Sushil Kumar and Others vs State of Himachal Pradesh and Others

Rajiv Sharma, J.—Since common questions of law and facts are involved in both the petitions, the same were taken up together for hearing and are being disposed of by a common judgment. However, for clarity sake, facts of CWP No. 8375-2012-H have been taken into consideration.

Petitioner in CWP No. 8375/2012-H retired from Indian Army on 20.4.2011 as Hawaldar. He got himself registered with the Employment Exchange on 7.6.2011 under the category of ex-servicemen. Petitioner in CWP No. 8376/2012-H retired from Indian Army on 31.3.2011 as Subedar Major. He got himself registered with the Employment Exchange in the month of April, 2011 under the category of ex-servicemen.

Respondent No. 2 issued an advertisement for filling up nine posts of Panchayat Sahayaks. Out of these nine posts of Panchayat Sahayaks, three posts were reserved for ex-servicemen category for Nurpur Panchayat Samiti. The copy of communication dated 10.8.2011 (Annexure P-1) was also communicated to respondent No. 3, i.e. Sub Regional Employment Officer, Ex-servicemen Cell, Hamirpur. In sequel to Annexure P-1, petitioner was directed to appear for the interview on 30.8.2012 at 10.00 A.M. alongwith requisite documents before the State Level Selection Committee. Petitioner made himself available for the interview on 30.8.2012. Respondent No. 3 sent a communication to respondent No. 2 on 7.9.2012 requesting him to issue appointment letter to the petitioner for the post of Panchayat Sahayak to be appointed on contract basis. There is a reference to the communication dated 31.3.1990 in the communication dated 7.9.2012. Thereafter, petitioner submitted his joining also on 17.9.2012. However, the fact of the matter is that petitioner has not been offered appointment letter to the post of Panchayat Sahayak by respondent No. 2. Similar process was also undertaken by the petitioner in CWP No. 8376/2012.

Case of the petitioners, in a nutshell, is that as per letters dated 6.11.1985, 17.8.1987 (Annexure R-1 page 36) and 31.3.1990 issued by the State of Himachal Pradesh, the suitability of ex-servicemen is to be adjudged by the Ex-servicemen Cell and thereafter it is incumbent upon the Departments to offer appointment letter to the candidates.

Respondent Nos. 1 and 3 have filed joint reply. According to their reply, the interviews for the post were conducted on 30.8.2012 and the panel was drawn after the interview. Names of the petitioners were nominated for the post on 7.9.2012. There is also a reference to the communication dated 17.8.1987 (Annexure R-1). It is admitted in the reply that petitioners were nominated for the post of Panchayat Sahayak. Names of the petitioners were to be accepted by the employer for appointment.

Respondent No. 2 has also filed detailed reply. There is a reference to the Himachal Pradesh Panchayati Raj (Appointment and Condition of Service of Panchayat Sahayaks) Rules, 2008. Sum and substance of the reply is that selection to the post of Panchayat Sahayak was to be regulated under the Rules. A strange stand has also been taken by respondent No. 2 to the effect that Directorate of Sainik Welfare, Ex-servicemen Cell, Himachal Pradesh, Hamirpur was never informed about the three posts to be filled up from the category of ex-servicemen.

Respondent Nos. 4 to 6 have also filed detailed reply. According to them, the posts-in-question were to be filled up as per the Rules as also amended on 30.3.2011. According to respondent Nos. 4 to 6, petitioners were not eligible and qualified for the post of Panchayat Sahayak. According to them, they are also ex-servicemen and have submitted their applications strictly as per notification Annexure P-1 before the cut-off date. They were interviewed on 25.4.2012. They have been offered appointment letters pursuant to which they have joined their duties on 26.9.2012, 20.9.2012 and 25.9.2012, respectively.

