Granting repeated extension beyond permissible limits is illegal: Himachal Pradesh High Court

 Hig h C o urt of H.P on 21 01 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWP No. 28620 Reserved on : 02.01.2021 Decided on: 05.01.2021Shalini Thakur …Petitioner. Versus State of H.P. and another …Respondents.___________________________________________________________________Coram:Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.Hon’ble Ms. Justice Jyotsna Rewal Dua Judge.Whether approved for reporting 1 YesFor the Petitioner: Mr. Ramakant Sharma Senior Advocate with Ms. Devyani Sharma Advocate.For the Respondents: Mr. Ashok Sharma Advocate General withMr.Vinod Thakur Mr. Shiv Pal Manhans Addl. A.Gs. Mr. Bhupinder Thakur and Mr.Yudhbir Singh Thakur Dy. A.Gs.Proceedings convened throughVideo Conferencing._________________________________________________________Justice Tarlok Singh Chauhan J. On 26.10.2018 Respondent No.2 issued anadvertisement for filling up of the posts of Veterinary Officerbatch­wise on contract basis in which 18 posts werereserved for General Category. 2.On 18.12.2018 the offer of appointment wasgiven to 11 candidates of General Category to the post ofVeterinary Officer and the petitioner was placed at serial No.1 Whether reporters of the local papers may be allowed to see the judgment yes Hig h C o urt of H.P on 21 01 HCHP 2 in the waiting list. As many as five candidates maderequests for extension in joining time. 3.On 05.01.2019 the respondents grantedextension in joining time to all such five candidates till17.6.2019. Extension was granted in favour of Dr. SunilKumar and Dr. Ashish Sharma on 9.1.2019. The father ofthe petitioner applied for information under Right toInformation Act 2005 and he was supplied the copy ofinstructions dated 9.9.2016. On 10.7.2019 Dr. NipunaThakur and Dr. Apoorva Shekhar were granted second timeextension by respondent No.1 to join duties till 16.12.2019.In August 2019 Dr. Deepika Sharma who was as at serialNo.1 in the waiting list was given appointment as Dr. SunilKumar did not join within the extended period.4.On 17.12.2019 the petitioner approachedrespondent No.1 with the request to offer her appointmentsince Dr. Apoorva Shekhar had not joined within theextended period i.e. 16.12.2019. On 24.12.2019 furtherthird time extension of 3 months and 15 days was grantedto Dr. Nipuna Thakur for joining the post upto 31.03.2020.On 28.2.2020 the Department of Personnel on havingreceived matter regarding appointment of Veterinary Officer advised respondent No.1 to give appointment to the2 Hig h C o urt of H.P on 21 01 HCHP candidate in waiting list in relaxation of rules. Thepetitioner sent request vide e­mail on 17.3.2020 torespondent No.1 to issue her offer of appointment. On12.5.2020 the petitioner again sent request vide e­mail torespondent No.1 to know about the status of her offerapplication. On 14.5.2020 vide Annexure P­19 respondentNo.1 rejected the claim of the petitioner for issuance of offerof appointment to the post of Veterinary Officer.5.Aggrieved by the aforesaid communication dated14.5.2020the petitioner has filed theinstant writ petition for the grant of following substantivereliefs:I)“A writ in the nature of writ of certiorari maybe issued thereby quashing and setting impugnedcommunication dated 14.5.2020anddirecting the respondents to issue offer ofappointment to the petitioner to the post of VeterinaryOfficer in the Animal Husbandry Department Himachal Pradesh without any further delay.II)Writ in the nature of mandamus may beissued directing the respondent to grant all monetaryas well as service benefits with effect from 18.6.2019or in the alternative at least with effect from17.12.2019 and all the arrears be ordered to be paidalongwith interest at the rate of 12% per annum.III)Special costs may be awarded in favour ofpetitioner and against respondent No.1 who has3 Hig h C o urt of H.P on 21 01 HCHP denied legitimate claim of the petitioner without therebeing any justification on his part.”6.The respondents filed their reply wherein it isaverred that the Departmental Selection Committee heldselection interview for 18 posts of Veterinary Officersand selected 18 candidates and waiting list of 7candidates was prepared. As per Government instructions the validity of the panel consisting of selection list andwaiting list was to remain valid operative for a period of oneyear which expired on 05.12.2019 therefore therepresentation