Allowed

Mrinal Thakur v. State of Hp and Others

Himachal Pradesh HC3 Nov 2023CWP/4473/2023

Case brief

AI extract

What is this about?

A contractual Pharmacy Officer's appointment under disability reservation was withdrawn to accommodate a senior candidate while retaining a junior. The court quashed the withdrawal and consequential orders, finding violations of natural justice, recruitment rules and horizontal reservation principles. It ordered reinstatement with continuity and pay fixation, excluding past monetary benefits, with

What did the court decide?

Withdrawal and consequential orders quashed; reinstatement with continuity and pay fixation, excluding past monetary benefits, without disturbing the junior, by 29 February 2024.

Mrinal Thakur Vs State of Hp and Others — Service and Employment | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CWP No: 4473 of 2023 Decided on: 3^rd November 2023

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Mrinal Thakur ...Petitioner

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Versus

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State of Himachal Pradesh and others

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…Respondents

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Coram

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Hon’ble Mr. Justice Ranjan Sharma, Judge

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1 Whether approved for reporting? Yes

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For the petitioner : Mr. Jagish Thakur, Advocate For the respondents: Mr. B C Verma, Additional Advocate General for Respondents 1 to 3. Mr B S Thakur for Respondent no 4.

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Ranjan Sharma, Judge (Oral)

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The petitioner, a former Pharmacy Officer, in

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the Health Department of the Respondent State, has come up before this Court, seeking the following reliefs:-

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(i) That the impugned Annexures dated 7.7.2023 as contained in Annexure P-7 and P-8 issued by respondent No. 2 and 3 may very kindly be quashed and set-aside and further writ of mandamus be issued to respondent No 2 and 3 to allow the petitioner

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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to continue as Pharmacist Pharmacy Officer at Zonal Hospital Mandi, HP.

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(ii) That after quashing Annexures P-7 and P-8, the respondent No. 2 & 3 be directed to count the intervening period i.e. 7.7.2023 till the date of reengagement as continuous without any break.

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(iii) That the appointment of the respondent No 4 as Pharmacist/ Pharmacy Officer may very kindly be quash and set aside. (iv) That the respondent No. 2 be directed to produce the record pertaining to selection /appointment of petitioner and respondent No 4.

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(v) Any other order or further order which this Hon’ble Court deem fit and proper in the facts and circumstance of the case in the interest of justice and fair play.”

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2. FACTUAL MATRIX:

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2(i). Case of the petitioner, as set up by Mr. Jagdish Thakur, learned counsel is that after passing Diploma in Pharmacy in the year 2007, (Annexure P-1), the

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petitioner got himself registered with the Himachal Pradesh Pharmacy Council in December 2013, (Annexure P-2) .

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Petitioner is having 50% locomotor permanent disability

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(Annexure P-3). In this background, the petitioner was fully eligible and entitled to be considered for recruitment, against back-log reserved post of Pharmacists (Allopathy), later designated as Pharmacy Officers, meant for persons with disability (PwD) under the Respondent State.

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2(ii). Keeping in view, the Recruitment and Promotion Rules for the post of Pharmacy Officer dated 16.10.2017 {taken on record} the Respondent no 2- Director of Health Services, Himachal Pradesh, sent a requisition to all the employment exchanges in the respondent state, on 2.7.2021,

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(Annexure P-4), for filling up 17 posts of Pharmacists (Allopathy), later designated as Pharmacy Officers, under batch wise recruitment, from persons with disabilities (PwD). Out of these 17 backlog posts, 9 posts were reserved for Hearing Impaired Persons and 8 posts were reserved for Orthopedically Impaired/Handicapped Persons, alike the petitioner.

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2(iii). Since the petitioner was educationally qualified and was Orthopedically Impaired/Handicapped and was fully eligible to be considered for appointment against the aforesaid requisitioned 8 reserved posts meant for the

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Orthopedically Impaired/Handicapped persons, in accordance with the Recruitment and Promotion Rules and therefore, in response to the requisition dated 2.7.2021, (Annexure P-4), the petitioner appeared for counselling before four member special selection committee {in terms of Annexure R-1} on 6.9.2022 and on recommendations of four member selection cum-counselling committee, Respondent no 2-Director of Health Services, Himachal Pradesh, appointed the petitioner, Mrinal Thakur, as Pharmacy Officer, on contract basis, against the post reserved for Orthopedically Handicapped-Locomotive Handicapped, through batch wise recruitment on 7.6.2023, ( Annexure P-5), initially for a period of one year, which was extendable on year to year basis.

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2(iv). In compliance to the appointment orders dated 7.6.2023, (Annexure P-5), the petitioner joined as Pharmacy Officer, on contract basis, in Zonal Hospital Mandi on 8.6.2023, ( Annexure P-6) and o n joining, he executed the contract-agreement on 8.6.2023 {taken on record}, pres cribing the terms and conditions of appointment. 2(v). Consequent upon joining on 8.6.2023, though the petitioner had been performing his duties and functions

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in Zonal Hospital, Mandi without any blemish, defect or shortcoming ever been pointed out to him, but surprisingly, the respondent no 2 -Director of Health Services, Himachal Pradesh has passed an order on 7.07.2023, (Annexure P-7),

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{hereinafter referred to as impugned order}, in withdrawing the offer of appointment dated 7.6.2023, (Annexure P-5), has resulted in his abrupt termination from service in violation of principles of natural justice, by ignoring the relevant considerations that the junior most amongst Orthapedically Impaired appointees ought to have been proceeded against instead of petitioner-senior; and when, other vacant posts in the communication dated 17.6.2023 (Annexure R-5) were available against which the rights and equities should have

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been adjusted, instead of passing the impugned order in an arbitrary manner unknown to law which is violative of Articles 14 and 16 of the Constitution of India.

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In this background, the petitioner has come up in these proceedings, praying for quashing the impugned orders dated 7.7.2023 (Annexure P-7), which led to his termination and has claimed reinstatement in service as Pharmacy Officer with all service benefits.

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3. STAND OF RESPONDENTS IN REPLY:

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3(i). The official respondents 1 to 3 have filed a reply, on the affidavit dated 17.8.2023, sworn by Mr Gopal Beri, acting Director Health Services, Himachal Pradesh. In the reply, the stand of the respondents is that the department decided to fill up 17 posts of Pharmacy Officers belonging to Persons with Disabilities (PwD), out of which 9 posts were to be filled from Hearing Impaired Persons and 8 posts from Orthopedically Impaired/Handicapped Persons. It is averred in the reply

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that the petitioner was eligible and was issued the offer

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of appointment on 7.6.2023 (Annexure P-5) and he joined on 8.6.2023 (Annexure P-6) but the Respondent No 4-Vikas Kanwar submitted a representation dated 9.6.2023, received in directorate on 14.6.2023, (Annexure R-2) stating that his batch-wise seniority {being diploma holder of December 2002} was ignored and in these circumstances, the screening committee reviewed the matter and found that the private respondent no 4-Vikas Kanwar had a right of appointment over and above the petitioner {being diploma holder of July 2007} and therefore, in order to

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give appointment to the private respondent no 4, it became necessary to withdraw the offer of appointment erroneously given to the petitioner. It is further averred in Para 13 of the reply, that the offer of appointment was withdrawn, as no vacant post was available and all 8 posts meant for Orthopedically Impaired /Handicapped persons were filled up. However, it is stated that though requisition for 17 posts meant for specially abled persons has been sent to employment exchanges on 17.6.2023 (Annexure R-5) and out of which 2 posts are reserved for Orthopedically Impaired/Handicapped Persons, against which the petitioner will be considered, subject to eligibility and batch-wise seniority under the Rules. It is in this background, that the respondents have prayed for dismissal of the writ petition.

