Government cannot arbitrarily choose not to fill up vacancies: Himachal Pradesh High Court

 Hig h C o urt of H.P on 15 11 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACWP No. 3371 2019 a w CWP Nos.1864 1995 2020 2096 2100 2103to 2106 3558 3579 3712 3854 &3867 2019Reserved on: 3.11.2020Decided on : 12.11.20201. CWP No. 3371 2019Robin Singh Mehta & ors.…..PetitionersVersusState of H.P. and ors. ….Respondents2. CWP No. 1864 2019Opender Sharma & ors.…..PetitionersVersusState of H.P. and ors. ….Respondents3. CWP No. 1995 2019Pushpender Kumar …..PetitionerVersusState of H.P. and ors. ….Respondents4. CWP No. 2020 2019Vipin Kumar…..PetitionerVersusState of H.P. and ors. ….Respondents5. CWP No. 2096 2019Rajesh Kumar …..PetitionerVersusState of H.P. and ors. ….Respondents6. CWP No. 2100 2019Manoj Kumar …..PetitionerVersusState of H.P. and ors. ….Respondents Hig h C o urt of H.P on 15 11 HCHP 27. CWP No. 2103 2019Vinod Kumar …..PetitionerVersusState of H.P. and ors. ….Respondents8. CWP No. 2104 2019Dharmender Singh…..PetitionerVersusState of H.P. and ors. ….Respondents9. CWP No. 2105 2019Anita Devi …..PetitionerVersusState of H.P. and ors. ….Respondents10. CWP No. 2106 2019Urmila Devi …..PetitionerVersusState of H.P. and ors. ….Respondents11. CWP No. 3558 2019Ritambhara Sharma & anr.…..PetitionersVersusState of H.P. and ors. ….Respondents12. CWP No. 3579 2019Happy Thakur & ors.…..PetitionersVersusState of H.P. and ors. ….Respondents13. CWP No. 3712 2019Puneet Kashyap & ors.…..PetitionersVersusState of H.P. and ors. ….Respondents Hig h C o urt of H.P on 15 11 HCHP 314. CWP No. 3854 2019Nirmala Devi…..PetitionerVersusState of H.P. and ors. ….Respondents15. CWP No. 3867 2019Dinesh & ors.…..PetitionersVersusState of H.P. and ors. ….RespondentsCoram:The Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.The Hon’ble Ms. Justice Jyotsna Rewal Dua Judge.Whether approved for reporting 1 YesFor the Petitioner:Mr. Yogesh Kumar Chandel & Mr.Dinesh K. Thakur Advocates for therespective petitioners.For the Respondents: Mr. Ajay Vaidya Senior AdditionalAdvocate General for therespondent­State.Mr. Sanjeev Kumar Motta and Mr.Angrez Kapoor Advocates forrespondent­HPSSC.Mr. Neel Kamal Sharma Advocate for respondent­HPU.Mr. Dalip K. Sharma Advocate forrespondent­HP Para MedicalCouncil Shimla.Dr. Lalit K. Sharma Advocate forrespondents No.7 and 8 in CWPNo.3371 1864 3712 3867 2019 respondents No.6 and 7 in CWP No.3558 2019 and respondents No.8and 9 in CWP No. 3579 2019. Mr. Surender Sharma Advocate forrespondent­Technical EducationBoard.1 Whether reporters of the local papers may be allowed to see the judgment Yes. Hig h C o urt of H.P on 15 11 HCHP 4Justice Tarlok Singh Chauhan JudgeSince all these petitions relate to the selection andappointment to the posts of Radiographers therefore the samewere taken up together for hearing and are being disposed of bycommon judgment.2These cases have a chequered history. 3For the sake of convenience and in order to maintainclarity facts of CWP No. 3371 2019 are being referred to.4The H.P. Staff Selection Commissioner Hamirpurin September 2017 issued anadvertisement for filling­up 154 posts of Radiographers whereinessential educational qualification prescribed was as per theRecruitment and Promotion Rules i.e.(i) 10+2 pass in Sciencefrom a recognized Board of School Education Universitymust be registered with H.P. ParaMedical Council Shimla. 5In July 2018 the Commission conducted directevaluation process for these advertised posts of Radiographers. Hig h C o urt of H.P on 15 11 HCHP 56Thereafter on 15.12.2018 the Commission declaredthe result wherein two candidates Beli Ram and YogitaChauhan respondents No. 7 and 8 in CWP No. 3371 2019 wereselected whereas candidatures of the petitioners were rejectedby the Commission which compelled the petitioners andsimilarly situated persons to challenge the rejection order beforethe erstwhile H.P Administrative Tribunal by filing various O.As.These original applications were listed in the month of December2018 and the learned Tribunal passed interim directions holdingthe petitioners to be eligible for the post in question and directedtheir results to be prepared by the Commission. 7All these petitions were eventually disposed of videcommon order dated 22.5.2019 by directing the StateGovernment to constitute a committee of experts to examineequivalence of the academic technical qualifications possessedby the petitioners and recognition thereof and the Commission was directed to proceed with the matter in light of the report ofthe committee of experts. 