of the petitioner was rightly rejected on17.12.2019.7.On 27.10.2020 this Court after hearing the casefor a considerable time passed the following order:“It appears that some of the candidatesnamely Dr. Apoorva Shekhar and Dr. Nipuna weregranted extension of time beyond what wasstipulated in the instructions issued by theGovernment on 9th September 2016wherein the maximum period of extension that can beprovided to a candidate for joining is only six months.In the reply filed by the respondents a specificstand has been taken that the respondents were wellwithin their right to extend this period beyond sixmonths. We are at complete loss to understand as tothe source of power available with the respondentsfor extending this period beyond six months in teethof the instructions dated 9th September 2016to the Government of HimachalPradesh to file his personal affidavit in this regardbefore the next date of hearing.”8.In compliance to the aforesaid directions theAdditional Chief Secretaryhas filed herpersonal affidavit the relevant portion whereof reads asunder:“3. That Dr. Apoorva Shekhar and Dr. Nipuna Thakurvide their representation dated 20.12.2018 hadrequested to the respondent State to grant themextension in joining time till 30.06.2019 and 10months respectively on the ground that they arepursuing their Ph.D. IIIrd year from their respectiveinstitutions need more time to complete theirresearch work. The representations of Dr. ApoorvaShekhar and Dr. Nipuna Thakur are annexed asAnnexures RA­1 and RA­2 respectively with thisaffidavit.4.That the matter of Dr. Apoorva Shekhar andDr. Nipuna Thakur was placed before the Hon’bleMinister­in­Charge for taking appropriate decision.The Hon’ble Minister had approved only six monthsextension in their favour and was conveyed to themvide letters dated 05.01.2019regarding furtherextension of time were placed before the Hon’bleChief Minister H.P. for taking appropriate decision inthe matter and the Hon’ble Chief Minister hasapproved the extension period for next six months till16.12.2019 and in the meantime the waiting listexpired.7.That Dr. Apoorva Shekhar on 16.12.2019 hasinformed that due to some unforeseen circumstancesshe was reluctant to joining her services as requiredon 16.12.2019 and had submitted her No ObjectionCertificateto the Department.8.That Dr. Nipuna Thakur again third time videher representation dated 28.11.2019 had requestedthat due to ill health and being severally jaundicedfor 3­4 months her work was severally compromisedand she could not finish the same within thestipulated time and as such she may be providedfurther extension of eight months period upto August 2020 to join her duty.9.That approval to grant extension in joining timein favour of Dr. Nipuna Thakur on Medical groundupto 31.03.2020 as per her request as a special casewas given.10.That after 31.03.2020 Dr. Nipuna Thakur hasagain requested for extension in joining time vide herrepresentation dated 15.04.2020but the requesthas been rejected by the respondent State and theDepartment vide notification dated 02.07.2020(Annexure RA­6 annexed with the present affidavit)has terminated the services of Dr. Nipuna Thakur.The compliance affidavit may kindly be taken onrecord in the interest of justice.”6 Hig h C o urt of H.P on 21 01 HCHP 9.It would be evident from the perusal ofparagraph 6 of the affidavit that the instructions governingthe field are not clear about the further extension beyondsix months before lapse of appointment automatically. Inorder to trust the correctness and veracity it would benecessary to reproduce this notification in its entirety andthe same reads as under:“No.PerDated Shimla­171002 the 9th September 2016FromAdditional Chief Secretaryto theGovernment of Himachal Pradesh.To1. All the Administrative Secretaries to theGovernment of Himachal Pradesh.2. All Divisional Commissioners in HimachalPradesh.3. All Head of Departments in Himachal Pradesh.4. All Deputy Commissioners in HimachalPradesh.Subject:Candidates recommended by the PSC SSC forappointment to State Services Posts­ delay injoining revival of offer of appointment aftertheir cancellation ­determination of senioritythereof. Sir I am to refer to the subject cited above and to say thatit has come to the notice of the Government that in certaincases the candidates recommended by the PSC SSC or anyother recruiting authority for appointment take long time tojoin by seeking extension in joining time and in spite of thelong delay in joining the candidates are allowed the benefitof seniority on the basis of their initial selection. Thequestion whether in such cases it would not be desirable todepress the seniority of the candidates who are appointedon the result of the selections by interviews examinationwas considered and it has been decided that the following7 Hig h C o urt of H.P on 21 01 HCHP procedure may be adopted now. This procedure will beapplicable both in case ofselection through interview and(b) examinations.