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3(ii). The private respondent no 4, was represented by Mr B S Thakur, who did not file a reply, but has adopted the stand of official respondents.

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4. STAND OF PETITIONER IN REJOINDER:

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The petitioner filed a rejoinder denying the stand in the reply and reiterating the stand taken in the writ petition to the effect that the impugned order is arbitrary

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when, many backlog vacant posts meant for the category of the petitioner i.e. Orthopedically Impaired /Handicapped

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Persons were available.

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5 . Heard Mr. Jagdish Thakur learned counsel for the petitioner and Mr. B C Verma, learned Additional Advocate General for the Respondents 1 to 3 and Mr B S Thakur, for the private respondent no 4.

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6. Before proceeding to analyze the rival

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contentions of the parties, it would be appropriate to

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have a recap of the Recruitment and Promotion Rules for the post of Pharmacist (Allopathy), redesignated as

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Pharmacy Officer of 2017 {taken on record} ; and the relevant extract of the appointment order dated 7.6.2023 (Annexure P-5 ; the contractual agreement dated 8.6.2023 {taken on record} ; and the impugned order dated 7.7.2023

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(Annexure P-7,) withdrawing the offer of appointment resulting in termination of the petitioner from service, is reproduced herein below:-

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6(i). The operative part of the Recruitment and Promotion Rules for the post of Pharmacist (Allopathy), redesignated as Pharmacy Officer dated 16.10.2017 and

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Rule 15-A dealing with terms and conditions of contractual

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appointment, of the petitioner, reads as under:

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Name of Post : Pharmacist

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Number of Posts : 870

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3 to 6.…not relevant…

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Minimum Educational (a) Essential Qualification(s):-

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and other qualifications required for direct recruits

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i) 10 plus 2 in Science from a from a recognized Board of School Education.

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(ii) Degree or Diploma in Pharmacy from a recognized University or an Institution duly recognized by the Central/State Government.

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(iii) Must be registered with the Pharmacy Council of the concerned State/Central Government.

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(b) Desirable Qualification(s)

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Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.

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(c) Notwithstanding the provision contained in sub-rule a (i) supra the candidates who have done diploma in Pharmacy prior to 12.9.2001 and are matriculates shall not be rendered ineligible.

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8 & 9 …Not Relevant…

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Method of recruitment ; 100% by direct recruitment Whether by direct recruitment

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or by promotion/secondment /transfer and the percentage

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of post(s)

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(i) 50% by direct recruitment recruitment on a regular basis or by recruitment on contract basis, as the case may be, through the concerned recruiting agency.

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(ii) 50% recruitment on batch wise basis on a regular basis on contract basis, as the case may be at Department level.

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11.to14. …not relevant…

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Selection for appointment to post by direct recruitment:

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Selection for appointment to the post in the case of direct recruitment shall be made on the basis of merit of written examination followed by evaluation as specified in Appendix-I appended to these rules, or if the Himachal Pradesh Public Service Commission or other recruiting agency/ authority, as the case may be, so considers necessary or expedient on the basis of merit of written examination followed by evaluation as specified in Appendix-I appended to these Rules, preceded by a screening test (objective type) or practical test or sill test or physical test, the standard / syllabus, etc. of which will be determined by the Himachal Pradesh Public Service commission / other recruiting agency /authority, as the case may be.

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Batch Wise Recruitment:

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Selection for appointment to the post in the case of contract appointment on batch-wise basis will be made by the concerned recruiting authority i.e. Director, Health Services on the basis of batch-wise merit/inter-seseniority of the candidates of a particular batch which has passed out from recognized University/Institution duly recognized by the State/Central Government. The date recorded on the original “Details Marks Certificate” of final professional examination of the candidate by the university/Institution shall be deemed as the date for reckoning the batch of the candidate. The batch-wise merit of a particular batch shall be determined on the basis of marks obtained in the degree /diploma course in Pharmacy. While preparing batch -wise inter-se-seniority, the candidates possessing professional degree shall be placed en-bloc above the diploma holders. In case, the marks obtained in degree / diploma by two or more candidates are same the interse-merit would be decided on the basis of marks obtained in 10+2 level and if there is still a tie, the candidates senior in age would be placed above.

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15-A. Selection for appointment to the post by contract appointment :

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Notwithstanding anything contained in these rules, contract appointment to the post will be made subject to the terms and conditions given below:

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(I). CONCEPT

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(a) Under this policy, the Pharmacist in the Health & Family Welfare Department will be engaged on contract basis initially for one year, which may be extendable on year to year basis.

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Provided that for extension/ renewal of contract period on year to year basis the concerned HOD shall issue a certificate that the service and conduct of the contract appointee is satisfactory during the year and only then his period of contract is to be renewed/ extended.

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(b) POST FALLS WITHIN THE PURVIEW OF HPSSC:

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The Director, Health & Family Welfare H.P. after obtaining the approval of the Government to fill up the vacant post(s) on contract basis will place the requisition with the concerned recruiting agency i.e. Himachal Pradesh Staff Selection Commission, Hamirpur.

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The Director of Health Services after obtaining the approval of the Government to fill up the vacant posts on contract basis will advertise the details of vacant posts in at least two leading newspapers and invite applications from the candidates having the prescribed qualifications and fulfilling the other eligibility condition as prescribed in these rules.

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(d) The Selection will he made in accordance with the eligibility conditions prescribed in these R&P Rules.

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II. CONTRACTUAL EMOLUMENTS:

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…Not relevant…

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III. APPOINTING/DISCPLINARY AUTHORITY

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Director of Health Services H.P. will be the

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appointing and disciplinary authority.

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IV SELECTION PROCESS :

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…..Not relevant…….

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V COMMITTEE FOR SELECTION OF CONTRACTUAL APPOINTMENTS:

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..Not relevant…

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VI. AGREEMENT :

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After selection of a candidate, he/she shall sign an agreement as per Appendix “II” appended to these Rules.

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VII. TERMS AND CONDITIONS :

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(a) …. not relevant….

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(b) The services of the contract appointee will be purely on temporary basis. The appointment is liable to be terminated in case the performance/conduct of the contract appointee is not found satisfactory .

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(e) An official appointed on contract basis who has completed three years tenure at one place of posting will be eligible for transfer on need based basis wherever required on administrative grounds.