8The State in turn vide notification dated 16.8.2019constituted an expert committee as was directed. The expertcommittee had conveyed its report dated 25.9.2019 holding the Hig h C o urt of H.P on 15 11 HCHP 6degrees possessed by the petitioners to be valid for the purpose ofrecruitment appointment and such findings have attainedfinality. However since the State failed to act even on the basisof the expert committee the petitioners were constrained toapproach this Court by filing instant petitions.9The claims raised in all these petitions can becategorized in three broad categories.10In the first category all the petitioners(exceptpetitioner No.16) in CWP No. 3371 2019 petitioner(s) in CWP No.1864 19 1995 19 2104 19 2105 19 petitioner No.2 in CWPNo. 3558 19 petitioners No. 2 3 5 7 8 and 11 in CWP No.3579 19 petitioners No.2 and 3 in CWP No. 3867 19 standappointed during the pendency of these petitions and now theonly subsisting and surviving claim in their cases is with regardto their seniority.11In the second category petitioner No.16 in CWP No.3371 2019 petitioners in CWP No. 1864 19 2105 19 petitioners No. 2 3 5 7 8 and 11 in CWP No. 3579 19 thoughwere considered but could not find place in the final selectionlist because of limited seats however on the basis of overall merit Hig h C o urt of H.P on 15 11 HCHP 7they succeeded to find place in the waiting list and have thusbeen kept in waiting panel.12In the third category petitioners in CWP No.2104 2019 and petitioners No. 2 &3 in CWP No. 3867 19 did notfulfill the eligibility criteria for want of essential educationqualification or their names had not been registered with H.P.Para Medical Council Shimla on the last date of submission ofonline recruitment application form(s). 13As regards first category as observed above there isno dispute with regard to their eligibility and educationalqualification and the only question relates to determination theirseniority. 14It is more than settled that if a candidate has beenwrongly excluded from the process of the appointment onaccount of illegal and arbitrary action on behalf of the State then he is entitled to notional seniority from the date thesimilarly situated persons have been appointed. Reference in thisregard can conveniently be made to a recent judgment of theHon ble Supreme Court in C. Jayachandran vs. State of Keralaand ors. 5 SCC 230 wherein it was observed as under:­ Hig h C o urt of H.P on 15 11 HCHP 835. The earlier writ petition filed by the appellant wasallowed on 13 th September 2010. The Division Bench ofthe High Court has directed to re­cast the seniorityamongst the seven shortlisted candidates. The appellantwas one of them. The challenge to the said order by threeaffected candidates remained unsuccessful when SLP wasdismissed by this Court on 8th October 2010. The SLPwas filed by the candidates who were granted benefit ofmoderation of marks. Once the direction of the DivisionBench has attained finality the appellant was entitled toseniority as per the select list to be revised as per merit ofthe candidates. In terms of Rule 6(2) the seniority is to bedetermined by the serial order in which the nameappeared in the appointment order. The argument oflearned counsel appearing for respondent No. 5 that theappellant was not appointed by the same appointmentorder therefore the appellant cannot claim seniority isnot tenable. The appellant was entitled to be appointedalong with other three candidates but because of theaction of the High Court in adopting moderation of marks the appellant was excluded from appointment. Theexclusion of appellant from appointment was on accountof an illegal act by the High Court which has been sofound by the judgment dated 13th September 2010. Sincethe select list has to be revised the appellant would bedeemed to be the part of the appointment along with othercandidates in the same select list. As the actual date ofappointment was on 24 th February 2011 the appellantcannot actually be treated to be appointed on 30 th Hig h C o urt of H.P on 15 11 HCHP 9March 2009 but is entitled to notional appointment fromthat date and consequential seniority.36. In Sanjay Dhar a three­Judge Bench of this Courtheld as under:“16. For the foregoing reasons the appeal is allowed. Thejudgment under appeal is set aside. It is directed that theappellant shall be deemed to have been appointed alongwith other appointees under the appointment order dated6­3­1995 and assigned a place of seniority consistentlywith his placement in the order of merit in the select listprepared by J&K PSC and later forwarded to the LawDepartment…” 37. In Lakshmana Rao Yadavalli this Court held asunder:“13. For the reasons recorded in Lakshmana Rao Yadavalliv. State of A.P. the present appeals are allowed and it isdirected that the High Court as well as the respondentState will do the needful for giving appointment to theappellant with retrospective effect i.e. from the date onwhich she ought to have been appointed however sheshall not be paid salary for the period during which shehas not worked as a District and Sessions Judge. We aresure that the respondents will do the needful for theappointment of the appellant at an early date.” 15This otherwise has been consistent view of this Courtin Balak Ram vs. State of H.P. 2015(1) SLC 504 PoonamKumari vs. State of H.P. & anr. 2015(4) HP LR 827 and Hig h C o urt of H.P on 15 11 HCHP 10Monica Sharma vs. Dr. Y. S. Parmar University ofHorticulture and Forestry Nauni & ors. 2015(5) ILR HP 491. 