Petitioners have filed rejoinder to the reply filed by respondent No. 2 as well as to the reply filed by respondent Nos. 4 to 6. According to the averments contained in the rejoinder, petitioners were fully eligible and qualified as per the Recruitment and Promotion Rules. Respondents No. 4 to 6 have filed CMP No. 17511/2013 where there is a reference to letter No. 2819 dated 9.5.2012 in Annexure R-4/5. The Joint Director, Panchayati Raj Department, Himachal Pradesh on 1.6.2012 has informed respondent No. 2 that appointment amongst the category of ex-servicemen candidates was to be made as per the Himachal Pradesh Panchayati Raj (Appointment and Condition of Service of Panchayat Sahayak) Rules, 2008. It is averred in the application that for filling up the posts of Panchayat Sahayak in Panchayat Samitis, Indora and Nurpur, selections have been made pursuant to interview held by respondent No. 2. Respondent Nos. 1 to 3 have filed reply to the CMP No. 17511/2013. There is a reference the manner in which posts of Panchayat Sahayaks in Kangra Panchayat Samiti have been filled up on the basis of the recommendations made by the Ex-servicemen Cell. Petitioners have filed detailed reply to CMP No. 17511/2013. They have placed on record copy of communications whereby the posts of Panchayat Sahayaks were filled up for Panchayat Samitis, Bhawarna, Nalagarh and Jhandutta through the agency of Ex-servicemen Cell.

Mr. Ramakant Sharma has vehemently argued that action of respondent No. 2 of not offering appointment letters to the petitioners pursuant to letter dated 7.9.2012 is illegal and arbitrary, thus, violative of Articles 14 and 16 of the Constitution of India. According to him, petitioners were fully eligible and qualified to be appointed for the post of Panchayat Sahayak. He then contended that the suitability of the petitioners has been adjudged by the State Level Selection Committee. He has made reference to the instructions issued by the State Government the manner in which the posts of ex-servicemen are to be filled up. He lastly contended that except Panchayat Samitis, Indora and Nurpur, appointment of Panchayat Sahayaks have been made to the category of ex-servicemen on the basis of recommendations made by respondent No. 3.

Mr. Parmod Thakur, learned Additional Advocate General submits, on behalf of respondents No. 1 and 3, that the recommendations have been made by respondent No. 3 on 7.9.2012 after adjudging the suitability of the petitioners by a duly constituted State Level Selection Committee.

Mr. R.K. Sharma, learned Senior Advocate, appearing on behalf of respondent No. 2, has argued that requisition though was sent to respondent No. 3 and the reminder was also sent to respondent No. 3 on 3.5.2012, but despite that names were not recommended/nominated. According to him, petitioners have received communication only on 7.9.2012 and 18.9.2012 and by that time, appointment letters were also issued to respondents No. 4 to 6.

Ms. Ranjana Parmar and Mr. Naresh Kaul, learned counsel appearing on behalf of respondents No. 4 to 6, have argued that the appointment of respondents No. 4 to 6 is strictly as per the Recruitment and Promotion Rules notified and amended from time to time. They have also contended that the suitability of their clients has been adjudged by a duly constituted selection committee and there is no illegality in their appointments. They have also argued that the petitioners were not eligible and qualified for the post in question. They have lastly contended that the instructions to which respondent No. 3 has referred to are in conflict with the Recruitment and Promotion Rules.

I have heard the learned counsel for the parties and have perused the pleadings carefully.

Petitioners are ex-servicemen. They are fully eligible and qualified as per the material placed on record. Respondent No. 2 has issued notification Annexure P-1 dated 10.8.2011. The same was endorsed to respondent No. 3. Respondent No. 3 had called the petitioners for interview on 30.8.2012. Their suitability was adjudged by the State Level Selection Committee for the post of Panchayat Sahayak to be appointed on contract basis. The Executive Officer of the Nagar Panchayat was informed on 7.9.2012. However, fact of the matter is that despite recommendations made by respondent No. 3, respondent No. 2 has offered appointment letters to respondents No. 4 to 6.

