Varun Dhiman vs State Of H.P. & Ors

 Tarlok Singh Chauhan, J

1.. The instant petition has been filed for grant of the following substantive relief:

“that the writ in the nature of mandamus may kindly be issued, thereby directing the respondent No.2 to requisition the name of the

petitioner being Sr. No. 6 in the merit wise waiting panel prepared for the post of Lab Assistant (Allopathy) against OBC (UR) category

(Annexure P/4) and respondent No.3 also be directed to sponsor his name for the said post as the post is lying vacant after nonÂjoining of

the Serial No.5 candidate of waiting panel against the said post, with further direction to respondent No.2 to appoint the petitioner against

the post of Lab Assistant (Allopathy) on contract basis, OBC (UR) Post Code 654.â€​

On 4.9.2017, respondent No.2, i.e. Director, Health & Family Welfare sent a requisition to respondent No.3, Himachal Pradesh Staff Selection

Commission,Hamirpur, for filling up of vacant posts of Laboratory Assistant. Pursuant to such requisition, respondent No.3 recommended 102

candidates, who eventually were offered appointment on 21.6.2019. However, out of these 102 candidates, 22 candidates did not join and

consequently, their appointment orders were ordered to be withdrawn by the Department vide letter dated 20.9.2019. On 20.9.2019 itself, respondent

No.3 was requested to recommend names of 22 candidates from waiting panel. Respondent No.3, in turn, vide its communication dated 26.10.2019

recommended names of 22 candidates, who were offered appointment vide letter dated 23.11.2019.

However, out of these 22 candidates, three candidates again did not join their duties and respondent No.3 on 14.7.2020 was again requested to

sponsor names of eligible candidates from the waiting panel. This time, the request of respondent No.2 was turned down by respondent No.3 by

invoking Rules of Business & Procedure of the Commission, which clearly provide for life of the waiting panel to be valid upto one year from the date

of recommendations in case of nonÂ​joining of earlier recommended candidates.

Since reply(ies) of the respondents was conspicuously silent as to what transpired from 23.11.2019, when 22 candidates had been offered

appointment and out of which 3 candidates had not joined, uptill 5.8.2020, when respondent No.3 informed respondent No.2 that no further

appointment could be made in view of life of waiting panel, we directed the respondents to produce before us records of the case.

5 We were shocked to note that the officials of respondent No.2 did not even bother to deal with files during this period even though 3 candidates out

of 22 candidates as aforesaid had not joined. Meaning thereby, that on account of sheer negligence of the officials/officers of respondent No.2,

appointment has been denied to 3 persons from waiting list.

6 It was more than four decades back that the Hon’ble Supreme Court had observed that “it must, therefore, be taken to be the law that where

the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other

forms of largesses, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action

must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of

grant of largesses including award of jobs, contracts quotas, licences etc., must be confined and structured by rational, relevant and nonÂ‐

discriminatory standard or norm and if the government departs from such standard or norm in any particular case or cases, the action of the

Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on

some valid principle which in itself was not irrational,. unreasonable. or. discriminatory. (Refer:. Erusian Equipment and Chemicals Ltd. vs. State of

West Bengal, AIR 1975 SC 26).

The instant case depicts sordid, despotic and nepotic functioning of respondent No.2 where despite there being 3 vacancies, it took no steps to fill up

the same from the waiting list.

No doubt, a candidate in the waiting list has no indefeasible right to be appointed because notification merely amounts to an invitation to qualified

candidates to apply for recruitment and on their selection they do not acquire any right to the post. It is also settled that unless the relevant recruitment

rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, that does not mean that the State has the licence of

acting in an arbitrary manner and there has to be a conscious decision not to fill up the vacancies, which has to be taken bona fide for appropriate

reasons.

9 In Miss Neelima Shangla v. State of Haryana and Others, (1986) 4 SCC 268, the Hon'ble 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.

10 The ratio laid down in this judgment was affirmed by Constitution Bench of the Hon'ble Supreme Court in Shankarsan Dash vs. 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 Hon'ble Supreme Court, notification merely amounts to an

invitation to qualified candidates to apply for 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 Hon'ble Supreme Court also stated

that it does not mean that the State has the licence 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.

