1. Two separate writ petitions bearing CWP(T) Nos. 6340 & 11665 of 2008 were filed by S/Sh. Bhushan Lal Sharma & Ajay Sharma respectively, questioning the selection/appointment of S/Sh. Rajesh Kumar, Rakesh Rana and Sumit Sood as Assistant Engineers (Civil) [hereinafter referred as AE(C)] in the respondent Irrigation & Public Health Department. These writ petitions were partly allowed by the learned Single Judge on 03.10.2012. It was noticed in the judgment that Sh. Rajesh Kumar had not joined the post in question. Selection of Sh. Rakesh Rana was set aside, whereas selection of Sh. Sumit Sood was upheld in the judgment. Against the resultant two vacancies created because of non-joining of Sh. Rajesh Kumar and setting aside the selection of Sh. Rakesh Rana, the respondent-department was directed to call for the names of next two meritorious candidates. As a consequence of implementing the judgment passed by the learned Single Judge, Sh. Ajay Sharma-the petitioner in CWP(T) No.11665/2008 and one Sh. Anand Blouria, next in the order of waiting list, were issued the appointment orders. Sh. Bhushan Lal Sharma, [Petitioner in CWP(T) No.6340/2008] at serial No.3 in the waiting list could not be appointed. Aggrieved, he has challenged the judgment passed by the learned Single Judge in the instant appeal.
2. It is not in dispute that Sh. Rakesh Rana, whose selection to the post of AE(C) was set aside by the learned Single Judge, has not questioned the judgment. The judgment to this an extent has become final.
3. Gist of the appeal.
The appellant Sh. Bhushan Lal Sharma has filed instant appeal with two points attack.
The first line of attack is against Sh. Anand Blouria. It has been contended that Sh. Anand Blouria was a fence sitter. The torch was ignited and carried by the appellant Sh. Bhushan Lal Sharma and Sh. Ajay Sharma the original writ petitioners. Sh. Anand Blouria cannot be allowed to reap the benefit of the judgment rendered in the cases filed by the appellant and Sh. Ajay Sharma. Learned Single Judge erred in directing the respondents to give appointment against the resultant two vacancies from next in order in the waiting list.
The second line of attack is against the selection/appointment of Sh. Sumit Sood to the post of AE(C). It has been argued that Sh. Sumit Sood was not a ‘dependent’ ward of ex-serviceman. He was not eligible for the post, which could be filled up only either from ex- servicemen or their dependent wards. Learned Single Judge erred in not setting aside the selection/appointment of Sh. Sumit Sood. In case the selection/appointment of Sh. Sumit Sood goes then one more vacancy of AE(C) would become available. The appellant being next in the waiting list at serial No.3 (after Sh. Ajay Sharma and Sh. Anand Blouria) would then secure appointment as AE(C).
4. Sh. Sumit Sood figures as respondent No.3, whereas Sh. Anand Blouria a non-party to the above numbered two writ petitions has been impleaded as respondent No.4 in the instant appeal. We may now consider the case of the appellant against the selection/appointment of Sh. Anand Blouria and Sh. Sumit Sood.
5. Case against Sh. Anand Blouria (respondent No.4).
5(a) As a result of implementation of the judgment dated 03.10.2012 passed by the learned Single Judge, the resultant two vacancies of AE(C) were filled up by the respondents from next in the waiting list. Consequently, Sh. Ajay Sharma and Sh. Anand Blouria figuring at serial Nos.1 & 2 in the waiting list got appointed as AE(C). Sh. Bhushan Lal Sharma, the appellant herein, was at serial No.3 in the waiting list. There were only two resultant vacancies, therefore, he could not get the benefit of the judgment delivered in his writ petition. Appellant’s grievance now projected is that Sh. Anand Blouria was in the waiting list. He did not challenge the selection and appointment of the selected candidates. He was satisfied with his non-selection. He was a fence sitter. Therefore, benefit of the judgment passed by the learned Single Judge in the writ petitions filed by the appellant & Sh. Ajay Sharma could not have been extended to him. Learned counsel for the appellant contended that it was only the appellant Sh. Bhushan Lal Sharma and Sh.Ajay Sharma, who being the writ petitioners before the learned Single Judge, could have been appointed against the resultant two vacancies of AE(C). In support of this contention, learned Counsel for the petitioner placed reliance upon (2006) 11 SCC 464 titled U.P. Jal Nigam Vs. Jaswant Singh; (2007) 2 SCC 725 titled A.P Steel, Re-Rolling Mill Ltd. Vs. State of Kerala & Others; (2011) 4 SCC 374 titled BSNL Vs. Ghanshyam; (2015) 1 SCC 347 titled State of Uttar Pradesh & Others Vs. Arvind Kumar Srivastava & Others and 2020 SCC Online 103 titled U.P. Power Corporation Ltd. Vs. Ram Gopal. Learned counsel for respondent No.4 defended the judgment highlighting higher merit of respondent No.4 over that of the appellant in the selection process.
