post of TGT (Medical), TGT (Non-Medical ) and TGT (Arts). The appointments were initially held up only on account of announcement of the model code of conduct in connection with Assembly Elections in the year 2003, and thereafter the long delay of 6 years is only on account of enquiry on the alleged irregularities in the selection process as far as the TGT (Medical) and TGT (Non-Medical), are concerned. In respect of those streams, the appointments have been made in 2008 and 2009. The only slender defence taken by the State is that the H.P. Subordinate Service Selection Board had already prepared the select list. As far as the TGT (Arts) is concerned, it is not in dispute that the written test had already been conducted and results also had been announced. What remained was only the interview and preparation of the select list. In view of the factual matrix, as explained above, we are of the view that it is only proper, just and reasonable that without discriminating the TGT (Arts) 6 candidates, the selection should reach its logical culmination. The same has been dropped on wholly baseless and irrelevant opinion tendered by the Law Department. No other reason is stated for cancelling the selection. Infact, the note file will give an indication that the recommendation was for the completion of the selection process. However, the government apparently was mis-led by the opinion tendered by the Law Department, which we have extracted above. 7. There is no case that the vacancies are not available. The vacancies do exist and State is in dire need of teachers. The petitioners who participated in the selection process and whose results had already been declared, have a right for legitimate expectation for completion of the process of the selection, as far as the notified vacancies are concerned. 8. In that view of the matter, the Writ Petition is allowed. There will be direction to complete the selection process for recruitment to the post of TGT (Arts), from the stage it was stopped. The same shall be completed within a period of three months from today. 9. With these observations, the Writ Petition is disposed of, so also the pending application(s), if any. Copy Dasti. (Justice Kurian Joseph), Chief Justice. August 3, 2010. (Justice Kuldip Singh), (karan) Judge.