16Accordingly the claims of the petitioners in firstcategory are allowed and consequently these petitioners are heldentitled for grant of seniority from the date when respondentsNo. 7 and 8 Beli Ram and Yogita Chauhan were appointed i.e.15.12.2018.17Adverting to the second category we may notice thatit has come on record in the letter of Director Health Services tothe Additional Chief Secretarydated 28.8.18 that as perthe total cadre strength of 283 Radiographers only 91 are inposition.18As per advertisement 154 posts of Radiographerswere advertised whereas as per the result notifications dated15.12.2018 and 19.6.2020 the respondent­Commissiondeclared result against 115 posts against which only 87candidates were selected i.e. 2 candidates as per resultnotification dated 15.12.2018 and 85 vide result notificationdated 19.6.2020. In this manner as many as 67 posts are stillvacant. Hig h C o urt of H.P on 15 11 HCHP 1119There is no reason whatsoever given as to why therequisition of posts advertised was withdrawn vide letter dated16.12.2018 relevant portion whereof reads as under:“I have the honour to submit that the requisitions forfilling up the post of Radiographers were sent your goodoffices vide this Directorate requisition letter No.Swa­Ni(1)Kh(2)27 91 dated 20.08.2015 15.07.2016 03.10.2016may be treated aswithdrawn & recommends the names of eligiblecandidate as per requisition letter dated 01.05.2017 &31.08.20174 SCC 268 the Hon ble Supreme Court observedthat it is always open to the Government not to fill up all the Hig h C o urt of H.P on 15 11 HCHP 13vacancies for a valid reason but the selection cannot arbitrarilybe restricted to a few candidates notwithstanding the number ofvacancies and the availability of qualified candidates. 25The ratio laid down in this judgment was affirmed byConstitution Bench of the Hon ble Supreme Court inShankarsan Dash vs. Union of India 1991SCC 47 whereinit was held that if a number of vacancies are notified forappointment and adequate number of candidates are found fit still the successful candidates acquire an indefeasible right to beappointed. According to the Hon ble Supreme Court notificationmerely amounts to an invitation to qualified candidates to applyfor recruitment and on their selection they do not acquire anyright to the post. Unless the relevant recruitment rules soindicate the State is under no legal duty to fill up all or any ofthe vacancies. However the Hon ble Supreme Court also statedthat it does not mean that the State has the licence of acting inan arbitrary manner and the decision not to fill up the vacancieshas to be taken bona fide for appropriate reasons. It wasdeclared that if the vacancies or any of them are filled up theState is bound to respect the comparative merit of the Hig h C o urt of H.P on 15 11 HCHP 14candidates as reflected at the recruitment test and nodiscrimination can be permitted. 26In Mrs. Asha Kaul vs. State of Jammu andKashmir 1993 SCC573 the Hon ble Supreme Court againreiterated that mere inclusion in the select list does not conferupon the candidates included therein an indefeasible right toappointment. The Hon ble Supreme Court also stated that thereis obligation of the Government to act fairly and the wholeexercise cannot be reduced to a mere farce. It was furtherobserved that having sent a requisition request to the PublicService Commission to select a particular number of candidatesfor a particular category in pursuance of which the commissionissues a notification holds a written test conductsinterviews prepares a select list and then communicates tothe Government the Government cannot quietly and withoutgood and valid reasons nullify the whole exercise and tell thecandidates when they complain that they have no legal right toappointment.27In view of the aforesaid exposition of law it canlegitimately be concluded that even though the selectedcandidate has no vested right in the qualifying examination for Hig h C o urt of H.P on 15 11 HCHP 15getting appointed against the posts advertised notified yet theState cannot withdraw the seats arbitrarily without there beingany bona fide or appropriate reasons and the selection cannotarbitrarily be restricted to a few candidates notwithstanding thenumber of vacancies and the availability of qualified candidates.28Discussion in this regard would be incomplete in casewe do not take note of the recent judgment of the Hon bleSupreme Court in Dinesh Kumar Kashyap and ors. Vs. SouthEast Central Railway and ors.12 SCC 798. 