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(f) to (h)..not relevant…

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16 to 18. … not relevant…

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6(ii). The operative part of the appointment order

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dated 7.6.2023 (Annexure P-5) appointing the petitioner as

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a Pharmacy officer, on contract basis and the terms and conditions in Annexure “A” to the appointment order dated 7.6.2023, reads as under:-

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“3. The Contractual Appointee will be engaged on contract basis initially for one year, which may be extendable on year to year basis . Provided that for extension renewal of contract period one year to year basis the concerned Head of the Institution. Principals CMOs Sr. Medical Superintendent/Medical Superintendent Block Medical Officer of concerned institution on behalf of the Director Health and Family Welfare and shall issue a certificate that the service and conduct of the contract appointee is satisfactory during the year and only then his/her period of contract is to be renewed extended.

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That age, educational and profession qualification possessed by the candidate shall be as per the R & P Rules of the Pharmacist now as Pharmacy Officer on 16.10.2017, 16 09.2022.

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The Pharmacy Officer appointed on contract basis will be paid consolidated fixed contractual amount 217820-PM (which shall be 60% of the first cell of the application level of pay matrix of the corresponding cadre). The contract appointee will be entitled for increase enhance scale as per instructions issued by the Department of financed to the Government of Himachal Pradesh from time to time.

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The services of the contract appointee will be purely on temporary basis . The appointment is liable to be terminated in case the performance/ conduct of the contract appointee

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is not found satisfactory. In case the contract appointee is not satisfied with the termination orders issued by the Appointing Authority, he/she may prefer an appeal before the Appellate Authority who shall be higher in rank to the Appointing Authority, with in a period of 45 days, from the date on which a copy of termination orders is delivered to him/her.

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10. An official appointed on contract basis, who have completed three years tenure at one place of posting, will be eligible for transfer on need basis wherever required on administrative grounds.”

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6(iii). The relevant extract of contractual agreement

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dated 8.6.2023 {taken on record}, which was executed by

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the petitioner after joining service, detailing the terms and conditions read as under:-

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The First party shall remain in service of the Second Party as a Pharmacy Officer for a period of one year commencing on day of 8.6.2023 and ending on the day of 7.6.2023. It is specifically mentioned and agreed upon by both the parties that the contract of the First Party with Second Party shall ipso facto stand terminated on the last working day ie. on 7.6.2023 and information notice shall not be necessary.

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Provided that for further extension /renewal of contract period on year to year basis the concerned HOD shall issue a certificate that the service and conduct of the contract appointee is satisfactory during the year and only then, his period of contract is to be renewed.

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2. …..not relevant…

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3. The services of the contract appointee will be purely on temporary basis . The appointment is liable to be terminated in case the performance /conduct of the contract appointee is not found satisfactory.

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In witness the First Party and Second Party have herein have set their hands on the day, month and the year first, written above.

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Sd/Sd/First Party Second Party Mrinal Thakur Medical Supdt, ZH Mandi (HP)

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Sd/(witnesses)

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7. CONTENTIONS OF PETITIONER AND ANALYSIS

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In the backdrop of the above factual matrix,

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this Court now proceeds to analyze the contentions of Mr. Jagdish Thakur, learned counsel for the petitioner.

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7(i). The first contention of Mr. Jagdish Thakur

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is that the impugned orders dated 7.7.2023, Annexure P-7, withdrawing the offer of appointment as Pharmacy Officer after one month of his joining/service has visited him

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with civil consequences illegally.

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7(ii). Notably, once the petitioner possessed the

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qualification of 10 + 2 with science and also possessed the Diploma in Pharmacy and also being Orthopedically

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Impaired-Handicapped was fully eligible to be considered for appointment against reserved posts of Pharmacist (Allopathy), redesignated as Pharmacy Officer, by direct recruitment through H P State Subordinate Selection Commission or by batch-wise recruitment under the Recruitment and Promotion Rules of 2017 and under the Act of 1995/Rights of Persons with Disability Act 2016 {referred to as Disability Act} and in order to give effect to the R & P Rules and the Disability Act, the Respondent no 2-Director Health Services, started the recruitment process by sending a requisition to all employment exchanges on 2.7.2021, (Annexure P-4), for filling 17 posts on batch wise basis, from persons with disabilities (PwD) when, out of these 17 backlog posts, 9 posts were reserved for Hearing Impaired Persons and 8 posts were reserved for Orthopedically Impaired/ Handicapped persons, alike the petitioner. 7(iii). In this background once the petitioner was eligible and his name was sponsored by the employment exchange and he appeared in the counselling before the four member special selection committee {in terms of Annexure R-1} on 6.9.2022 and on recommendations of

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duly constituted selection cum-counselling committee, the

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Respondent no 2-Director of Health Services, Himachal Pradesh, appointed the petitioner as Pharmacy Officer on contract basis, against the post reserved for Orthopedically Impaired-Handicapped on 7.6.2023, ( Annexure P-5), and had joined on 8.6.2023 (Annexure P-6) and had acquired a right to hold the post and continue in service for a period of one year from the date of joining on 8.6.2023 till 7.6.2024, in accordance with the mandate and spirit of the R & P Rules and the Pwd Act then, such a right cannot be abridged or curtailed/taken away by way of an administrative order which visits a person with civil consequences, resulting in termination from service

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without complying with the principles of natural justice i.e. without giving a personal hearing, without issuing a prior notice and without seeking an explanation before passing the impugned orders on 7.7.2023 (Annexure P-7), and the non-compliance of these minimum safeguards has certainly prejudiced the petitioner, resulting in his abrupt termination from service, is contrary to the mandate of Law in State of Orissa vs Dr Binapani Dei, AIR

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1967 SC 1269 ; A K Kraipak vs Union of India (1969)

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2 SCC 262; Maneka Gandhi vs Union of India (1978) 1 SCC 248; Mohinder Singh Gill vs Chief Election

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Commissioner, (1978) 1 SCC 405 ; S L Kapoor vs Jagmohan, (1980) 4 SCC 379 ; State Bank of Patiala vs S K Sharma (1996) 3 SCC 364 ; Vivekanand Sethi vs Chairman, J & K Bank, (2005) 5 SCC 337. 7(iv). Notably, while dealing with the principle of

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audi alteram partem, in the context a decision, which has prejudiced a person with civil consequences, it has been mandated by the Hon’ble Supreme Court of India, in the case of Dharampal Satyapal Limited vs Deputy

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Commissioner of Central Excise, Gauhati and Ors, (2015) 8 SCC 519, as under:

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It, thus, cannot be denied that principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms.

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28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered

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to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural jsutice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not.

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35.