In Mrs. Asha Kaul vs. State of Jammu and Kashmir, 1993 SCC (2) 573, the Hon'ble Supreme Court again reiterated that mere inclusion in the

select list does not confer upon the candidates included therein an indefeasible right to appointment. The Hon'ble Supreme Court also stated that there

is obligation of the Government to act fairly and the whole exercise cannot be reduced to a mere farce. It was further observed that having sent a

requisition/request to the Public Service Commission to select a particular number of candidates for a particular category in pursuance of which the

commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government, the

Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no

legal right to appointment.

In view of the aforesaid exposition of law, it can legitimately be concluded that even though the selected candidate has no vested right in the

qualifying examination for getting appointed against the posts advertised/notified, yet the State cannot withdraw the seats arbitrarily without there

being any bona fide or appropriate reasons and the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of

vacancies and the availability of qualified candidates.

Discussion in this regard would be incomplete in case we do not take note of the recent judgment of the Hon'ble Supreme Court in Dinesh Kumar

Kashyap and ors. Vs. South East Central Railway and ors. (2019) 12 SCC 798.

In this case the facts were  respondent No.1, South East Central Railway (for short the SECR) issued an advertisement on 15.12.2010 inviting

applications for filling up 5798 posts in the pay scale of Rs.5200ÂRs. 20,200 + Grade Pay of Rs.1800/ in Raipur, Bilaspur and Nagpur divisions and

workshops. The claim of the original writ petitioners who filed applications before the Central Administrative Tribunal (for short CAT) was that as per

the existing instructions the select list was prepared with 20% extra candidates. Therefore, the result of 6995 candidates was declared who were

successful. The appellants fell in the category of extra 20%. The SECR did not make the appointments from these 20% extra candidates though 624.

posts remained unfilled in the general category itself. The appellants who fell in the 20% category of extra candidates filed applications before the

CAT praying that the SECR be directed to fill in the unfilled vacancies from this list of 20% candidates. This application was rejected by the Tribunal.

Allowing the appeal, the Hon'ble Supreme Court observed as under:Â​

5.. The main issue which arises before us is whether the SECR could have ignored the 20% extra panel despite the letter dated 02.07.2008

without giving any cogent reason for the same. No doubt, it is true, that mere selection does not give any vested right to the selected

candidate to be appointed. At the same time when a large number of posts are lying vacant and selection process has been followed then the

employer must satisfy the court as to why it did not resort to and appoint the selected candidates, even if they are from the replacement

panel. Just because discretion is vested in the authority, it does not mean that this discretion can be exercised arbitrarily. No doubt, it is not

incumbent upon the employer to fill all the posts but it must give reasons and satisfy the court that it had some grounds for not appointing

the candidates who found place in the replacement panel. In this behalf we may make reference to the judgment of this Court in R.S. Mittal

vs. Union of India (UOI)1, wherein it was held as follows: 1 (1995) Suppl.2 SCC 230

10.. .....It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been

selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the selectÂpanel or

decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be

offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a

justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part

of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the

candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgod within a reasonable time of

availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified.

6.. Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law. When an employer invites applications for

filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the

application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written

test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination etc. Those who are

successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not

a vested right. However, the State must give some justifiable, nonÂ​arbitrary reason for not filling up the post. When the employer is the State

it is bound to act according to Article 14 of the Constitution. It cannot without 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 the justification but the justification must be

reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these

principles that we need to examine the contentions of the SECR.

Judged in light of the aforesaid exposition of law, the respondentÂState has failed to spell out any cogent and convincing reasons as to why no

steps were taken to fill up 3 posts from the waiting list.

The officials of respondent No.2 being the government officials are not free to act like an ordinary individual, in dealing with the public

appointment, as they cannot act arbitrarily at their own sweet will, rather their action must be in conformity with some standard or norm which are not

arbitrary, irrational or irrelevant.

The action of the respondents must not be arbitrary or capricious, but must be based on some principle which meets the test of reason and

relevance. After all, it is the principle of reasonableness and nonÂarbitrariness in governmental action that lies on the core of entire constitutional

scheme and structure.