5(b). We are not impressed with the argument raised by the appellant against appointment of Sh. Anand Blouria. Irrespective of the fact whether Sh. Anand Blouria was satisfied with his non-selection or with the selection/appointment of other candidates and whether he had himself filed the writ petition against the selection/appointment of other candidates or not, the fact remains that he was at serial No.2 in the waiting list i.e. above the appellant. The judgments cited by learned counsel for the appellant operate in that field, where the affected parties approached the Court and relief was given to them, then it is held that fence sitters who did not approach the Court cannot claim that such relief should also be extended to them. Following legal principles summed up in (2015) 1 SCC 347, titled as State of U.P. Vs. Arvind Kumar Srivastava can be beneficially extracted:-
“22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
22.1. The normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.
23. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not chalelnge these cancelleation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above.”
The ratio of the judgments relied by the appellant is not applicable to the facts of instant case. Respondent No.4/Anand Blouria was higher in merit to the appellant. Respondent No.4 may not have laid challenge to the selection/appointment of selected/appointed persons on the posts in question. But this fact will not alter his merit position. In AIR 1979 SC 765 titled State of Kerala Vs Kumari T.P. Roshana & Others, Hon’ble Apex Court while considering the admission of students on ground of regional discrimination observed that the root of the grievance and the fruit of the writ are not individual but collective the measure is academic excellence, not litigative persistence. Relevant portion from the judgment runs as under:-
“40……….The root of the grievance and the fruit of the writ are not individual but collective and while the 'adversary system' makes the Judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the court's power into affirmative structuring of redress so as to make it personally meaningful and socially relevant. Frustration of invalidity is part of the judicial duty; fulfilment of legality is complementary. This principle of affirmative action is within our jurisdiction under Article. 136 and Article 32 and we think the present cases deserve its exercise.
41………...
42. The selection of these 30 students will not be confined to those who have moved this Court or the High Court by way of writ proceedings or appeal. The measure is academic excellence, not litigative persistence. It will be thrown open to the first 30, strictly according to merit measured by marks secured. The apportionment as between graduates and pre-degree students and the application of the communal reservation will apply to these 30 to be selected. The Selection Committee will make its decision on or before the 31st January 1979. The Universities concerned will convey their approval to the Government for the nceessary addition to the student strength in obedience to the direction of this Court on or before the 27th January 1979.”
In (2010) 6 SCC 759 titled H.P. Public Service Commission Vs. Mukesh Thakur, the Apex Court, while rejecting the argument of depriving a meritorious candidate from selection only on the ground that he has not approached the Court, observed:-
“22. Such a direction has been passed apparently in view of the fact that fresh selection proceedings had commenced for the subsequent year. Thus, in such circumstances, it could be possible for the court to reject the same on the ground of delay and laches rather than issuing a direction that no such petition shall be filed, particularly, in view of the fact that candidates having roll numbers 1096 and 1476 had also secured 89 marks in the said paper. Candidate having roll number 1096 had secured 462 marks, i.e., more than 50% in aggregate. Therefore, depriving him only on the ground that he could not approach the court cannot be justified, particularly in view of the fact that Court has competence to grant equitable relief to persons even if they are not before the Court. (See State of Kerala Vs. Kumari T.P. Roshana & Ors., AIR 1979 SC 765 ; Ajay Hasia etc. Vs. Khalid Mujib Sehravardi & Ors. etc., AIR 1981 SC 487 ; Punjab Engineering College, Chandigarh Vs. Sanjay Gulati & Ors., AIR 1983 SC 580 ; Thaper Institute of Engineering & Technology, Patiala Vs. Abhinav Taneja & Ors.; (1990) 3 SCC 468 ; Sharwan Kumar & Ors Vs. Director General of Health Services & Ors, AIR 1992 SC 2202 ; and K.C. Sharma & Ors. Vs. Union of India & Ors., AIR 1997 SC 3588 ). More so, Court has also power to mould the relief in a particular fact-situation.