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From the aforesaid discussion, it becomes clear that the opportunity to provide hearing before making any decision was considered to be a basic requirement in the Court proceeding. Later on, this principle was applied to other quasi-judicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions , where the decision

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of the authority may result in civil consequences, a hearing before taking a decision is necessary. It was, thus, observed in A.K. Kraipak's case (supra) that if the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries. In the case of Maneka Gandhi v. Union of India & Anr. also the application of principle of natural justice was extended to the administrative action of the State and its authorities. It is, thus, clear that

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before taking an action, service of notice and giving of hearing to the noticee is required. In Maharashtra State Financial Corporation v. M/s. Suvarna Board Mills, this aspect was explained in the following manner:

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“3. It has been contended before us by the learned counsel for the appellant that principles of natural justice were satisfied before taking action under Section 29, assuming that it was necessary to do so. Let it be seen whether it was so. It is well settled that natural justice cannot be placed in a straight-jacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the action as made known is contemplated. No particular form of notice is the demand of law: All will depend on facts and circumstances of the case.”

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42. So far so good. However, an important question posed by Mr. Sorabjee is as to whether it is open to the authority, which has to take a decision, to dispense with the requirement of the principles of natural justice on the ground that affording such an opportunity will not make any difference? To put it otherwise, can the administrative authority dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is contemplated? Answer has to be in

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the negative. It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. The opportunity of hearing will serve the purpose or not has to be considered at a later stage and such things cannot be presumed by the authority. This was so held by the English Court way back in the year 1943 in the case of General Medical Council v. Spackman. This Court also spoke in the same language in The Board of High School and Intermediate Education, v. Chittra Srivastava, as is apparent from the following words:

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7. The learned counsel for the appellant, Mr. C.B. Aggarwal, contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show cause notice. We are unable to accept this contention. Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed.”

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43. In view of the aforesaid enunciation of law, Mr. Sorabjee may also be right in his submission that it was not open for the authority to dispense with the requirement of principles of natural

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justice on the presumption that no prejudice is going to be caused to the appellant since judgment in R.C. Tobacco (supra) had closed all the windows for the appellant .

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7(v). Recently, while adjudicating dealing with the

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right of public employment and its continuance it has been held that the core of the right to a fair and reasonable hearing, which are basic tenements of procedural

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fairness cannot be abrogated, the Hon’ble Supreme Court of India, in Civil Appeal No 2482 of 2014, Aureliano Fernandes vs State of Goa and Others , decided on 12.5.2023 , has held as under:

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Principles of natural justice that are reflected in Article 311, are not an empty incantation. They form the very bedrock of Article 14 and any violation of these principles tantamounts to a violation of Article 14 of the Constitution. Denial of the principles of natural justice to a public servant can invalidate a decision taken on the ground that it is hit by the vice of arbitrariness and would result in depriving a public servant of equal protection of law. Article 14, often described as the ‘Constitutional Guardian’ of the principles of natural justice, expressly forbids the State, as defined in Article 12, from denying to any person, equality before the law or equal protection of the laws. Article 14 provides an express guarantee of equality before the

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law to all persons and extends a protection to them against discrimination by any law. Article 13(3)(a) defines law to include any ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India, the force of law. Thus, principles of natural justice guaranteed under Article 14, prohibit a decision-making adjudicatory authority from taking any arbitrary action, be it substantive or procedural in nature. These principles of natural justice, that are a natural law, have evolved over a period of time and been continuously refined through the process of expansive judicial interpretation.

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In the captioned case, citing the judgment of a Constitution Bench of this Court in Rustom Cavasjee Cooper v. Union of India, wherein it was held that fundamental rights are not a water tight compartment, the Court observed as under:-

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“The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or nonarbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14”

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The emphasis was on the Court‘s attempt to expand the reach and ambit of the fundamental rights guaranteed in the Constitution rather than attenuate their meaning and content by a process of judicial construction. Relying on the minority judgment rendered by Justice Fazal Ali in the case of A.K. Gopalan v. State of Madras, this Court went on to

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hold in Maneka Gandhi’s case (supra) that the procedure required to be prescribed under Article 21 must include four essentials namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. It was observed that even on principle, having regard to the impact of Article 14 on Article 21, the concept of reasonableness must be projected in the procedure contemplated by Article 21.

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In Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Others, a five-Judge Bench of this Court highlighted how essential it is to afford a reasonable opportunity to an employee to put forth his case in a domestic inquiry and the requirement of an employer to comply with the principles of natural justice and fair play, in the following words :

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“202. …It is now well settled that the ‘audi alteram partem’ rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurally.

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Rule of law posits that the power is to be exercised in a manner which is just, fair and reasonable and not in

¶188

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an unreasonable, capricious or arbitrary manner leaving room for discrimination. [emphasis added].

¶190

Thus it could be held that Article 14 read with Article 16(1) accords right to an equality or an equal treatment consistent with the principles of natural justice. Any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly, justly and reasonably. Right to fair treatment is an essential inbuilt of natural justice. Exercise of unbridled and uncanalised discretionary power impinges upon the right of the citizen ; vesting of discretion is no wrong provided it is exercised purposively judiciously and without prejudice. Wider the discretion, the greater the chances of abuse . Absolute discretion is destructive of freedom than of man's other inventions. Absolute discretion marks the beginning of the end of the liberty. The conferment of absolute power to dismiss a permanent employee is antithesis to justness or fair treatment. The exercise of discretionary power wide off the mark would breed arbitrary, unreasonable or unfair actions and would not be consistent with reason and justice. The provisions of a statute, regulations or rules that empower an employer or the management to dismiss, remove or reduce in rank of an employee, must be consistent with just, reasonable and fair procedure. It would, further, be held that right to public employment which includes right to continued public employment till the employee is superannuated as per rules or compulsorily retired or duly terminated

¶191

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in accordance with the procedure established by law is an integral part of right to livelihood which in turn is an integral facet of right to life assured by Article 21 of the Constitution . Any procedure prescribed to deprive such a right to livelihood or continued employment must be just, fair and reasonable procedure. In other words an employee in a public employment also must not be arbitrarily, unjustly and unreasonably be deprived of his/ her livelihood which is ensured in continued employment till it is terminated in accordance with just, fair and reasonable procedure. Otherwise any law or rule in violation thereof is void.”

¶193

The significant role played by procedural fairness in the backdrop of internalising the principles of natural justice into the Constitution cannot be overstated. This aspect has been highlighted by a Division Bench of this Court of which one of us, [Hima Kohli, J], was a member, in Madhyamam Broadcasting Limited v. Union of India & Others. Speaking for the Bench, Chief Justice D. Y. Chandrachud stated :

¶194

“53. The judgment of this Court in Maneka Gandhi (supra) spearheaded two doctrinal shifts on procedural fairness because of the constitutionalising of natural justice. Firstly, procedural fairness was no longer viewed merely as a means to secure a just outcome but a requirement that holds an inherent value in itself. In (2023) SCC Online 366 CIVIL APPEAL NO. 2482 of 2014 Page 25 of 59, view