The concept of reasonableness and nonÂarbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the

whole fabric of the Constitution. Thus, Article 14 read with Article 16(1) of the Constitution accords right to an equality or an equal treatment

consistent with principles of natural justice. Therefore, any law made or action taken by the employer, corporate statutory or instrumentality under

Article 12 must act fairly and reasonably. Right to fair treatment is an essential inbuilt of natural justice.

As observed earlier, it is highly regrettable that the officials/officers of respondent No. 2 have been completely oblivious to the fact that the office

entrusted to them is sacred and was meant for use and not for abuse.

The officials/officers of respondent No. 2 cannot act as despots or monarchs and are obliged to act in accordance with the principles of

democracy, equity, equality and solidarity.

The entire scenario shocks the conscious of this Court to come across such inaction committed by those who are at the helm of affairs of

respondent No. 2.

22.. To say the least, respondent No.2 which is a ‘State’ within the meaning of Article 12 of the Constitution of India has conducted in itself of

untrustworthiness and like a belligerent litigant has dragged the petitioner to an unÂnecessary and otherwise avoidable litigation. Instead of gracefully

accepting its mistake, respondent No.2 could not resist the temptation of litigation and has fought this legal battle as if it was a war. The battle

otherwise is “unevenâ€​ as on one side is a public institution whereas on the other side is a private individual.

23.. As such, this Court has no hesitation to conclude that public money has been wasted because of adamant behaviour of officers of respondent

No.2 due to litigious attitude adopted by these officers in pursuing the instant litigation before this Court and trying to justify the inaction, which

otherwise is not at all justifiable.

24.. It must be remembered that the State defined within the ambit of State under Article 12 of the Constitution of India, is not an ordinary party trying

to win a case against one of its own citizens by hook or by crook. The State’s interest is to meet honest claims, vindicate a substantial defence and

never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices

provide such an opportunity.

25.. In Urban Improvement Trust, Bikaner vs. Mohan Lal (2010) 1 SCC 512, the Hon’ble Supreme Court observed that it is a matter of concern

that such frivolous and unjust litigations by Governments and statutory authorities are on the increase. It was further observed that statutory authorities

which existed for to discharge statutory functions in public interest should be responsible litigants and cannot raise frivolous and unjust objections nor

act in a callous and highÂ​handed manner.

26.. In Gurgaon Gramin Bank vs. Khazani and another. (2012). 8. SCC. 781,. the. Hon’ble. Supreme. Court considered the approach of the

Government to litigate and observed as under:Â​

2.. Number of litigations in our country is on the rise, for small and trivial matters, people and sometimes Central and State Governments

and their instrumentalities Banks, nationalized or private, come to courts may be due to ego clash or to save the Officers' skin. Judicial

system is over burdened, naturally causes delay in adjudication of disputes. Mediation centers opened in various parts of our country

have, to some extent, eased the burden of the courts but we are still in the tunnel and the light is far away. On more than one occasion, this

court has reminded the Central Government, State Governments and other instrumentalities as well as to the various banking institutions to

take earnest efforts to resolve the disputes at their end. At times, some give and take attitude should be adopted or both will sink. Unless,

serious questions of law of general importance arise for consideration or a question which affects large number of persons or the stakes

are very high, courts jurisdiction cannot be invoked for resolution of small and trivial matters. We are really disturbed by the manner in

which those types of matters are being brought to courts even at the level of Supreme Court of India and this case falls in that category.

27.. In Punjab State Power Corporation Ltd., Patiala and others vs. Atma Singh Grewal (2014) 13 SCC 666, the Hon’ble Supreme Court noted

the facts that Courts are burdened with unnecessary litigation primary for the reason that the Government or Public Sector Undertakings etc. decide

to litigate even when there is no merit in the claim. It would be apposite to refer to the relevant observations, which read thus:Â​

8.. It is not the first time that the Court had to express its anguish. We would like to observe that the mind set of the Government

agencies/undertakings in filing unnecessarily appeals was taken note of by the Law Commission of India way back in 1973, in its 54th

report. Taking cognizance of the aforesaid report of the Law Commission as well as National Litigation Policy for the States which was

evolved at an All India Law Ministers Conference in the year 1972, this Court had to emphasize that there should not be unnecessary

litigation or appeals. It was so done in the case of Mundrika Prasad Singh v. State of Bihar, 1979 4 SCC 701. We would also like to

reproduce the following words of wisdom expressed by Justice V.R. Krishna Iyer, who spoke for the Bench, in Dilbagh Rai Jarry v. Union

of India and Ors., 1974 3 SCC 554.

