IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.4004 of 2008 (OA (D) No. 41/1997) Judgment reserved on : 9.10.2009 Date of decision : 27.11. 2009. Satish Kumar …Petitioner. Versus State of H.P. & Others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 yes For the Petitioner : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. R. K. Sharma, Senior Additional Advocate General with Mr. A.K. Bansal, Addl. A.G. for respondent No.1. Mr. D.K.Khanna, Advocate for respondent No.2. Mr. Vijay Verma, Advocate for respondent No.3. Kuldip Singh, Judge The petitioner in the petition has prayed for quashing of selection of respondent No.3 as Lecturer in Music (Vocal) and his appointment against the vacancy reserved for an ex-serviceman / dependant ward of an ex-serviceman. It has also been prayed that petitioner be declared to have been selected and appointed against the vacancy in question of Lecturer in Music (Vocal) from the date 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 the respondent No.3 was appointed and joined his duties with all consequential benefits of pay etc. 2. The pleaded case of the petitioner is that respondent No.2 had issued an advertisement on 1.11.1994 Annexure A-1 which was published in newspapers, including daily Tribune inviting applications for filling up some posts of Lecturers (College Cadre) in the subject of Music (Vocal) etc. Thereafter, a corrigendum was issued by respondent No.2 which was not advertised in any newspaper to the knowledge of petitioner. One post of Lecturer in the subject of Music (Vocal) was reserved for ex-serviceman candidate and if suitable ex-serviceman candidates were not available, dependent sons / daughters of ex-servicemen were also eligible for the same. 3. The petitioner was eligible as per advertisement, he submitted his application on prescribed form for the post of Lecturer Music (Vocal) as a ward and dependant of ex-serviceman. The petitioner qualified the screening test, he was directed to appear for personal interview on 14.12.1995. The petitioner appeared before the interview board, constituted for the said purpose, the respondent No.3 was also interviewed for the post in question by the board. The respondents No. 1, 2 did not publish the result of the interview or selection in any newspaper nor the same was displayed on the notice board of the office of respondent No.2 at any point of time as far as subject of Music (Vocal) was concerned. The petitioner was kept in dark about the selection and appointment of Lecturer Music (Vocal) for sufficient long time and only in first week of March, 1996 he came to know that respondent No.3 was appointed as a 3 Lecturer in Music (Vocal) by respondents No.1 and 2 at Government College, Karsog. 4. The petitioner filed CWP No. 325 of 1996 in this Court along with Miscellaneous Application restraining respondents No.1 and 2 from appointing the respondent No.3 against the post of Lecturer in Music (Vocal) as a ward of an ex-serviceman against the reserved vacancy. The petitioner in the writ petition had prayed for setting-aside the selection and appointment of respondent No.3 as Lecturer in Music (Vocal) and had also prayed for his appointment against the vacancy in question. The petition was dismissed by a Division Bench on 17.10.1996 on the point of jurisdiction. Thereafter, the petitioner filed O.A. before erstwhile Tribunal, which has been abolished and the cases of the erstwhile Tribunal have been transferred to this Court. 5. The petitioner has assailed the selection and appointment of respondent No.3 as Lecturer in Music (Vocal) against a reserved vacancy for an ex-serviceman and in the alternative in favour of a ward dependant of an ex-serviceman on the grounds that selection and appointment of respondent No.3 is against the rules and decisions of the State Government. The respondent No.3 was already employed as Lecturer Music (Vocal) on adhoc basis before his selection and, therefore, he ceased to be dependent ward of an ex-serviceman and was not eligible for being considered for selection and appointment against a vacancy reserved for ex-serviceman, failing which, a dependent ward of an ex-serviceman. 