¶195

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of this shift, the Courts are now precluded from solely assessing procedural infringements based on whether the procedure would have prejudiced the outcome of the case. Instead, the courts would have to decide if the procedure that was followed infringed upon the right to a fair and reasonable procedure, independent of the outcome. In compliance with this line of thought, the courts have read the principles of natural justice into an enactment to save it from being declared unconstitutional on procedural grounds. Secondly, natural justice principles breathe reasonableness into the procedure. Responding to the argument that the principles of natural justice are not static but are capable of being moulded to the circumstances, it was held that the core of natural justice guarantees a reasonable procedure which is a constitutional requirement entrenched in Articles 14, 19 and 21 . The facet of audi alterum partem encompasses the components of notice, contents of the notice, reports of inquiry, and materials that are available for perusal. While situational modifications are permissible, the rules of natural justice cannot be modified to suit the needs of the situation to such an extent that the core of the principle is abrogated because it is the core that infuses procedural reasonableness . The burden is on the applicant to prove that the procedure that was followed (or not followed) by the adjudicating authority, in effect, infringes upon the core of the right to a fair and reasonable hearing.” [emphasis supplied]

¶197

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In the context of service law, it is, therefore mandatory to afford a Government servant or an employee, a reasonable opportunity of being heard before an order is passed . In Mangilal v. State of M.P, this Court declared that even if a Statute is silent and there are no positive words in the Act or the Rules made thereunder, principles of natural justice must be observed. This is what the Court has held:

¶199

“10…. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment. (See Swadeshi Cotton Mills v. Union of India) Its aim is to secure justice or to prevent miscarriage of justice. Principles of natural justice do not supplant the law, but supplement it. These rules operate only in areas not covered by any law validly made. They are a means to an end and not an end in themselves…..”

¶200

In Tulsiram Patel’s case (supra), observing that violation of the rules of natural justice would result in arbitrariness which would amount to discrimination, the Constitution Bench made the following observations :

¶201

“95. The principles of natural justice have thus come to be recognized as being a part of the guarantee contained in

¶202

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Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14: (2004) 2 SCC 447 53 (1981) 1 SCC 664 CIVIL APPEAL NO. 2482 of 2014 Page 27 of 59 therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of State in Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially.

¶204

The rule of natural justice with which we are concerned in these appeals and writ petitions, namely, the audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter

¶205

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is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross examine them, and to lead his own evidence, both oral and documentary, in his defence. The process of a fair hearing need not, however, conform to the judicial process in a Court of law, because judicial adjudication of causes involves a number of technical rules of procedure and evidence which are unnecessary and not required for the purpose of a fair hearing within the meaning of audi alteram partem rule in a quasi-judicial or administrative inquiry. If we look at clause (2) of Article 311 in the light of what is stated above, it will be apparent that that clause is merely an express statement of the audi alteram partem rule which is implicitly made part of the guarantee contained in Article 14 as a result of the interpretation placed upon that article by recent decisions of this Court. Clause (2) of Article 311 requires that before a government servant is dismissed, removed or reduced in rank, an inquiry must be held in which he is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges…….” –

¶207

[emphasis supplied]

¶208

At the same time, a note of caution was added in the captioned case and the Court observed that the rules of natural justice are neither statutory rules nor are they

¶209

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cast in stone. They are flexible and can be adapted and modified by statutes, depending on the exigencies of different situations, the facts and circumstances of the case and the framework of the law.

¶211

In Swadeshi Cotton Mills v. Union of India, in his dissenting judgment, Justice O. Chinnappa Reddy, had made the following pertinent observations :- “106. The principles of natural justice have taken deep root in the judicial conscience of our people, nurtured by Dr. Binapani, A.K. Kraipak, Mohinder Singh Gill, Maneka Gandhi. They are now considered so fundamental as to “implicit in the concept of ordered liberty and, therefore, implicit in every decision making function, call it judicial, quasijudicial or administrative. Where authority functions under a statute and the statute provides for the observance of the principles of natural justice in particular manner, natural justice will have to be observed in that manner and in no other. No wider right than that provided by statute can be claimed nor can the right be narrowed. the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice. The implication of natural justice being presumptive it may be excluded by express words of statute or necessary intendment. Where the conflict is between the public interest and the private interest, the presumption must necessarily be weak and may, therefore, be readily displaced……”

¶212

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{emphasis supplied] 45. Thus, ordinarily, courts interpret statutory provisions in sync with the aforesaid principles of natural justice on a premise that no statutory authority would violate the fundamental rights enshrined in the Constitution. When it comes to authorities that are expected to discharge judicial and quasi-judicial functions, the rule of audi alteram partem applies with equal force. Reasonableness infuses lifeblood in procedural matters, be it elements of the notice, the contents of the notice, the scope of inquiry, the material available or an adequate opportunity to rebut such material. All of this is to avoid miscarriage of justice at any stage. This is of course fluid and subject to adapting to the demands of a situation in the given facts of a case…”

¶214

In the above backdrop and the mandate

¶215

of law, referred to above, this Court unhesitatingly interdicts

¶216

the impugned order dated 7.7.2023 (Annexure P-7), in withdrawing the offer of employment, resulting in prejudicing

¶217

the petitioner and visiting him with civil consequences, leading to his terminating from service from the post

¶218

of Pharmacy Officer, by taking away/ curtailing the right of the petitioner to continue in employment on the basis of his appointment letter dated 7..6.2023 (Annexure P-5) and the contract agreement dated 8.6.2023 executed under

¶219

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the Recruitment and Promotion Rules for a period of

¶221

one year initially till 7.6.2024, which was also subject to

¶222

extension but by giving a complete go-by to the principles of fairness, justness and non-arbitrariness, without giving

¶223

a personal hearing, without giving a notice and without

¶224

giving an opportunity before resorting to adversial action when, the petitioner was eligible under the Rules, was recommended for appointment by duly constituted selection committee, was appointed, had joined and worked then, the decision making process and the impugned orders resulting in abrupt termination of the petitioner from

¶225

service does not qualify the test of Article 14 & 16 of the Constitution of India and therefore, the action and the impugned order dated 7.7.2023 (Annexure P-7) is

¶226

quashed and set-aside.

¶227

8. The s econd contention of Mr. Jagdish Thakur,

¶228

that the impugned order dated 7.7.2023 (Annexure P-7)

¶229

amounts to terminating the petitioner from service

¶230

abruptly without any fault attributable to him is not in spirit of law.

¶231

8(i). In this context, it is relevant to note that

¶232

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the petitioner was 10 + 2 (with science) and was Diploma

¶234

in Pharmacy and belonged to Orthopedically ImpairedHandicapped category and was fully qualified and eligible for reserved post of Pharmacist (Allopathy), redesignated as Pharmacy Officer in accordance with the Recruitment and Promotion Rules of 2017 and Rights of Persons with Disability Act of 1995 and 2016 {referred to as Disability Act} then, in order to give effect to the R & P Rules and the Disability Act, the Respondent no 2-Director Health Services, started the recruitment

¶235

process by sending requisition to all employment exchanges on 2.7.2021, (Annexure P-4), for filling 17 posts on batch wise basis, from persons with disabilities (PwD) (which included 9 posts for Hearing Impaired and 8 posts for Orthopedically Impaired/Handicapped persons} and the petitioner appeared in the counselling before the four member special selection committee on 6.9.2022.

