Ankush Banyal vs State of H.P. and Others

A.M. Khanwilkar, C.J.—Heard counsel for the parties. Admit. Respondents waive notice, through respective counsel, for final disposal. As short question is involved, the appeal is taken up for final disposal forthwith, by consent.

This appeal takes exception to the judgment of the learned Single Judge dated 3rd December, 2012 in CWP No. 1672 of 2012-H allowing the writ petition, filed by respondent No. 3 herein and as a result of which the appointment of the appellant on the post of Lecturer Mechanical Engineering, Class-I Gazetted, was quashed and set aside.

For the nature of order that we propose to pass, it may not be necessary for us to advert to the factual matrix of the case in extenso. Suffice it to observe that the writ petition, filed by respondent No. 3, the address of appellant was shown as Roll Number through Secretary, Himachal Pradesh Public Service Commission. No doubt, the appellant was served with the notice through Secretary, Himachal Pradesh Public Service Commission, Shimla but admittedly did not appear before the matter was finally disposed of. It is not clear whether the notice, served on the appellant indicated that the matter would be finally disposed of at notice stage itself. Further, the judgment under appeal makes reference to several points raised by respondent No. 2 Public Service Commission in the reply affidavit filed to oppose the writ petition. The first issue was that respondent No. 3 without challenging the selection process and for that matter the Rules on the basis of which selection process was taken to its logical end, sought relief and it was granted by the learned Single Judge even without specific relief of setting aside the appointment of the appellant herein - respondent No. 2 in the writ petition was sought by the writ petitioner. Even the second point, raised by the Public Service Commission in the reply affidavit, does not find reference in the impugned decision, which is founded on settled legal position that a candidate who participated in the selection process cannot be heard to complain about the validity of such selection process. This plea was taken on the basis of the decision of Apex Court reported in Madan Lal and Others Vs. State of Jammu and Kashmir and Others, Manish Kumar Shahi Vs. State of Bihar and Others, and Dalpat Abasaheb Solunke and Others Vs. Dr. B.S. Mahajan and Others, None of these judgments are referred to in the impugned decision. Indisputably, the Rule, on the basis of which, selection process was concluded, has not been challenged.

Prima-facie, the Rule provides for eligibility clause. It permits the appointment of candidate who has secured 1st Class Masters Degree or in the alternative who has secured 1st Class Bachelors Degree with valid GATE score of minimum 75 percentile and to later on complete M.Tech/M.E. within five years from the date of appointment. In other words, the argument of the appellant as well as Public Service Commission is that the requirement of 1st Class Masters Degree was not a mandatory requirement. These aspect has not been considered by the learned Single Judge at all.

In the circumstances, in our considered opinion, only appropriate course is to quash and set aside the impugned decision and restore the writ petition to the file to its original number for reconsidering it afresh on its own merits and in accordance with law. As a result of this decision, needless to observe that the order of appointment, in favour of the appellant, ought to be and is ordered to be revived and will be subject to the outcome of the writ petition.

We place on record the additional submission, made by the appellant that the Public Service Commission, acting upon the Rule, in question, which was applied in the case of the appellant, even for the subsequent academic year has selected and appointed candidate, who has secured only Bachelor of Technology in Engineering with GATE Score of minimum 75 percentile. Even this aspect can be considered by the learned Single Judge while deciding the writ petition afresh. In other words, all contentions, available to the respective parties, are left open to be decided by the learned Single Judge on its own merits and in accordance with law. We are not expressing any opinion either way on those matters. Appeal succeeds on the above terms with no order as to costs.