4 6. The father of respondent No.3 Sh. Gupteshwar Singh after release from armed forces was re-employed as driver against a vacancy reserved for ex-serviceman and he was still continuing on the said post in the office of Sub Divisional Magistrate (S.D.O. Civil), Karsog and, therefore, respondent No.3 could not have been considered for selection and appointment against a vacancy reserved for a ward of an ex-serviceman which is clear from the note below Rule 3 (1) of the Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal Pradesh Non-Technical Services) Rules, 1972 (for short 1972 Rules). The respondent No.3 had concealed the fact that his father had already taken the benefit of ex-serviceman when he was re-employed after release from armed forces against a vacancy reserved for an ex-serviceman. 7. The appointment of respondent No.3 has also been challenged on the ground that he was lesser qualified in comparison to petitioner. The petitioner has alleged that selection and appointment of respondent No.3 is violative of Articles 14, 16 and 21 of the Constitution. 8. The respondent No.1 has contested the petition by filing reply. The respondent No.1 has taken the stand that respondent No.3 was recommended by respondent No.2 for appointment to the post of Lecturer Music (Vocal). Accordingly on the basis of recommendations received from respondent No.2, the appointment order of respondent No.3 was issued. The respondent No.1 has ultimately prayed for dismissal of the petition. 9. The respondent No.2 has also contested the petition by filing the reply and denied that result of Lecturer Music (Vocal) 5 was not declared. It has been asserted that the result was declared and displayed on the notice board. The recommendation was sent to respondent No.1 on 12.01.1996. It has been denied that respondent No.3 was not eligible for appointment. The selection was made on the basis of overall assessment of merit based on academic achievements, teaching experience, personality, general awareness, conceptual approach, expression, articulation and professional knowledge. On the basis of merit, the petitioner could not be selected. The Government of Himachal Pradesh has clarified vide letter dated 7.1.1993 that persons engaged on Volunteer / Contract / Tenure / Daily Wages cannot be regularized automatically. Therefore, according to the said instructions, respondent No.3 could not be deprived of the benefits of being a ward of an ex-serviceman. Respondent No.2 has prayed for dismissal of the petition. 10. The respondent No.3 has also contested the petition by filing reply and he has taken preliminary objections of limitation, resjudicata in view of decision dated 17.10.1996 in CWP No. 325 of 1996. On merits, respondent No.3 has admitted that he was already working on contract basis as Lecturer Music in Government College, Karsog. 11. The learned counsel for the petitioner has relied Trilochan Singh and others Vs. State of Haryana and others 1990 (6) S.L.R. 134 and has submitted that respondent No.3 was already employed as Lecturer Music (Vocal) on adhoc basis and, therefore, he ceased to be dependent ward of an ex-servicemen and was not eligible for selection and appointment as dependent 6 ward of ex-servicemen. In Trilochan Singh’s case respondent No.2 sought guidance from respondent No.1 and was informed that the persons working on adhoc basis against the posts advertised could not be treated as dependants of ex-servicemen since they had got their independent source of livelihood. Acting on the advice of respondent No.1, respondent No.2 did not treat the candidates working on adhoc basis against the posts advertised as dependent members of ex-servicemen. On those facts, it was held that no fault can be found with the decision taken by respondent No.2. The adhoc employees working against the posts of Ayurvedic Medical Officers were not dependants on the ex-servicemen since they had their independent source of livelihood. 12. In the present case the posts were advertised vide Annexure A-1 wherein it has been provided that if suitable Ex- servicemen candidates are not available, dependent sons / daughters of ex-servicemen will be considered for the posts reserved for ex-servicemen and if suitable dependent sons / daughters of ex-servicemen are also not available, general candidates will be considered for these reserved posts. It has been further provided in the advertisement that the sons / daughters of ex-servicemen who are employed on adhoc / volunteer/ daily wages / contract / tenure basis will also be considered as dependent sons / daughters of ex-servicemen. The petitioner has pleaded that respondent No.3 was earlier employed as adhoc Music (Vocal) Lecturer whereas respondent No.3 in his reply has pleaded that he was appointed on contract basis. Thus, from any angle the respondent No.3 was eligible for consideration as dependent ward 7 of ex-servicemen as per advertisement Annexure A-1. It is not the case of the petitioner that the father of respondent No.3 was not an ex-serviceman. The petitioner has not assailed advertisement Annexure A-1 vide which sons / daughters of ex-servicemen serving as adhoc / contract employees were also eligible as dependent wards of ex-servicemen. 