(i) In the offers of appointment issued by differentMinistries Departments it should be clearlyindicated that the offer would lapse if thecandidates did not join within a specified period(which shall not normally exceed one month).(ii)If however within the period stipulated arequest is received from the candidate(s) forextension of time it may be considered by theMinistries Departments and if they aresatisfied an extension for a limited period ofthree months may be granted but extensionbeyond three months should not be grantedliberally and it may be granted only as anexception where facts and circumstances sowarrant and in any case only upto a maximumof six months from the date of issue of theoriginal offer of appointment. An offer ofappointment would lapse automatically afterthe expiry of six months from the date of issueof the original offer of appointment. Thecandidates who join within the above period ofsix months will have their seniority fixed underthe seniority rules applicable to the service postconcerned to which they are appointed withoutany depression of seniority.(iii)If even after the extension(s) if any granted bythe Ministry Departments a candidate does notjoin within the stipulated timethe order ofappointment should lapse automatically.(iv)An offer of appointment which has lapsed should not ordinarily be revived later except inexceptional circumstances and on grounds ofpublic interest. The Commission should in allcases be consulted before such offers arerevived.(v)In a case where after the lapsing of the offer theoffer is revived in consultation with the PublicService Commission as mentioned in sub­para(iv) above the seniority of the candidatesconcerned would be fixed below those who havealready joined the posts concerned within theprescribed period of six months and if thecandidate joins before the candidates of thenext selection examination join he should be8 Hig h C o urt of H.P on 21 01 HCHP placed below all others of his batch. If however the candidate joins after some or all thecandidates of the next selection examinationhave joined he should be:(a)in cases of selection through interview placed at the bottom of all thecandidates of the next batch.(b) in the case of examination allotted tothe next years batch and placed at thebottom.2.These instructions may also be brought to the noticeof all concerned for strict compliance.Yours faithfully Sd ­to theGovernment of Himachal PradeshTelephone No.0177­2622382.”10.A combined reading of the aforesaid notificationreveals that the instructions on the subject are absolutelyclear that maximum of six months from the date of issue ofthe original offer of appointment can be granted to acandidate to join which could not have in any conditionbeen extended by any person or authority as the same wasnot permissible in accordance with the notification dated 9thSeptember 2016.11.A Bench of five Judges of the Hon’ble PatnaHigh Court has considered the binding effect of executiveinstructions in Satrudhan Sahani and others vs. TheState of Bihar and others AIR 199221 wherein ithas been held that not only the statutory provisions aremeant to be obeyed or enforced but even executive9 Hig h C o urt of H.P on 21 01 HCHP instructions issued by the State Government are expectedto be followed and obeyed. The very object of issuance ofsuch executive instructions is to avoid arbitrariness inmatters of grant of contracts licence quotas mineral rightsand rights in Jalkars so that there is no element of personalbias or extraneous consideration. The difference between theviolation of a statutory provision and an executiveinstruction is that so far the procedures indicated in thestatutes which are integral parts thereof are not followed inform but even in substance on the basis of the well knownrules laid down by the Courts that if a statute provides aparticular procedure for an act to be done it should be donein that manner or not at