25……..5…... But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or

by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach

a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State

is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a

willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The lay out

on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in

which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted

into forensic show downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms,

giving the legal mentors of government some initiative and authority in this behalf.

9.. In its 126th Report (1988), the Law Commission of India adversely commented upon the reckless manner in which appeals are filed

routinely. We quote hereunder the relevant passage therefrom:

2.5. The litigation is thus sometimes engendered by failing to perform duty as if discharging a trust. Power inheres a kind of trust. The State

enjoys the power to deal with public property. That power has to be discharged like a trust keeping in view the interests of the cesti que

trust. Failure on this front has been more often commented upon by the court which, if it was taken in the spirit in which it was made, would

have long back energised the Government and the public sector to draw up its litigation policy. When entirely frivolous litigation reaches

the doorsteps of the Supreme Court, one feels exasperated by the inaction and the policy to do nothingness evidenced by blindly following

litigation from court to court. Dismissing a Special Leave Petition by the State of Punjab, the Court observed that the deserved defeat of the

State in the courts below demonstrates the gross indifference of the administration towards litigative diligence. The court then suggested

effective remedial measures. It may be extracted:

4.. We would like to emphasize that Government must be made accountable by parliamentary Social audit for wasteful litigative expenditure

inflicted on thecommunity by inaction. A statutory notice of the proposed action under Section 80 Code of Civil Procedure is intended to

alert the state to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted. Now

Section 80 has become a ritual because the administration is often unresponsive and hardly lives up to the parliament's expectation in

continuing Section 80 in the Code despite the Central Law Commission's recommendations for its deletion. An opportunity for setting the

dispute through arbitration was thrown away by sheer inaction. A litigative policy for the State involves settlement of governmental disputes

with citizens in a sense of conciliation rather than in a fighting mood. Indeed, it should be a directive on the part of the State to empower its

law officer to take steps to compose disputes rather than continue them in court. We are constrained to make these observations because

much of the litigation in which governments are involved adds to the case load accumulation in courts for which there is public criticism. We

hope that a more responsive spirit will be brought to bear upon governmental litigation so as to avoid waste of public money and promote

expeditious work in courts of cases which deserve to be attended to.

Nearly a decade has passed since the observations but not a leaf has turned, not a step has been taken, and the Law Commission is asked to

deal with the problem.

2.6. A little care, a touch of humanism, a dossier of constitutional philosophy and awareness of futility of public litigation would

considerably improve the situation which today is distressing. More often it is found that utterly unsustainable contentions are taken on

behalf of Government and public sector undertakings.

10.. Even when Courts have, time and again, lamented about the frivolous appeals filed by the Government authorities, it has no effect on

the bureaucratic psyche. It is not that there is no realisation at the level of policy makers to curtail unwanted Government litigation and

there are deliberations in this behalf from time to time. Few years ago only, the Central Government formulated National Litigation Policy,

2010 with the ""vision/mission"" to transform the Government into an efficient and responsible litigant. This policy formulated by the Central

Government is based on the recognition that it was its primary responsibility to protect the rights of citizens, and to respect their

fundamental rights and in the process it should become ""responsible litigant"". The policy even defines the expression 'responsible litigant'

as under:

Responsible litigant"" meansÂ​

(i). That litigation will not be resorted to for the sake of litigating.

(ii). That false pleas and technical points will not be taken and shall be discouraged.

(iii). Ensuring that the correct facts and all relevant documents will be placed before the Court.

(iv). That nothing will be suppressed from the Court and there will not attempt to mislead any court or tribunal.