13. It is also the case of the petitioner that note below Rule 3 (1) of 1972 Rules further provides that for the purpose of the said rule an ex-serviceman or a release army person shall cease to be so as soon as he joins the first civil employment under the State Government. It has been submitted on behalf of the petitioner that Sh. Gupteshwar Singh, father of respondent No.3 had already availed the benefit of ex-serviceman when he himself was re- employed as a driver against a vacancy reserved for ex- serviceman and was still continuing on the said post in the office of Sub Divisional Magistrate ( S.D.C. Civil) Karsog when respondent No.3 was selected and appointed as Lecturer Music (Vocal) against the vacancy reserved for ex-servicemen / ward of ex-servicemen. 14. The learned counsel for the respondents have submitted that note below Rule 3 of 1972 Rules was deleted by Rule 2 of Demobilized Armed Forces Personnel (Reservation of vacancies in Himachal State Non-Technical Services) Rules, (8th amendment) Rules 1985 (for short 1985 Amended Rules). Thus, according to respondents on the date of selection and appointment of respondent No.3 there was no bar to consider him against the vacancy of ward of ex-servicemen even if his ex-serviceman father had taken benefit of ex-serviceman by re-employing himself as 8 driver in the office of Sub Divisional Magistrate (S.D.O. Civil), Karsog. The learned counsel for the petitioner has submitted that 1972 Rules were further amended and vide notification dated 2.11.1992, the proviso was pre-inserted. In fact vide notification dated 2.11.1992, Demobilized Armed Forces Personnel (Reservation of vacancies in Himachal State Non-Technical Services) (1st amendment) Rules, 1992 ( for short 1992 Rules) were notified. As per Rule 2 of 1992 Rules, the following proviso was added :- “Provided that whatever vacancies are left over due to non- availability of suitable ex-servicemen who joined service or were commissioned on or after the 1st day of November, 1962, will be filled by suitable ex-servicemen who joined service or were commissioned before 1st day of November, 1962. The concessions such as relaxation in age as provided in these rules shall also be admissible to such ex- servicemen. However, the benefit of counting the period of approved military service for the purposes of fixation of seniority and pay as provided in Rule 5 (1) of these rules shall not be admissible to such ex-servicemen.” 15. The insertion of proviso vide 1992 Rules has not re- inserted note below Rule 3 (1) in 1972 Rules which was deleted by 1985 Amended Rules. This being the position, it cannot be said that by inserting proviso vide 1992 Rules the respondent No.3 ceased to be dependent ward of ex-serviceman even if his father availed the benefit of ex-serviceman by re-employing himself as driver in the office of Sub Divisional Magistrate (S.D.O. Civil) Karsog. Thus, there is no merit in this contention of the learned counsel for the petitioner. 9 16. It has also been submitted on behalf of the petitioner that respondent No.3 was lesser in merit in comparison to petitioner. It is not possible to accept this contention of the learned counsel for the petitioner by this Court. The respondent No.2 in the reply has stated that selection for the post was made on the basis of the candidate’s performance before the interview board. While assessing the merit and suitability of the candidate due consideration was also given to their academic record and other achievements. The selection was made on an overall assessment of merit by taking into several factors stated in the reply. Respondent No.2 has ultimately stated that on the basis of his merit so assessed by the Commission, the petitioner could not be selected. The petitioner has failed to make out any case. There is no merit in the petition. 17. No other point was urged. 18. As a result of the above discussion, the petition fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), November 27, 2009, Judge. (GR)