Ved Bhushan Sharma vs State Of H.P. & Anr

Satyen Vaidya, J

CMP No.5748 of 2024

The instant application for early hearing is allowed, for the reasons stated therein. Hence, the same is disposed of.

CWP No.2000 of 2020

The petitioner has prayed for following reliefs:-

“a. That the respondents may kindly be directed to give appointment, seniority, pay fixation, arrears to petitioner from the date from which all other Lecturers appointed pursuant to advertisement No.14/2009 dated 17.02.2009 were given.

b. That or in alternate petitioner may be granted regular appointment from the date from which all other Lecturers appointed pursuant to advertisement No.14/2009 dated 17.02.2009 were appointed along with all consequential benefits like arrears, seniority, pay fixation etc.

c. That petitioner may kindly be granted all service benefits, which were already given to his counterpart appointed pursuant to advertisement No.14/2009.

d. That the respondents may further be directed to grant consequential benefits like seniority, arrears, increment, interest @ 9% per annum with effect from the date when the same fell due till its actual realization.”

In response to the selection process initiated by Himachal Pradesh Subordinate Selection Board for the posts of Lecturer (School Cadre) in the year 2009, the petitioner also applied for the post of Lecturer (School Cadre) English. Though, the petitioner was declared qualified in Written test and was also called for Viva-Voce test, yet he was not finally selected. The petitioner availed legal remedy by filing a civil writ petition before this Court, which was ordered to be transferred to the erstwhile Administrative Tribunal. The petitioner succeeded and a judgment was passed in his favour on 31.08.2018. The review petition filed against the aforesaid judgment by the respondent-State was also dismissed on 10.04.2019. Thereafter, the petitioner was offered appointment as Lecturer (English) against General (IRDP) vacancy on contract basis.

Learned counsel for the petitioner at the time of hearing has made a submission, on the instructions of the petitioner, to the effect that the petitioner will restrict his claim only to the grant of seniority from the date when the other incumbents, who were selected through the same selection process, were given appointments.

On facts, there is no dispute that the petitioner has been appointed as Lecturer (School Cadre) English w.e.f. 01.08.2019 on the basis of judgment passed by State Administrative Tribunal by virtue of which the rejection of the candidature of petitioner was held to be bad in law. Since, the appointment had been delayed in the case of the petitioner for no fault on his part, he will be deemed to be appointed from the date when the other incumbents were appointed, as a result of the same selection process.

In an identical fact situation, a Division Bench of this Court in a bunch of matters with CWP No.3371/2019 Robin Singh Mehta & Ors. vs. State of H.P. & Ors., being the lead case, decided on 12.11.2020, has held as under:-

In the first category, all the petitioners (except petitioner No.16) in CWP No. 3371/2019, petitioner(s) in CWP No.1864/19, 1995/19, 2104/19, 2105/19, petitioner No.2 in CWP No. 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, stand appointed during the pendency of these petitions and now the only subsisting and surviving claim in their cases is with regard to their seniority.

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As regards first category, as observed above, there is no dispute with regard to their eligibility and educational qualification and the only question relates to determination their seniority.

It is more than settled 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. Reference in this regard can conveniently be made to a recent judgment of the Hon'ble Supreme Court in C. Jayachandran vs. State of Kerala and Ors., (2020) 5 SCC 230, wherein it was observed as under:-

The earlier writ petition filed by the appellant was allowed on 13 th September, 2010. The Division Bench of the High Court has directed to re¬cast the seniority amongst the seven shortlisted candidates. The appellant was one of them. The challenge to the said order by three affected candidates remained unsuccessful when SLP was dismissed by this Court on 8th October, 2010. The SLP was filed by the candidates who were granted benefit of moderation of marks. Once the direction of the Division Bench has attained finality, the appellant was entitled to seniority as per the select list to be revised as per merit of the candidates. In terms of Rule 6(2), the seniority is to be determined by the serial order in which the name appeared in the appointment order. The argument of learned counsel appearing for respondent No. 5 that the appellant was not appointed by the same appointment order, therefore, the appellant cannot claim seniority is not tenable. The appellant was entitled to be appointed along with other three candidates but because of the action of the High Court in adopting moderation of marks, the appellant was excluded from appointment. The exclusion of appellant from appointment was on account of an illegal act by the High Court which has been so found by the judgment dated 13th September, 2010. Since the select list has to be revised, the appellant would be deemed to be the part of the appointment along with other candidates in the same select list. As the actual date of appointment was on 24th February, 2011, the appellant cannot actually be treated to be appointed on 30th March, 2009 but is entitled to notional appointment from that date and consequential seniority.

In Sanjay Dhar, a three-Judge Bench of this Court held as under:

“16. For the foregoing reasons the appeal is allowed. The judgment under appeal is set aside. It is directed that the appellant shall be deemed to have been appointed along with other appointees under the appointment order dated 6¬3-1995 and assigned a place of seniority consistently with his placement in the order of merit in the select list prepared by J&K PSC and later forwarded to the Law Department…”

In Lakshmana Rao Yadavalli, this Court held as under:

“13. For the reasons recorded in Lakshmana Rao Yadavalli v. State of A.P., the present appeals are allowed and it is directed that the High Court as well as the respondent State will do the needful for giving appointment to the appellant with retrospective effect i.e. from the date on which she ought to have been appointed, however, she shall not be paid salary for the period during which she has not worked as a District and Sessions Judge. We are sure that the respondents will do the needful for the appointment of the appellant at an early date.”

This otherwise has been consistent view of this Court in Balak Ram vs. State of H.P., 2015(1) SLC 504, Poonam Kumari vs. State of H.P. & anr., 2015(4) HP LR 827 and Monica Sharma vs. Dr. Y. S. Parmar University of Horticulture and Forestry, Nauni & ors., 2015(5) ILR HP 491.

Accordingly, the claims of the petitioners in first category are allowed and consequently, 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.”

[Emphasis supplied]

In view of the above noted exposition of law, no exception can be made in the case of the petitioner.

Accordingly, the petition is allowed only to the extent that the petitioner is held entitled to the benefit of seniority from the date of appointment of other incumbents, who were appointed in pursuance to the same selection process, which was initiated by the Himachal Pradesh Subordinate Selection Board, Hamirpur, vide advertisement No.14/2009 dated 17.02.2009, Annexure P-1. Respondents are directed to do the needful in terms of this judgment within eight weeks.

The petition stands disposed of in the aforesaid terms, so also the pending miscellaneous application(s), if any.