all. On the other hand so farexecutive instructions are concerned they are only meantto be followed but if while complying such instructions inrelation to grant of contracts licence rights in minerals andJalkars there has some deviation unless such deviationcan be held to be hit by Article 14 of the Constitution i.e.arbitrary irrational or mala fide the grant or the settlementipso facto shall not become invalid. It shall be apposite torefer to the relevant observations as contained inparagraphs 8 to 18 which read as under:“8.It appears that the aforesaid view has notfound favour with the Supreme Court in its later10 Hig h C o urt of H.P on 21 01 HCHP decisions in the cases of Ramana Dayaram Shetty v.The International Airport Authority of India AIR 1979SC 1628 Kasturilal Lakshmi Reddy etc. v. The Stateof Jammu and Kashmir AIR 1980 SC 1992 and Ramand Shyam Company v. State of Haryana AIR 1985SC 1147. In the case of Ramana Dayaram Shetty v.The International Airport Authority of India andotherslarger question was formulated by theSupreme Court as to what are the constitutionalobligations of the State when it takes action inexercise of its statutory or executive power Is theState entitled to deal with its property in any mannerit likes or award a contract to any person it chooseswithout any constitutional limitations upon it Whatare the parameters of its statutory or executive powerin the matter of awarding a contract or dealing withits property After pointing out that "modern welfareState which is committed to egaliterian values anddedicated to the rule of law" it was held that "havingregard to the constitutional mandate of Article 14 asalso the judicially evolved rule of administrative law the 1st respondent was not entitled to act arbitrarilyin accepting the tender of the 4th respondent butwas bound to conform to the standard or norm laiddown in para 1 of the notice inviting tenders whichrequired that only a person running a registered IIndClass hotel or restaurant and having at least 5 years experience as such should be eligible to tender". Itwas further pointed out that the action of theAuthority in accepting the tender of the 4threspondent even though they did not satisfy theprescribed condition of eligibility "was clearlydiscriminatory since it excluded other personssimilarly situate from tendering for the contract". Itmay be mentioned that the petitioner of that case hadneither entered into any agreement nor anyregistered document had been executed in his favourbut that objection did not stand in his way whileinvoking the writ jurisdiction of the High Court.9. In the case of Kasturi Lal Lakshmi Reddy etc. v.The State of Jammu and Kashmiragain itwas pointed outit was said that Governmentis not free like an ordinary individual in selectingrecipient for its largesse and it cannot choose to dealwith any person it so pleases "in its absolute andunfettered discretion" and Courts can examine suchactions on the touch­stone of reasonableness andpublic interest.11. In yet another case Shri Harainder Singh Arora v.Union of India AIR 1986 SC 1527 the tenders wereinvited for supply of fresh buffalo and cow milk. Theappellant before the Supreme Court was eligible forsubmitting tenders. Although his tender was lowest the tender of Government Milk Scheme wasaccepted. It was said2 JT 401 it was pointed outby a Bench of the Supreme Court: "In recent times judicial review ofadministrative action has become expansiveand is becoming wider day by day. Thetraditional limitations have been vanishing andthe sphere of judicial scrutiny is beingexpanded. State activity too is becoming fastpervasive. As the State has descended into thecommercial field and giant public sectorundertakings have grown up the stake of thepublic exchequer is also large justifying largersocial audit judicial control and review byopening of the public gaze these necessitaterecording of reasons for executive actionsincluding cases of rejection of highest offers.That very often involves long stakes andavailability of reasons for action on the recordassures credibility to the action disciplinespublic conduct and improves the culture ofaccountability. Looking for reasons in support ofsuch action provides an opportunity for anobjective review in appropriate cases both bythe administrative superior and by the judicialprocess." 