State Government has laid down the procedure for notification of vacancies reserved for ex-servicemen or a dependent, or for physically handicapped as per letter dated 8.3.1973 contained in Handbook on Personnel Matters, Vol.-1 (Second Edition) para 7.13, which reads as under:

"7.13.1 Ex-servicemen and dependents: The Ex-servicemen (and eligible dependents) should get their names registered at the nearest Employment exchange. The Employment Exchange will dispatch duplicate registration cards to the Ex-servicemen cell established in the Directorate of Employment and Training, Himachal Pradesh, Shimla (now Directorate of Sainik Welfare, Hamirpur). There is a State Selection Committee which interviews the Ex-servicemen (including eligible dependents of Ex-servicemen killed or disabled for civil service in action) for various post and prepares a panel of eligible candidates. The Departments should send requisition in respect of reserved vacancies for Ex-servicemen to the Cell which will sponsor the names of Ex-servicemen for the reserved post. The names sponsored by the Cell are considered to have been selected for the reserved posts. The Departments have to issue appointment letters to the Ex-servicemen candidates sponsored by the Cell without any interview/test.

Similarly, para 18.4.1 contained in Handbook on Personnel Matters, Vol.-1 (Second Edition) lays down the procedure to be followed by ex-servicemen or their dependents for applying against reserved posts, which reads as under:

"(a) Ex-servicemen and their dependents should get their names registered at the nearest Employment Exchange. The exchange has to make an entry in the index card regarding the fact that the applicant is an Ex-serviceman or dependent of an Ex-serviceman as the case may be. The exchange will send duplicate registration card to the Ex-servicemen''s Cell in the Directorate of Employment, Govt. of H.P. After an interview by a State Selection Committee, panels of eligible candidates for different categories of posts/services are prepared. Govt. Departments/Corporations etc. who have to fill a reserved vacancy send a requisition to the Ex-servicemen''s Cell simultaneously while sending requisitions to the Employment Exchanges, Public Service Commission in respect of vacancies not reserved for Ex-servicemen. The Ex-servicemen Cell sponsors names from the panel maintained by it in accordance with the requisition. The candidate so sponsored is to be appointed by the Department/Corporation without any further interview/test and such appointment is to be made within 15 days of the date of sponsorship by the Ex-servicemen''s Cell.

(b) Vacancies filled through State Public Service Commission on All India basis are advertised through the Press too and the eligible Ex-servicemen or their dependents, as the case may be, should obtain prescribed application forms from the Public Service Commission and then submit the form duly completed to the Commission."

It would be pertinent to take note of letter dated 17.8.1987 (Annexure R-1) governing the recruitment of Ex-servicemen by the Employers against Class-III and IV vacancies. Text of letter dated 17.8.1987 reads as under:

"I am directed to refer to Labour Commissioner-cum-Director of Employment, H.P. letter No. DET, EMP (XS-CELL) 881/61-IV, dated the 14th July, 1987, addressed to you and copy among others endorsed to this department on the above cited subject and to state that the existing procedure as laid down by the Government for the selection of Ex-servicemen for employment in civil services/posts under the State Government is in order and there is no ambiguity in it. All Class-III posts/services where the recruitment is to be made against reserved vacancies for Ex-servicemen are exempted from the purview of the Commission. Accordingly the ex-servicemen once interviewed by the State Level Selection Committee constituted by the Government for the purpose in the Labour and Employment Department are not required to be subjected to future interview/test by the Department to which they are nominated by the Special Ex-servicemen Cell functioning in the aforesaid department. The State Level Selection Committee after examining/ensuring the suitability of the Ex-servicemen for appointment to Class-III and IV posts on the basis of their record of Military service drawn up a panel of those suitable candidates. The panel so drawn is maintained by the special Ex-servicemen Cell which nominate one candidate for one reserved post from this panel to the departments as per their requisition and the department concerned has to accept the candidate for appointment and issue appointment letter to the candidate accordingly. This procedure is also covered under the provisions of Rule 4 (1) of the Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal Non-Technical and Technical Services) Rules, 1972 and 1985. Accordingly there is no scope for any ambiguity or doubt about the implementation of Government instructions."