¶236

On the recommendations of the duly constituted selection cum-counselling committee; the appointed the petitioner

¶237

as Pharmacy Officer on contract basis, against the post meant for Orthopedically Impaired-Handicapped persons

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on 7.6.2023, ( Annexure P-5), and had joined on 8.6.2023

¶240

(Annexure P-6), had executed the contract on 8.6.2023 and had worked under the respondents and then, the impugned order amounts to penalizing petitioner without any fault attributable to him, which is contrary to the mandate of law laid down by the Hon’ble Supreme Court.

¶241

8(ii). While dealing with the issue as to whether the appointment could be cancelled when such an appointment was made without any fault attributable to an employee has been answered by the Hon’ble Supreme Court in

¶242

Vikas Pratap Singh vs State of Chattisgarh and Ors, AIR 2013 SC 3414 , as under;

¶243

The pristine maxim of fraus et jus nunquam cohabitant (fraud and justice never dwell together) has never lost its temper over the centuries and it continues to dwell in spirit and body of service law jurisprudence. It is settled law that no legal right in respect of appointment to a said post vests in a candidate who has obtained the employment by fraud, mischief, misrepresentation or malafide.: District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and another v. M. Tripura Sundari Devi, (1990) 3 SCC 655, P. Chengalvaraya Naidu v. Jagannath and others, (1994) 1 SCC 1

¶244

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and Union of India and others v. M. Bhaskaran, 1995 Suppl. (4) SCC 100). It is also settled law that a person appointed erroneously on a post must not reap the benefits of wrongful appointment jeopardizing the interests of the meritorious and worthy candidates. However, in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, this Court has taken a sympathetic view in the light of various factors including bonafide of the candidate in such appointment and length of service of the candidate after such appointment (See: Vinodan T. and Ors. v. University of Calicut and Ors.,(2002) 4 SCC 726; State of U.P. v. Neeraj Awasthi and Ors. (2006) 1 SCC 667).

¶246

25. Admittedly, in the instant case the error committed by the respondent-Board in the matter of evaluation of the answer scripts could not be attributed to the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their ouster upon re-evaluation and deprived them of any sympathy from this Court irrespective of their length of service.

¶247

26. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondentState for more than three years and

¶248

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undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list.

¶250

Accordingly, we direct the respondentState to appoint the appellants in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation.

¶251

8(iii). Likewise, the Hon’ble Supreme Court in Narender

¶252

Singh vs State of Haryana, (2022) 3 SCC 286 has reiterated the position of law that the cancellation of

¶253

appointment without any delay or fault attributable to an employee, as under :

¶254

20. Once it is found that there was no lapse and/or delay on the part of the appellant and /or there was no fault of the appellant in not producing the NOC at the relevant time and when it was produced immediately on receipt of the same and that too before the appointments were made and when it is found that the

¶255

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last candidate, who is appointed, i.e., respondent No. 4 herein is having less marks than the appellant and thus the appellant is a more meritorious candidate than the last candidate appointed, i.e., respondent No. 4, to deny him the appointment is not justifiable at all. He cannot be punished for no fault of him. Both, the learned Single Judge as well as the Division Bench of the High Court have committed grave error in not exercising the jurisdiction vested in it and in not directing the respondents to appoint the appellant hough he is found to be more meritorious candidate than the last candidate appointed i.e., respondent No.4.

¶257

23.

¶258

Considering the aforesaid peculiar facts and circumstances of the case and when it is found that there was no fault on the part of the respondent No.4 when he was appointed in the year 2018 and thereafter, he has been continued in service since last three years, to disturb him at this stage, would not be justifiable. Therefore, in the peculiar facts and circumstances of the case, in exercise of the powers under Article 142 of the Constitution of India, to do the substantial justice, we direct that while appointing the appellant as per the present order on the post of Assistant Professor (History), the respondent No.4 may not be disturbed and we direct the State Government to continue the respondent No.4 and he be accommodated on any other vacant post of Assistant Professor (History).

¶259

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In these circumstances and in view of the

¶261

mandate of law referred to above, this Court is of the considered view, that once the petitioner is educationally qualified and eligibility for the post of Pharmacy Officer in terms of the Recruitment and Promotion Rules and there is neither any overt act or omission on the part of the petitioner rendering him ineligible {by suppression, concealment or mischief, misrepresentation, fraud} then, the impugned order dated 7.7.2023 (Annexure P-7), resulting in terminating the petitioner from service, certainly amounts to penalizing the petitioner without any fault attributable to him and the impugned order is thus quashed and setaside.

¶262

9. The third contention of Mr. Jagdish Thakur is that once the petitioner appeared for counselling on 6.9.2022

¶263

before the four member special selection committee (as in Annexure R-1) and was recommended and appointed

¶264

then, the offer of appointment could not be withdrawn at instance of a review screening committee but without resorting to the same process which was followed by the special selection committee which recommended the

¶265

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petitioner is unstainable.

¶267

In this a reference to the impugned order dated

¶268

7.7.2023 (Annexure P-7) admits that the respondent no 2 had got the appointment reviewed by a screening committee, but the aforesaid order is silent as to

¶269

whether the review committee constituted for withdrawing the appointment was the four member selection committee which recommended the appointment or was a different committee altogether. Inabsence of any material on record, this Court refrains from answering this issue.

¶270

10. The fourth contention of Mr Jagdish Thakur is that the respondents have passed the impugned order

¶271

dated 7.7.2023 (Annexure P-7), on the ground that one Sh Vikas Kanwar, who was senior to the petitioner in

¶272

terms of batch-wise seniority based on Diploma in Pharmacy {of December 2002} was erroneously left out whereas the petitioner who was junior in batch wise seniority {of

¶273

July 2005} was appointed and in order to give appointment to senior-Vikas Kanwar, the impugned order was passed on 7.7.2023 (Annexure P-7), by ignoring material aspects.

¶274

Mr Thakur submits that the appointment of the petitioner

¶275

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¶276

could not be withdrawn, resulting in termination when, it is not the petitioner but the junior most last incumbent (namely Narinder Chatwal, who belonged to Orthopedically Impaired-Handicapped category in terms of batch-wise seniority of Diploma in Pharmacy {of April 2015 as in Annexure P-5, despite being SC candidate) was to be proceeded against and not the petitioner-senior while filling up 8 posts of Pharmacy Officers reserved for Orthopedically ImpairedHandicapped persons.

¶277

10(i). This plea of the learned counsel for the petitioner Mr. Jagdish Thakur, was sought to be countered by Mr. Rajan Kahol, Learned State counsel on the ground

¶278

that that the offer of appointment of the petitioner was withdrawn as out of 8 posts of Pharmacy Officer, the petitioner was the junior most amongst the appointees belonging to Orthopedically Impaired-UR-General candidates

¶279

was to be dispensed with and not Shri Narinder Chatwal, who despite being junior in batch wise seniority belonged to the Orthopaedically Impaired-Handicapped Schedule Caste category.