13. In view of series of judgments of the SupremeCourt now it is not possible to dismiss a writapplication filed on behalf of a person who feels thathe has been discriminated by the State Governmentor an Authority which can be held to be a State within the meaning of Article 12 of the Constitution inmatters of settlement of fishery rights in tanks landjalkars belonging to the State only on the groundthat no registered document has been executed infavour of such petitioner by the competent authority.When the Supreme Court by the aforesaid orderpassed in connection with this case itself directedthat the writ application be heard on merit aftersetting aside the earlier order passed by this Court in my view the decision of the Full Bench in ChetlalSao s caseon the question of maintainabilityof a writ application in absence of a registereddocument stands overruled.14. Now the question as to whether the other part ofthe decision in Chetlal Sao s casesaying thatadministrative instructions and circulars issued fromtime to time for the lease of fishery rights in tanks13 Hig h C o urt of H.P on 21 01 HCHP sairats) vested in the State are not statutory innature and binding on the Government has also beenoverruled by the Supreme Court needs to beexamined. On behalf of the petitioners it was pointedout that as the earlier order passed by this Court inthis application was based on the Full Benchjudgment in Chetlal Sao s caseit will bedeemed that the aforesaid Full Bench judgment hasbeen overruled even so far its view in respect of thenature of administrative instructions and circulars isconcerned.15. From a bare reference to the earlier order passedby this Court it shall appear that this application hadbeen dismissed only on the ground that it was notmaintainable as no registered instrument had beenexecuted in favour of the petitioners which wasnecessary before the petitioners could invoke the writjurisdiction of this Court in view of the judgment ofthe Supreme Court in the case of The Bihar EasternGangetic Fishermen Cooperative society Ltd. v.Sipahi Singhand Full Bench judgment in thecase of Chetlal Sao v. The State of BiharThiswrit application had not earlier been dismissed onthe ground that the petitioners could not complain ofthe violation or contravention of the administrativeinstructions issued by the State Government inrespect of settlement of fishery rights As such bythe aforesaid order passed in this case by theSupreme Court it shall not be deemed that even theview expressed by the Full Bench in the case ofChetlal Sao v. The State of Biharin respect ofbinding nature of the administrative instructions andcirculars issued by the State has also beenoverruled.16. Dr. Sadanand Jha appearing for the petitioners made reference to some judgments of the SupremeCourt where it has been pointed out that when anyorder or circular has been issued by the StateGovernment and if they are not followed the personsaggrieved can move courts for a direction to the StateGovernment to follow their own bye­laws andexecutive orders. In the case of B.S. Minhas v. IndianStatistical Institute AIR 1984 SC 363 :it was said that "if the bye­laws had been framedfor the conduct of the affairs to avoid arbitrariness respondent No. 1 cannot therefore escape theliability for not following the procedure prescribed bybye­laws thereto". Again in the case of Sadhu Singh14 Hig h C o urt of H.P on 21 01 HCHP v. State of Punjab AIR 1984 SC 739 :published under the authority of the Board ofRevenue it was observed that statutes and statutoryorders no doubt are to be obeyed but:­­ "It does not mean that other orders instructions etc. may be departed from in anyindividual case if applicable to the facts. Theyare not to be ignored until amended. TheGovernment or the Board may have the powerto amend these orders and instructions butnonetheless they must be obeyed so long asthey are in force and are applicable." Reference was also made to a recent judgment of theSupreme Court in the case of N.T. Bevin Katti etc. v.Karnataka Public Service Commission AIR 1990 SC1233 :had to consider an order dated 1­11­1980issued by the State Government laying down thepolicy and procedure for transfer and posting ofGovernment employees in the State of Bihar. Aquestion arose as to whether the said circular was15 Hig h C o urt of H.P on 21 01 HCHP mandatory in nature and as such the principles andpolicies laid down therein had to be followed to theletter infraction of which in any respect will result ininvalidity of the order of transfer. It was held that thepolicy and procedure