Respondent No.4-Anand Blouria was at serial No.2 in the waiting list. Admittedly, the appellant Sh. Bhushan Lal Sharma was at serial No.3 in the waiting list. Therefore, the appellant could not have been appointed ignoring the higher merit of Sh. Anand Blouria simply because appellant was one of the writ petitioners. It is not in dispute that pursuant to the judgment passed by the learned Single Judge, two vacancies of AE(C) had to be filed up by the respondents in the order of merit in the waiting list. Naturally, Sh. Anand Blouria being higher in the merit to the appellant had to be appointed.
For the above reasons, we do not find any fault in the impugned judgment to the extent it directs the respondents to fill up the resultant vacancies from the next meritorious candidates. We also do not find any infirmity in the selection and appointment of Sh. Anand Blouria being at serial No.2 in the waiting list. The point is answered accordingly.
6. Case against Sh. Sumit Sood (respondent No.3)
6(a) Bare minimum facts for deciding the challenge laid to the selection/appointment of Sh. Sumit Sood are that an advertisement was issued by the respondents in the year 2003 for filling up six posts of AE(C) Class-I in Irrigation & Public Health Department. All these six posts were meant for ex-servicemen. Out of these, one was reserved for S.C. Ex- Servicemen (backlog) & five were reserved for General Ex- Servicemen. The advertisement stated that ‘in case candidates of Ex-serviceman category are not available, posts will be filled up amongst the wards of respective categories as such ward of Ex-serviceman may apply.’ Advertisement also gave format of application clearly indicating that it would be the dependent ward of Ex- serviceman, who can apply for the post. It would be appropriate at this stage to extract the relevant portion of the application format:-
“8. Name of category: (SC/ST/OBC/WFF/Ex- Man/Dependent Ward of Ex-Man/Physical/Visually handicapped.”
Sh. Sumit Sood applied for the post. In his application form against column No.8, he mentioned his category as ‘ward of ex-serviceman’. The word ‘dependent’ was omitted by him in his application against this column. He was eventually selected and appointed as AE(C).
6(b) Learned counsel for the appellant contended that Sh. Sumit Sood was already employed as a Junior Engineer in the Public Works Department at the time of his applying for the post in question. He was not dependent ward of ex-serviceman. In terms of the advertisement, it was only the dependent ward of ex-serviceman, who could apply for the post. Sh. Sumit Sood, therefore, was not eligible for the post. It was for this reason that Sh. Sumit Sood had knowingly did not mention the word ‘dependent’ while submitting his application for the post. Learned counsel for the appellant also brought to our notice the memorandum dated 03.06.2007, issued to Sh. Sumit Sood by the respondents, whereby a show cause notice was issued to him for proposed termination of his service for securing his appointment by misleading and giving incorrect information. Learned counsel for the appellant also relied upon the Government instructions to contend that the posts in question were meant for ex- serviceman category and in their absence for their dependent wards. Sh. Sumit Sood being in employment at the time of applying for the post could not be treated as dependent ward of ex-serviceman.
Per contra, learned counsel for respondent No.3 Sumit Sood, submitted that the advertisement did not specifically debar in-service wards of ex-servicemen from applying for the posts in question. The fact that in case of employed candidates, NOC of their employers was called for in the advertisement, itself shows that it was not necessary for the ward of ex-serviceman to be dependent upon ex- serviceman. Learned counsel also submitted that the memo issued to Sh. Sumit Sood on 03.06.2007 was replied by him. Considering his reply, respondents had dropped the proceedings taken under the memo. Learned counsel further submitted that Sh. Sumit Sood had neither applied nor was he appointed to the post of Junior Engineer as a ward of ex- serviceman. His father also had never availed any benefit as an ex-serviceman. Therefore, there was no bar upon Sh. Sumit Sood to apply for the post in question as ward of ex- serviceman.
Learned Additional Advocate General supported the impugned judgment. He has also placed on record instructions to the effect that 5 posts of AE(C) falling to the category of ex-servicemen are lying vacant in the respondent department.