¶280

This plea of the learned state counsel is untenable for the reason, that at the time of commencement

¶281

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¶282

of selection process on 2.7.2021, (Annexure P-4), the

¶283

respondent no 2 had decided to fill up for filling 17

¶284

posts of Pharmacy Officers, out of which 9 posts were to be filled from Hearing Impaired persons and 8 posts from Orthopedically Impaired persons under the Persons with Disability Act, whereby, the respondent no 2 did not further categorize and split up 8 posts reserved for Orthopedically impaired persons for Gen-SC-ST-OBC etc. in the recruitment notice. Moreover, in addition to this, notably, once the posts reserved for the Orthopaedically Impaired Handicapped persons fall within the ambit of “Horizontal Reservation” then, the direct recruitment by giving a total of 3% reservation subject to identification

¶285

of posts by appropriate government {one percent each to the visually impaired, hearing impaired and orthopedically impaired} under the Disability Act of 1995 and 2006, has to be resorted to without earmarking any of these posts on the basis of vertical reservation for SC, ST, OBC and consequent upon their selection, these disabled persons

¶286

cut across and are to be adjusted in their respective vertical reserved category i.e. SC-ST-OBC, by applying the principle of interlocking of reservations”.

¶287

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10(ii). While dealing with the principle of law that the persons selected-appointed on the basis of Horizontal reservation {belonging to disabled category, freedom fighters, women etc} cut across vertically, on interlocking principle, and therefore these horizontally selected disabled persons are to be adjusted in towards their category under vertical reservation {SC-ST-OBC category}, in view of the mandate of law laid down by the Hon’ble Supreme Court, in the case of Indira Sawhney vs Union Of India, 1993 Supp (3) SCC 217 as under:

¶289

“We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations what is called interlocking reservations . To be more precise, suppose 3% of the vacancies are reserved in favor of physically handicapped persons, this

¶290

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¶291

would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category, if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments . Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains and should remain the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure ”.

¶292

Likewise, the above principle has been reinforced

¶293

by the Hon’ble Supreme Court, in the case of Union of India vs M Selvakumar, (2017) 3 SCC 504, and the relevant observations read as under :

¶294

22. Article 16 of the Constitution provides for equality of opportunity in matters of public employment. The State in terms of Article 16 of the Constitution provides two types of reservations i.e. a vertical or social reservation as provided for in Article 16 sub clause (4) and horizontal reservation which is referable to Article 16 sub clause (1). Special reservation in favour of physically handicapped, women etc. under Article 16(1) or 15(3) of the Constitution are the instances of horizontal reservation.

¶295

34. The Following was laid down by this

¶296

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¶297

court in para 10, 11 and 12:

¶298

“10. The State in terms of Article 16 of the Constitution of India may make two types of reservations-vertical and horizontal. Article 16(4) provides for vertical reservation; whereas Clause (1) of Article 16 provides for horizontal reservation.

¶299

11. The State adopted a policy decision for filling up the reserved posts for handicapped persons. A special drive was to be launched therefor. The circular letter was issued only for the said purpose. A bare perusal of the said Circular Letter dated 29-3-1993 would clearly show that the State had made 3% reservation for blinds and 2% for other physically handicapped persons. Such a reservation falling within Clause (1) of Article 16 of the Constitution has nothing to do with the object and purport sought to be achieved by reason of Clause (4) thereof.

¶300

12. Disability has drawn the attention of the worldwide community. India is a signatory to various international treaties and conventions. The State, therefore, took a policy decision to have horizontal reservation with a view to fulfil its constitutional object as also its commitment to the international community. A disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They constitute a special class. The advertisement, however, failed to mention in regard to the reservation for handicapped persons at the outset but, as noticed hereinbefore, the vacant

¶301

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¶302

posts were required to be filled up for two categories of candidates ; one for Scheduled Caste and Scheduled Tribe candidates and other for handicapped candidates. Handicapped candidate have not been further classified as belonging to Scheduled Castes, Scheduled Tribes and general category candidates.”

¶303

Notably, while dealing with the concept and the applicability of “Vertical Reservation” and Horizonal Reservation, the Hon’ble Supreme Court while deciding Miscellaneous Application No 2641 OF 2019 in Special Leave Petition (CIVIL) No 23223 OF 2018, titled as Saurav Yadav & Ors vs State of Uttar Pradesh & Ors, decided on 18.12.2020 has held as under:

¶304

The features of vertical reservations are:

¶305

(i) They cannot be filled by the open category, or categories of candidates other than those specified and have to be filled by candidates of the concerned social category only (SC/ST/OBC);

¶306

(ii) Mobility (‘migration’) from the reserved (specified category) to the unreserved (open category) slot is possible , based on meritorious performance;

¶307

(iii) In case of migration from reserved to open category, the vacancy in the reserved category should be filled by another person from the same specified category, lower in rank,

¶308

(iv) If the vacancies cannot be filled by the specified categories due to shortfall of candidates, the vacancies are to be ‘carried forward’ or dealt with appropriately by rules.

¶309

Horizontal reservations on the other hand, by their nature, are not inviolate

¶310

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¶311

pools or carved in stone. They are premised on their overlaps and are ‘interlocking’ reservations. As a sequel, they are to be calculated concurrently and along with the inviolate ‘vertical’ (or “social”) reservation quotas, by application of the various steps laid out with clarity in paragraph 11 of Justice Lalit’s judgement . They cannot be carried forward . The first rule that applies to filling horizontal reservation quotas is one of adjustment , i.e. examining whether on merit any of the horizontal categories are adjusted in the merit list in the open category, and then, in the quota for such horizontal category within the particular specified/social reservation.”

¶312

In the above factual backdrop and the mandate

¶313

of law referred to above, this Court is of the view that impugned order dated 7.7.2023 (Annexure P-7), withdrawing

¶314

the offer of appointment, resulting in termination of the petitioner suffers from factual and legal infirmities, for the reason, that incase Mr Vikas Kanwar who was senior

¶315

in terms of batch-wise seniority was to be appointed then also, the respondent no 2 was bound to proceed against

¶316

the junior-most incumbent {namely Narinder Chatwal as

¶317

in Para 10 (i) to (ii), who was junior in terms of the batch-wise seniority of Diploma in Pharmacy and belonged to Orthopedically Impaired-Schedule caste as disabled

¶318

are disabled and there cannot be any further reservation

¶319

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¶320

on the basis of caste, creed or religion nor on facts of this case, any such reservation was carved out in the requisition-recruitment notice, Annexure P-2}, a nd therefore, the decision making process-action and the impugned order penalizing the petitioner, by terminating him from service on “non-existent facts” and by “ignoring relevant aspects” leads to patent perversity in state action and therefore, the impugned action-order being unwarranted is accordingly quashed and set-aside.