29In this case the facts were ­ respondent No.1 SouthEast Central Railwayissued anadvertisement on 15.12.2010 inviting applications for filling up 5798 posts in the pay scale of Rs.5200­Rs. 20 200 + Grade Payof Rs.1800 in Raipur Bilaspur and Nagpur divisions andworkshops. The claim of the original writ petitioners who filedapplications before the Central Administrative Tribunalwas that as per the existing instructions the select list wasprepared with 20% extra candidates. Therefore the result of6995 candidates was declared who were successful. Theappellants fell in the category of extra 20%. The SECR did notmake the appointments from these 20% extra candidates though Hig h C o urt of H.P on 15 11 HCHP 16624 posts remained unfilled in the general category itself. Theappellants who fell in the 20% category of extra candidates filedapplications before the CAT praying that the SECR be directed tofill in the unfilled vacancies from this list of 20% candidates. Thisapplication was rejected by the Tribunal. Allowing the appeal theHon ble Supreme Court observed as under:­5. The main issue which arises before us is whether theSECR could have ignored the 20% extra panel despite theletter dated 02.07.2008 without giving any cogent reasonfor the same. No doubt it is true that mere selectiondoes not give any vested right to the selected candidate tobe appointed. At the same time when a large number ofposts are lying vacant and selection process has been followed then the employer must satisfy the court as towhy it did not resort to and appoint the selectedcandidates even if they are from the replacement panel. Just because discretion is vested in the authority itdoes not mean that this discretion can be exercisedarbitrarily. No doubt it is not incumbent upon theemployer to fill all the posts but it must give reasons andsatisfy the court that it had some grounds for notappointing the candidates who found place in thereplacement panel. In this behalf we may makereference to the judgment of this Court in R.S. Mittal vs.Union of IndiaSuppl.2 SCC 230 Hig h C o urt of H.P on 15 11 HCHP 1710. .....It is no doubt correct that a person on the select­panel has no vested right to be appointed to the post forwhich he has been selected. He has a right to beconsidered for appointment. But at the same time theappointing authority cannot ignore the select­panel ordecline to make the appointment on its whims. When aperson has been selected by the Selection Board and thereis a vacancy which can be offered to him keeping in viewhis merit position then ordinarily there is nojustification to ignore him for appointment. There has tobe a justifiable reason to decline to appoint a person whois on the select­panel. In the present case there has beena mere inaction on the part of the Government. No reasonwhatsoever not to talk of a justifiable reason was givenas to why the appointments were not offered to thecandidates expeditiously and in accordance with law. Theappointment should have been offered to Mr. Murgodwithin a reasonable time of availability of the vacancy andthereafter to the next candidate. The CentralGovernment s approach in this case was whollyunjustified.6. Our country is governed by the rule of law.Arbitrariness is an anathema to the rule of law. When anemployer invites applications for filling up a large numberof posts a large number of unemployed youth apply forthe same. They spend time in filling the form and paythe application fees. Thereafter they spend time toprepare for the examination. They spend time and moneyto travel to the place where written test is held. If they qualify the written test they have to again travel to Hig h C o urt of H.P on 15 11 HCHP 18appear for the interview and medical examination etc. Those who are successful and declared to be passed have a reasonable expectation that they will beappointed. No doubt as pointed out above this is not avested right. However the State must give somejustifiable non­arbitrary reason for not filling up thepost. When the employer is the State it is bound to actaccording to Article 14 of the Constitution. It cannotwithout any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question thejustification but the justification must be reasonable andshould not be an arbitrary capricious or whimsicalexercise of discretion vested in the State. It is in the lightof these principles that we need to examine thecontentions of the SECR.30Judged in light of the aforesaid exposition of law andas observed above it would be noticed that the respondent­Statehas failed to spell out any cogent and convincing reasons as towhy number of posts were reduced and why the candidates whoare otherwise eligible and whose names figure in the waiting list cannot be appointed. 