HP HC | [Service Law] If a candidate has been wrongly excluded from the process of appointment on account of arbitrary State Action, then he is entitled to notional seniority from the date, the similarly situated persons have been appointed

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua, JJ., while allowing the present petition in part, discussed the right of selected candidates against State advertised vacancies relying on similar precedents.

Background

The Himachal Pradesh Staff Selection Commissioner, Hamirpur (hereinafter referred as “the Commission”), in September 2017, issued an advertisement for filling up 154 posts of Radiographers, wherein essential educational qualification prescribed was as per the Recruitment and Promotion Rules, that is, (a)(i) 10+2 pass in science from a recognized Board of School Education/University (ii) Diploma in Radiology from an institution recognized by the Central/HP Government or B.Sc. Degree in Radiology from a recognized University b) must be registered with Himachal Pradesh Para Medical Council, Shimla. In July 2018, the Commission conducted direct evaluation process for these advertised posts of Radiographers and thereafter, on 15-12-2018, the Commission declared the result, wherein two candidates Beli Ram and Yogita Chauhan, respondents 7 and 8 in CWP No. 3371 of 2019 were selected, whereas candidatures of the petitioners were rejected by the Commission, which compelled the petitioners and similarly situated persons to challenge the rejection order before the erstwhile Himachal Pradesh Administrative Tribunal by filing various Original Applications (OAs). These OAs were listed in December 2018 and the Tribunal passed interim direction holding the petitioners eligible for the post in question and directed their results to be prepared by the Commission.

All these petitions were eventually disposed by a common order dated 22-05-2019 by directing the State Government to constitute a committee of experts to examine equivalence of the academic/technical qualifications possessed by the petitioners and recognition thereof and the Commission was directed to proceed with the matter in light of the report of the committee of experts. The State, in turn, by notification dated 16-08-2019, constituted an expert committee as directed. The expert committee conveyed its report dated 25-09-2019 holding the degrees possessed by the petitioners to be valid for the purpose of recruitment/appointment. However, since the State failed to act even on the basis of the expert committee, the petitioners were constrained to approach this Court by filing instant petitions.

Claims raised

The claims raised in the instant petition can be classified into three main categories;

  1. Claim regarding seniority.
  2. Claims considered and placed in the waiting list.
  3. Claims of petitioners who did not fulfil the eligibility criteria or their names had not been registered with Himachal Pradesh Para Medical Council, Shimla.

 Observation

With respect to claims regarding seniority the Court referred the case of, C. Jayachandran v. State of Kerala, (2020) 5 SCC 230, and said, It is more than settled that if a candidate has been wrongly excluded from the process of 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. Accordingly, the claims of the petitioners in first category are allowed and these petitioners are held entitled for grant of seniority from the date when respondents No. 7 and 8 Beli Ram and Yogita Chauhan were appointed i.e. 15-12-2018.”

Allowing the second category of claims as well, Court considered the case of Neelima Shangla v. State of Haryana, (1986) 4 SCC 268, wherein the Supreme Court observed 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 ratio laid down in the said judgment was further substantiated as well as elaborated by Shankarsan Dash v. Union of India, (1991) 3 SCC 47, wherein it was held that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, still the successful candidates acquire an indefeasible right to be appointed. According to the Supreme Court, notification merely amounts to an invitation to qualified candidates to apply or 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, the Court also stated that it does not mean that the State has the license of acting in an arbitrary manner and the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. It was declared that 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. Reliance was also placed on Asha Kaul v. State of Jammu and Kashmir, (1993) SCC 2 573, where the Supreme Court again said that “mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment. It was further stated, that there is obligation of the Government to act fairly and the whole exercise cannot be reduced to a mere farce”. Court also made a special mention of the recent judgment in Dinesh Kumar Kashyap v. South East Central Railway, (2019) 12 SCC 798.

Finding no merits, the Court rejected the third category of claims.

 Decision

Allowing the present petition in part, Court made a systematic evaluation of the three categories of claims and further issued necessary directions.[Robin Singh v. State of Himachal Pradesh, 2020 SCC OnLine HP 2998, decided on 12-11-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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