6(c) For the following reasons, we find considerable force in the contention of learned counsel for the appellant that Sh. Sumit Sood was not eligible for the post in question and, therefore, could not be appointed as AE(C) :-
6(c)(i) The posts were advertised for ex-servicemen. In the absence of ex-servicemen, the posts could be filled up from their wards. The format of the application (partly extracted above) provided that the ward of ex-serviceman applying for the posts must be the dependent ward.
6(c)(ii) Government of H.P. Department of Personnel letter dated 25.07.1983 provides for eligibility of the dependent sons and daughters of ex-servicemen for the pos(s) reserved for ex-servicemen. It refers to the decision of the Government that dependent sons and daughters of ex- servicemen, who fulfill the eligibility criteria prescribed for various posts, can also be considered on merits against the posts reserved for ex-servicemen to the extent of non- availability of suitable ex-servicemen after four years and if no suitable ward is available in the 5th year, the vacancies will lapse. It was also stipulated that this entitlement would be available only to one dependent ward of ex-serviceman. Relevant part of the instructions is extracted hereinafter:-
“2. Keeping in view the position stated above, it has been decided by the Government that the dependent sons and daughters of ex-servicemen, who fulfill the conditions of education age etc. prescribed for various posts may also be considered on merits for the posts reserved for ex-servicemen to the extent of non-availability of suitable ex- servicemen after 4 years and, if no suitable ward is available in the fifth year, the vacancies will lapse. This entitlement would be available to one dependent ward only. In the event of the selection of the wards of ex-servicemen against the reserved vacancies under these instructions, they will not be entitled to the benefits which are available to the ex- servicemen in accordance with the rules regarding recruitment of ex-servicemen in civil services/posts.”
State Government instructions dated 24.09.1983 provided for certificate/affidavit to be produced by the dependent sons/daughters of ex-servicemen for their consideration against the posts reserved for ex-servicemen. The form of certificate/affidavit to be furnished by the wards of ex-servicemen for consideration against the posts reserved for ex-servicemen clearly provides that such applicants applying for the posts reserved for ex-servicemen must testify themselves to be dependent ward of ex- servicemen and that they had not been rehabilitated through employment with H.P. Government/Corporation/Autonomous bodies of H.P.
It is in the above background that the format of application prescribed for the posts in question assumes significance. The format clearly indicated that posts were meant only for ex-servicemen and in their absence the posts will be filled up from dependent wards of the ex-servicemen. Therefore, it was only the dependent wards of ex- servicemen who were eligible for the posts in question. Learned counsel for Sh. Sumit Sood did not deny the implications of the above referred instructions. He, however, pressed into service a letter dated 15.09.2010 issued by Principal Secretary (Personnel) to the Government of Himachal Pradesh to highlight that practice of appointing wards of ex-servicemen against posts reserved for ex- servicemen, was in vogue, irrespective of dependency of wards. This argument is wholly misconceived. The letter dated 15.09.2010 does not whittle down the rigors of previous instructions issued by the State on the subject on 25.07.1983 & 24.09.1983. Rather it re-inforces the same & deprecates the deviations therefrom.
6(c)(iii) It is admitted position that Sh. Sumit Sood was gainfully employed at the time of applying for the post in question. Hon’ble Apex Court has held that gainfully employed children cannot be considered ‘dependent’. Reference in this regard can be made to following judgments;- (1996) 8 SCC 369, titled Dilwan Singh & Others Vs State of Haryana & others. Relevant part of the judgment reads as under:-
“3.It is contended by Shri Mahabir Singh, learned counsel for the appellants that the selection Board has adopted a policy of calling the ex-servicemen and the dependent children of the ex-servicemen together to consider their cases for recruitment according to merit which would stand an impediment to the ex-servicemen. We find force in the contention. The object of reservation of the ex- servicemen is to rehabilitate them after their discharge from the defence services. As per the instructions issued by the State Government, in the absence of availability of the ex- servicemen instead of keeping those posts unfilled, the dependent children, namely, son or daughter of ex-servicemen would also to be considered. The object thereby would be that the Selection Board should first consider the claims of the ex-servicemen and have their eligibility considered independently it the first instance before the claims of the dependent children of the ex- servicemen are considered. If they are found eligible and selected, for the balance unfilled posts, the selection should be done from among the dependent children of the ex-servicemen.