laid down in that circularamounted to an executive instruction. It was furthersaid as follows:­­"We should notallowadministrative or executive efficiency toflounder on the rock of avoidable technicality.It is well to remember that administrative andexecutive efficiency or exigency should not betop readily sacrificed. But such would be theresults if the instruction is given a mandatoryforce. State would be completely deprived ofmuch needed play in its joints ." In that very case it was observed that even if theexecutive instructions are directory it does not meanthat they can be ignored because even directoryprovisions are not meant to be violated. But it washeld that breach of such instructions can beoverlooked provided there has been substantialcompliance. In the case of Bain Peanut Company ofTaxes v. Pinsons75 L Ed 482Holmes J. said:­­ "We must remember that the machinery of theGovernment would not work if it were notallowed a little play in its joints." That very observation was quoted with approval bythe Supreme Court in the well­known case of State ofJammu and Kashmir v. Triloki Nath Khosa AIR 1974SC 1 :SCC 591.14.Similar reiteration of law can be found in thetwo recent judgments of this Bench rendered in CWP No.35519 titled Dharmender Kumar vs. State of H.P.and others decided on 22.07.2020 and CWP No.3371 of2019 titled Robin Singh Mehta and others vs. State ofH.P. and others alongwith connected matters decided on12.11.2020.15.In the instant case as noticed above therespondents­State illegally granted repeated extension thattoo beyond the permissible limits to the two doctors namelyDr. Apoorva Shekhar and Dr. Nipuna Thakur thereby19 Hig h C o urt of H.P on 21 01 HCHP depriving the rights that too for no fault of the candidatesincluding the petitioner whose names were appearing in thewaiting list from joining before the panel expired. Thesecandidates had a right of consideration when the appointedcandidates did not join and the extension given to theseappointed candidates to join was otherwise illegal andcontrary to instructions issued by the Government.16.At this stage we are informed by the learnedAdvocate General that the petitioner has already beenappointed on batch­wise basis and has also joined. We findno merit in this contention.17.In view of the aforesaid discussion we findmerit in this petition and the same is allowed by quashingthe impugned notification dated 14.5.2020if any. Judge (Jyotsna Rewal Dua)5th January 2021. Judge (GR)21 

Summary: Granting repeated extension particularly for one person beyond the permissible limits is illegal. The grant of such extension deprives the candidates whose names have appeared in the waiting list for no fault. This assertion was made by the Himachal Pradesh High Court presided by J. Tarlok Singh Chauhan and J. Jyotsna Rewal Dua in the case of Shalini Thakur vs. State of Himachal Pradesh [CWP. No. 2865 of 2020]. In the instant case, offer of appointment was given to 11 candidates of General Category to the post of Veterinary Officer and the petitioner was placed at place second in the waiting list. As many as five candidates made requests for extension in joining time. The father of the petitioner applied for information regarding the extension under the RTI Act and was supplied with an instruction copy which stated that two doctors were granted extension for the second time by the respondent. The first in the waiting list did not appear and the petitioner therefore approached the respondent for appointment. Department of Personnel on having received matter regarding appointment of Veterinary Officer advised respondent to give appointment to the candidate in waiting list, in relaxation of rules. Further, third extension was given to another doctor. The petitioner sent request letter but the respondent rejected the claim for issuance of offer of appointment to the post of Veterinary Officer. The honorable High Court observed, “The respondents­ state illegally granted repeated extension, that too, beyond the permissible limits to the two doctors thereby depriving the rights for no fault of the candidates including the petitioner whose names were appearing in the waiting list from joining before the panel expired. These candidates had a right of consideration when the appointed candidates did not join and the extension given to these appointed candidates to join was otherwise illegal and contrary to instructions issued by the Government.”