2.. That Government must cease to be a compulsive litigant. The philosophy that matters should be left to the courts for ultimate decision has

to be discarded. The easy approach, ""Let the Court decide"", must be eschewed and condemned.

3.. The purpose underlying this policy is also to reduce government litigation in courts so that valuable court time would be spent in

resolving other pending cases so as to achieve the goal in the national legal mission to reduce average pendency time from 15 years to 3

years. Litigators on behalf of the Government have to keep in mind the principles incorporated in the national mission for judicial reforms

which includes identifying bottlenecks which the Government and its agencies may be concerned with and also removing unnecessary

government cases. Prioritisation in litigation has to be achieved with particular emphasis on welfare legislation, social reform, weaker

sections and senior citizens andother categories requiring assistance must be given utmost priority.

11.. This policy recognises the fact that its success will depend upon its strict implementation. Pertinently there is even a provision of

accountability on the part of the officers who have to take requisite steps in this behalf. The policy also contains the provision for filing of

appeals indicating as to under what circumstances appeal should be filed. In so far as service matters are concerned, this provision lays

down that further proceedings will not be filed in service matters merely because the order of the Administrative Tribunal affects a number

of employees. Also, appeals will not be filed to espouse the cause of one section of employees against another.

12.. The aforesaid litigation policy was seen as a silver living to club unnecessary and uncalled for litigation by this Court in the matter of

Urban Improvement Trust, Bikaner v. Mohan Lal, 2010 1 SCC 512in the following manner:

11.. The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed

against the Government and for filing appeals and revisions against adverse decisions, thereby eliminating unnecessary litigation. But it is

not sufficient if the Central Government alone undertakes such an exercise. The State Governments and the statutory authorities, who have

more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigations. Vexatious and

unnecessary litigations have been clogging the wheels of justice for too long, making it difficult for courts and tribunals to provide easy

and speedy access to justice to bona fide and needy litigants.

13.. Alas, inspite of the Government's own policy and reprimand from this Court, on numerous occasions, there is no significant positive

effect on various Government officials who continue to take decision to file frivolous and vexatious appeals. It imposes unnecessary burden

on the Courts. The opposite party which has succeeded in the Court below is also made to incur avoidable expenditure. Further, it causes

delay in allowing the successful litigant to reap the fruits of the judgment rendered by the Court below.

14.. No doubt, when a case is decided in favour of a party, the Court can award cost as well in his favour. It is stressed by this Court that

such cost should be in real and compensatory terms and not merely symbolic. There can be exemplary costs as well when the appeal is

completely devoid of any merit. [See Rameshwari Devi and Ors. v. Nirmala Devi and Ors., 2011 8 SCC 249]. However, the moot question is

as to whether imposition of costs alone will prove deterrent? We don't think so. We are of the firm opinion that imposition of cost on the

State/PSU's alone is not going to make much difference as the officers taking such irresponsible decisions to file appeals are not personally

affected because of the reason that cost, if imposed, comes from the government's coffers. Time has, therefore, come to take next step viz.

recovery of cost from such officers who take such frivolous decisions of filing appeals, even after knowing well that these are totally

vexatious and uncalled for appeals. We clarify that such an order of recovery of cost from the concerned officer be passed only in those

cases where appeal is found to be exÂfacie frivolous and the decision to file the appeal is also found to be palpably irrational and uncalled

for.

28.. In Subrata Roy Sahara vs. Union of India and others (2014) 8 SCC 470, it was observed by the Hon’ble Supreme Court that State and its

agencies litigate endlessly just because of lack of responsibility to take decision. It was observed as under:Â​

This abuse of the judicial process is not limited to any particular class of litigants. The State and its agencies litigate endlessly up to the

highest Court just because of the lack of responsibility to take decisions. So much so that we have started to entertain the impression that all

administrative and executive decisionÂmaking are being left to courts just for that reason. In private litigation as well, the litigant

concerned would continue to approach the higher Court, despite the fact that he had lost in every court hithertobefore. The effort is not to

discourage a litigant in whose perception his cause is fair and legitimate. The effort is only to introduce consequences if the litigant’s

perception was incorrect and if his cause is found to be not fair and legitimate, he must pay for the same. In the present setting of the

adjudicatory process, a litigant no matter how irresponsible he is suffers no consequences. Every litigant, therefore, likes to take a chance

even when counsel’s advice is otherwise.