31Accordingly the claims of the petitioners in secondcategory are allowed and consequently the State is directed tooffer appointment to these petitioners along with seniority from Hig h C o urt of H.P on 15 11 HCHP 19the date when respondents No. 7 and 8 Beli Ram and YogitaChauhan were appointed i.e. 15.12.2018.32Adverting to the third category comprising ofpetitioners in CWP No. 2104 2019 and petitioners No. 2 &3 inCWP No. 3867 19 we find that these petitioners did not possessthe requisite essential educational qualification as per theRecruitment and Promotion Rules and had not been registeredwith H.P. Para Medical Council Shimla on the last date ofsubmission of online recruitment application form. Thus theirclaims are not at all sustainable and have therefore rightly beenrejected.33Having said so all these petitions are disposed of inthe aforesaid terms so also the pending application(s) if any leaving the parties to bear their own costs. Judge 12.11.2020 Judge 

Summary: Applications for the post of Radiographers which were previously rejected by the H.P. Staff Selection Committee, were directed to be accepted by the High Court of Madhya Pradesh. The bench consisting of J. Tarlok Singh Chauhan and J. Jyotsna Rewal Dua in the matter of Robin Singh Mehta and Ors. v.State of H.P. and Ors. [CWP No. 3371/2019], shed light upon the matters of notional seniority and State arbitrariness. The H.P. Staff Selection Commissioner, Hamirpur issued an advertisement in 2017 for filling up 154 posts of Radiographers, wherein the eligibility prescribed was as per the Recruitment and Promotion Rules. Direct evaluation process was conducted and the results were declared wherein all the candidates of the petitioners were rejected by the Commission. All the petitioners challenged the rejection order before the H.P Administrative Tribunal by filing various applications. The Tribunal passed an interim order holding the petitioners to be eligible for the post and directing their results to be prepared by the Commission. All the petitioners were disposed of vide a common order directing the State Government to constitute a committee of experts to examine qualifications of the petitioner and proceed with the report as assessed by the experts. The committee of experts on being constituted reported that the petitioners were qualified for recruitment. However, since the State failed to further act on these findings, the petitioners approached the High Court with the present petitions. The claims raised by the petitioners were broadly of three categories. The first category included petitioners who had been appointed and their only claim was in regards to seniority; the second category was where the petitioners had not been selected owing to limited seats but had been placed in the waiting list due to the overall merit; and the final category consisted of petitioners who did not fulfilment the eligibility criteria. Allowing the claims of the petitioners in the first category, the HC, relying on the Supreme Court judgement in C. Jayachandran v. State of Kerala and ors. [(2005) 5 SCC 230], held that “if a candidate has been wrongly excluded from the process of the appointment on account of illegal and arbitrary action on behalf of the State, then he is entitled to notional seniority from the date, the similarly situated persons have been appointed”. In regards to the second category, the HC noticed that in the letter of Director Health Services to the Additional Chief Secretary (Health) dated 28.08.2018, and as per the advertisement that 67 posts were still vacant. Relying on Miss Neelima Shangla v. State of Haryana and ors. [(1986) 4 SCC 268], the court held that “it is always open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates”. The court observed that in the present matter the respondent-State had failed to provide with a cogent and convincing reasons as to why the posts were reduced, and hence, the claims in the second category were allowed as well. The third category was rejected based on the finding that “these petitioners did not possess the requisite essential educational qualification as per the Recruitment and Promotion Rules…”