It is clear from the text of letter dated 17.8.1987 that ex-servicemen once interviewed by the State Level Selection Committee constituted by the Government for the purpose in the Labour and Employment Department are not required to be subjected to future interview/test by the Department to which they are nominated by the Special Ex-servicemen Cell functioning in the aforesaid department. Petitioners'' names were nominated by the State Level Selection Committee after examining/adjudging the suitability of the petitioners. This procedure is also covered under the provisions of Rule 4(1) of the Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal Non-Technical and Technical Services) Rules, 1972 and 1985.

Thereafter, notification dated 31.3.1990, as noticed hereinabove, has been issued to facilitate the recruitment of ex-servicemen. According to the instructions dated 31.3.1990, issued by Commissioner-cum-Secretary (GAD), Himachal Pradesh, appointment letters are to be issued within 15 days to the persons selected by the Ex-servicemen Cell for the posts reserved for ex-servicemen. There is a reference to earlier letter dated 6.11.1985. Text of letter dated 31.3.1990 reads as under:

"I have been directed to say on the aforesaid subject that in accordance with the clearly given in letter No. GAD-E (C) 17-1/84 dated 6.11.1985, of the General Administration Department of the Government, the appointment letters be issued within 15 days to the persons selected by the Ex-servicemen Cell for the posts reserved for the ex-servicemen. It has been brought to the notice of the Government that these orders are not being followed in some departments. Some Departments do not issue the appointment letters to the ex-servicemen till the time selection is made for the unreserved and other categories. This is totally wrong. All departments are requested to strictly follow the above orders. It is pertinent to clarify here that in the case of posts to be filled by direct recruitment, according to the orders of the Government, if necessary, after the approval of the Finance Department, as soon as the notification is sent to Public Service Commission or Employment Exchanges at that time itself, Ex-servicemen Cell, Hamirpur may be requested to sent the names of the selected candidates for the posts reserved for ex-servicemen. And as soon as the names are sent by the ex-servicemen, the selected candidates be issued appointment letter within 15 days.

All offices be made aware of the aforesaid orders and they be strictly followed."

Petitioners have got their names registered with the Employment Exchange under ex-servicemen category. Respondent No. 2 has sent a requisition on 10.8.2011. Names of petitioners were nominated by respondent No. 3 after adjudging their suitability for the post. The procedure prescribed under rule 6 of the Himachal Pradesh Panchayati Raj (Appointment and Condition of Service of Panchayat Sahayaks) Rules, 2008 is to be followed for general category and not for ex-servicemen category. The procedure for filling up the posts of ex-servicemen is to send a requisition to the Ex-servicemen Cell. The suitability of the candidate is to be adjudged by the State Level Section Committee. Thereafter, their names are to be recommended/nominated and these persons alone are to be appointed against the category of ex-servicemen. In fact, respondent No. 2 has sent requisition to respondent No. 3. Surprisingly, respondent No. 2 in his reply has stated that no requisition was sent to respondent No. 3. The Court deprecates the contradictory stand taken by respondent No. 2. Respondent No. 3 has nominated the names of petitioners. Mr. R.K. Sharma has also pointed out that reminder was also sent to respondent No. 3 on 3.5.2012 to make recommendations. The recommendations have been made on 7.9.2012. Respondent No. 2 instead of issuing appointment letters to the petitioners for the post of Panchayat Sahayak issued appointment letters in favour of respondents No. 4 to 6 on 15.9.2012 on the basis of interview held on 25.4.2012.