29.. Similar reiteration of law can be found in a fairly recent judgment of the Hon’ble Supreme Court in Rajendra Shankar Shukla and others vs.

State of Chhattisgarh and others (2015) 10 SCC 400, wherein, the Hon’ble Supreme Court held in para 32 as under:

 “32. Further, this Court has frowned upon the practice of the Government to raise technical pleas to defeat the rights of the citizens in

Madras Port Trust vs. Hymanshu International (1979) 4 SCC 176, wherein it was opined that it is about time that governments and public

authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is

fair and just to the citizens. Para 2 from the said case reads thus :Â​ (SCC p.177)

“2. We do not think that this is a fit case where we should proceed to determine whether the claim of the respondent was barred by

Section 110 of the Madras Port Trust Act (2 of 1905). The plea of limitation based on this section is one which the court always looks upon

with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to

defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical

pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a

public authority takes up a technical plea, the Court has to decide it and if the plea is wellÂfounded, it has to be upheld by the court, but

what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not

wellÂfounded and by reason of delay in filing it, the evidence for the. purpose of resisting such a claim has become unavailable. Here, it js

obvious that the claim of the respondent was a just claim supported as it was by the recommendation of the Assistant Collector of Customs

and hence in the exercise of our discretion under Article 136 of the Constitution, we do not see any reason why we should proceed to hear

this appeal and adjudicate upon the plea of the appellant based on Section 110 of the Madras Port Trust Act (2 of 1905).â€​

It needs to be noticed that respondent No.2, who very well knew that there had been inaction on his part or his officials part, if not earlier, then at

least at the time of filing of reply in the instant petition, instead of candidly admitting such lapses, still chose to claim that everything in his department

was hunkyÂ​ dory. The State is expected to contest the litigation in a fair and square manner and not to conceal anything from the Court.

As held by the Hon'ble Supreme Court, the respondents could have been well within their right not to fill up the posts, but that could have only

been for some valid and cogent reasons. However, here, there is no reason forthcoming from the side of respondent No.2 and rightly so, because the

entire fault lies upon respondent No.2 and its officials/officers, who dumped the file.

It is high time that respondent No.2 put his house in order. Such incidence(s) cannot be simply brushed aside and permitted to be swept under the

carpet.

Therefore, we direct the Principal Secretary (Health) to. conduct. an. inquiry. into. the. entire. episode. and. Fix responsibility of the erring

officials/officers irrespective of their rank(s) and profile(s) and irrespective of the fact whether they are serving or retired. This exercise be completed

within eight months from today and report compliance on 22.3.2022.

However, now the moot question is as to what relief (if any) can be granted to the petitioner.

It. is. not. in. dispute. that. even. after. Offering appointment to 22 candidates from the waiting list, 3 posts were still lying vacant on account of

nonÂjoining of the candidates, which were required to be filled up from the next in the waiting list, when the panel was still live unless there was a

decision to the contrary. Since there is no such decision, therefore, the petitioner cannot be made to suffer for no fault on his part or on account of the

fault of respondent No.2 and its officials/officers.

Accordingly, while allowing this writ petition, we direct respondent No.3 to sponsor names of three candidates including the petitioner within a

period of one week from today and on such sponsorship, respondent No.2 shall issue appointment order(s) to the petitioner and two others as

Laboratory Assistant (Allopathy) on contract basis, OBC (UR) Post Code 654.

Since the petitioner and the remaining two candidates, who are to be given appointment, have not worked against the said post(s), they shall not be

entitled to any remuneration for the period of their nonÂemployment, however in case seniority is maintained of the similarly situated/appointed

persons, then these persons shall be entitled to seniority on notional basis from 23.11.2019 the date when 22 candidates from waiting list were offered

appointment as Laboratory Assistant and shall be placed at the bottom of the seniority list.

Pending application(s), if any, also stands disposed of. The parties are left to bear their own costs.