5. Counter-affidavit has been filed on behalf of the respondent-Selection Board contending that the Sainik Board had issued a certificate stating that they are the dependants of the ex-servicemen. On that basis, they had become eligible for consideration. The Board had accepted the same. It did not have any source for independent verification and, therefore, they have accepted them as dependants. We are of the view that the Board is not justified in law to take such a stand. The Board being the recruiting agency, it is its duty to verify and find out whether a candidate who has laid his claim as a dependant son or daughter of the deceased ex- servicemen, fulfilled the criteria referred to earlier for recruitment to the vacancies reserved for unfilled posts of ex-servicemen. On being satisfied, the other consideration has to be looked into and selection process could be made and candidates are selected according to prescribed procedure. It being the primary duty of the Selection Board, it cannot abdicate its function by merely relying on certificate issued by the Sainik Board which is only a recommending authority certifying that the candidate as a dependent of the ex- servicemen It may be accepted only a Prima facie evidence. The certificate does not ipso facto became conclusive nor would it entitle the candidate to be considered as a dependant of the ex- servicemen. It would be for the Board to examine and in case of any doubt, it should call upon the candidate to satisfy the Board that the candidate is dependant and fulfills the requirements prescribed in the guidelines. That was not done in these cases.”
In (1998) 5 SCC 452 titled Haryana Public Service Commission Vs. Harinder Singh & Another, following was observed:-
“8. The whole idea of the reservation is that those who are dependent for their survival on men who have lost their lives or become disabled in the service of the nation should not suffer. The public purpose of such reservation would be totally lost if it were to be made available to those who are gainfully employed. There is no justification for construing the words "dependants of ex- serviceman" in any manner other than that in which the appellant has construed them. This is in accord with the reservation policy itself, as shown by the quotation therefrom aforestated.”
Sh. Sumit Sood, was aware of the fact that the posts in question could be filled up either from ex- servicemen or from their dependent wards. It is for this reason that he deliberately omitted the word ‘dependent’ while describing his category in his application form. This is despite the fact that the application form required him to clearly mention his category i.e. either ex-serviceman or dependent ward of ex-serviceman. It was in this very manner the respondent-department had construed the application form at the time of issuing memo to Sh. Sumit Sood on 03.05.2007.
6(c)(iv) The argument raised by respondent No.3 that the in-service wards of ex-servicemen could also apply for the posts since the advertisement required furnishing of employers’ NOC for the in-service candidates, does not appeal to us. It was a case where composite advertisement was issued. The advertisement was issued not just for filling up the posts from ex-servicemen category in the respondent-department, but various other posts falling to the share of several other categories were also advertised in different other departments under the same advertisement. The condition of obtaining the NOC from employers for in- service candidates may have implications for the posts advertised in other departments but not for the posts of ex- servicemen advertised in the respondent-department.
7. Conclusion
The sum total of above discussion is that:-
(a) There is no illegality in appointment of respondent No.4/Sh. Anand Blouria to post of AE(C) against the resultant vacancies created due to non-joining of Sh. Rajesh Kumar & setting aside of appointment of Sh. Rakesh Rana. The impugned judgment to this an extent is upheld.
(b) The selection/appointment of Sh. Sumit Sood, as AE(C) can not be justified as he being not a dependent ward of ex-serviceman was ineligible for the post in question. Having held this, we cannot also be oblivious of the fact that Sh.Sumit Sood has actually been serving on the post ever since his appointment on 26.02.2005. We are now in the year 2022. He is presently around 47 years of age and has become over-age for the Government employment. In the facts of the case, it will be extremely hard to remove Sh. Sumit Sood/respondent No.3 from the service at this stage. However, the rightful claim of the appellant on the post in question can also not be brushed aside, especially when appointments in question are subject to decision of the case. In the peculiar facts and circumstances of the case, we, therefore, direct the respondents to appoint the appellant as AE(C) against the post held by Sh. Sumit Sood. The appellant shall be entitled to seniority from due date with all consequential benefits flowing from such appointment. The financial benefits shall be granted to him notionally till the date of actual appointment. We also order that the benefits given to Sh. Sumit Sood pursuant to his appointment as AE(C) in the respondent-department shall not be withdrawn from him. Henceforth, he shall, however, be considered having been appointed against the post of Assistant Engineer (Civil) falling to the category of ex-servicemen against first vacancy out of total five posts of Assistant Engineer (Civil), presently stated to be lying vacant. Sh. Sumit Sood shall rank junior to the appellant. The necessary action to comply the above directions shall be completed by the respondent-department within two months from today. Present appeal is disposed of in these terms alongwith pending miscellaneous application(s), if any.