The matter is required to be considered from another angle. Respondent No. 2 has also sent a reminder to respondent No. 3 on 3.5.2012 and has also issued call letters to the ex-servicemen for filling up the posts of Panchayat Sahayak from the category of ex-servicemen directly. Pursuant to which they were interviewed on 25.4.2012. Once the requisition had been sent to respondent No. 3 by respondent No. 2, there was no occasion for him to hold the interviews of respondents No. 4 to 6 to the post of Panchayat Sahayak on 25.4.2012 on the basis of letter dated 9.4.2012. Respondent No. 2 initiated the selection process in contravention of the instructions issued by the State Government for filling up the posts from ex-servicemen category. Names of the petitioners have been recommended on 7.9.2012 and they cannot be penalized if the letter has been received by respondent No. 2 on 18.9.2012. It is difficult to believe that letter issued on 7.9.2012 would reach Nurpur on 18.9.2012. He should have waited for the recommendation/nomination of respondent No. 3. The selection process was completed on 15.9.2012 and the appointment letters were also issued on 15.9.2012. Petitioners were not required to appear before the Selection Committee constituted once the process for filling up the posts had been initiated by sending requisition by respondent No. 2 to respondent No. 3. Letter dated 10.8.2011 cannot be termed to be informatory in nature. It was strictly as per law whereby requisition was sent to respondent No. 3 by respondent No. 2. Petitioners were not required to submit applications directly to respondent No. 2.

Petitioners have placed on record ample material to establish that only Panchayat Samitis, Indora and Nurpur have made the appointments to the posts of Panchayat Sahayak directly by inviting the applications without waiting for the nominations to be made by respondent No. 3. Panchayat Samitis, Bhawarna, Nalagarh and Jhandutta have filled up the posts from ex-servicemen through respondent No. 3 agency. There is no conflict in the rules called "The Himachal Pradesh Panchayati Raj (Appointment and Condition of Service of Panchayat Sahayaks) Rules, 2008" and the instructions issued by the State Government from time to time to fill up the posts of ex-servicemen through respondent No. 3 agency. It is settled law that the instructions can always supplement and not supplant. It can be gathered from the plain language of sub-rule 2 of rule 3 of the Himachal Pradesh Panchayati Raj (Appointment and Conditions of Service of Panchayat Sahayaks) Rules, 2008 that the reservation roster, as is applicable in the case of direct recruitment of the employees of the State Government, is applied at the Panchayat Samiti level also for providing reservation to various categories of persons in the cadre of Panchayat Sahayaks. The clarification issued by the Joint Director, Panchayati Raj dated 1.6.2012 is contrary to the instructions issued by the State Government from time to time the manner in which posts reserved for ex-servicemen are to be filled up, thus, will not advance the case of respondent Nos. 4 to 6.

Respondent No. 2 has filed reply contrary to the record. A requisition was specifically sent, as noticed hereinabove, to respondent No. 3 but despite that respondent No. 2 has chosen to state in reply-affidavit of Sushil Kumar Choudhary dated 26.2.2013 that requisition was never sent to respondent No. 3. Reminder was also sent to respondent No. 3 on 3.5.2012. Respondent No. 2 has filed false reply-affidavit contrary to the record. Exemplary cost is required to be imposed on respondent No. 2 for filing false reply-affidavit.

Their Lordships of the Hon''ble Supreme Court in A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam Represented by Its President etc., has held that the court should in addition to full restitution impose appropriate costs when it discovers falsehood, concealment, distortion, obstruction or confusion in pleadings. Their Lordships have held as under:

"43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice."

Though the appointments of respondent Nos. 4 to 6 were initially for a period of one year but it is stated at the Bar that their contracts have been renewed.

Accordingly, in view of the analysis and discussion made hereinabove, both the petitions are allowed. Appointments of respondent Nos. 4 to 6 made vide letters dated 15.9.2012 are quashed and set aside forthwith. Respondent No. 2 is directed to issue appointment letters to the petitioners on the basis of Annexure P-3 dated 7.9.2012 forthwith. The remaining one post shall be filled up in accordance with the observations made hereinabove by respondent No. 3 agency. Exemplary costs of Rs. 50,000/- is imposed on respondent No. 2 for filing false and misleading reply-affidavit. This amount shall be recovered from the salary of respondent No. 2 in easy installments. Pending application(s), if any, also stands disposed of. No costs.