¶321

12. The last contention of Mr. Jagdish Thakur is that the plea of the state authorities in the impugned order dated 7.7.2023 (Annexure P-7) in withdrawing the appointment of the petitioner has been passed, on the ground that no vacant post of Pharmacy Officer was available and all 8 posts meant for the Orthopedically Impaired (LI) persons for which the recruitment process commenced on 2.7.2021 and the counselling was held on 6.9.2022 were filled up, is untenable on facts and law.

¶322

12(i). The material on record, reveals that the respondent no 2 started the recruitment process on

¶323

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¶324

2.7.2021 for filling up 8 posts of Pharmacy Officers

¶325

belonging to Orthopedically Impaired-Handicapped persons and the counselling was held on 6.9.2022, and perusal of the appointment order dated 7.6.2023 (Annexure P-5) manifests that these 8 posts were ultimately filled up from 6 other incumbents who were senior in terms of batch-wise seniority of passing the Diploma in Pharmacy, and then the petitioner being next in batch-wise seniority against 7^th post and then, one Shri Narinder Chatwal was appointed being the junior most in terms of the batch-wise seniority against the 8^th post. Now after the appointment and joining of all these incumbents incase, the left out senior batch-wise incumbent i.e. the private respondent no 4-Vikas Kanwar was to be given appointed then, he was supposed to be appointed not against the petitioner but against the junior most incumbent {Narinder Chatwal}. However, while passing the impugned order on 7.7.2023, the respondent no 2 has proceeded against and has penalized the petitioner, without any fault attributable to the petitioner. In these circumstances, once the junior most incumbent {Narinder Chatwal} is

¶326

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¶327

still continuing in service, then, in order to balance the rights and equities in favour of the petitioner-senior, and without disturbing the aforesaid junior at this stage,

¶328

this Court directs the respondents to consider, adjust and appoint the petitioner as Pharmacy Officer {earlier named as Pharmacist (Allopathy}, against one of the two (2) vacant posts of Pharmacy Officers, meant for the Orthopedically Impaired-Handicapped Persons as in the communications dated 17.6.2023 (Annexure R-5), which are still vacant, on which neither any appointments have been made none has joined as yet. Moreover, in the peculiar of instant case, the action of the respondents in withdrawing the appointment and in terminating the petitioner from service without any fault attributable to him by proceeding against the petitioner, as discussed hereinabove, is vitiated by non-application of mind, is perverse and such faulty, perverse and arbitrary decision making process and the decision {as in impugned order dated 7.7.2023} cannot be permitted to aggravate illegality

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firstly, by curtailing or taking away the right acquired by the petitioner of employment and to continue in service

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under the Recruitment and Promotion Rules of 2017 for

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the post of Pharmacist {redesignated as Pharmacy Officer (Allopathy} and the Rights of Persons with Disability Act 2016, for a period on one year initially till 6.7.2024, which was subject to further extension; and secondly, depriving the petitioner of his livelihood on account of the adversial action-orders despite being fully eligible, senior and fit and nothing adverse has been pointed out during employment by ignoring these “relevant factors” cannot give leverage to the respondents to resort to and perpetuate illegality and therefore the impugned order are set-aside and directions are given to adjust and balance rights and equities in favor of the petitioner aforesaid.

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13. CONTENTIONS OF RESPONDENTS AND ANALYSIS :

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Mr. B C Verma, learned State Counsel and Mr. B S Thakur learned counsel for private respondent

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have reiterated the stand taken in reply, by defending the impugned order dated 7.7.2023 (Annexure P-7) on the plea that private respondent no 4 was inadvertently left out despite being senior in batch-wise seniority (of Diploma in Pharmacy of December 2002) vis-a-vis the petitioner and out of total 8 posts of Pharmacy

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Officer, meant for the Orthopedically Impaired-Handicapped

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persons all the posts were filled up and no post

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for this category was vacant. In these circumstances, the claim of the petitioner was repelled by the learned respondent counsels and accordingly, the writ petition was alleged to be meritless.

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13(i). The above stand of the learned state counsel

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and the learned counsel for private respondent is not tenable, in view of the discussion made in the preceding paras. A bare perusal of the impugned orders dated 7.7.2023 (Annexure P-7) as well as the appointment orders dated 7.6.2023 (Annexure P-5) manifests that the decision making process and the action of the respondent no 2 in withdrawing the appointment and in terminating the petitioner from service despite being fully eligible under the Recruitment and Promotion Rules and the Rights of Persons with Disability Act 2016, despite being senior in terms of batch-wise seniority and once neither any misrepresentation, concealment

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or suppression or fraud was attributable to the petitioner

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in any manner then, the erroneous decision making

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process, by dispensing with the services of the petitionersenior while retaining the junior till day, amounts to victimizing the petitioner for the fault of the state authorities, and without any fault of the petitioner, Accordingly, the decision making process and the

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impugned action-orders dated 7.7.2023 (Annexure P-7) cannot sustain on facts as well as law. 13(ii). The learned state counsel has made an attempt to defend its action on the plea that the

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CWP No 4327 of 2021, titled as Manisha Kumari vs State as mentioned in impugned orders dated 7.7.2023 (Annexure P-7) is still pending. This plea cannot come to the rescue of the state authorities when, the Manisha

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Kumari, aforesaid, belonged to Visually Impaired category, for which neither any recruitment was initiated in the year 2001 (present recruitment process} nor was the category of visually impaired identified for recruitment under the Disability Act 2016 for the post of Pharmacy Officer.

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13(iii). The plea of the learned state counsel that

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one post of Pharmacy officer belonging to Orthopedically

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Impaired (LI) was kept vacant for one Sh Kavi Raj Raghav. This plea of the state authorities is without any force when, the Respondents have found Sh

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Kavi Raj Raghav as ineligible for the post. Against this, aforesaid Sh Kavi Raj had filed a writ petition, CWP No 3386 of 2023, which was withdrawn by him on 31.5.2023.

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13(iv). Moreover, once the petitioner stood appointed and had joined then, the appointment could not have been terminated, by withdrawing the offer of appointment

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in violation of Rule 15-A (VII) (b) of the Recruitment and Promotion Rules and in violation of Condition no 7

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of the appointment letter and in violation of Condition

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no 3 of the contract agreement dated 8.7.2023, whereby,

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the termination of an employee could only be resorted to in case the performance/conduct of the contract appointee

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is not found satisfactory, when, nothing adverse regarding

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the work and conduct existed or was conveyed during the period of service to the petitioner till passing of the impugned orders.

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In these circumstances, once the entire decision

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making process to oust the petitioner was erroneous on facts as well in law and the same suffers from perversity, legal maladies and was arbitrary as detailed her-in-above then, the decision making process and the impugned action-order which does not conforms to

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the mandate in the Rules, the Act and Article 14 and Article 16 of the Constitution of India cannot be permitted to operate to the prejudice of the petitioner and therefore, the same is quashed and set-aside.

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14. Consequent upon nullification of the impugned

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action and impugned orders dated 7.7.2023 (Annexure P-7),

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passed by the Respondent no 2 and the resultant orders dated 7.7.2023 (Annexure P-8) passed by Respondent No 3 as aforesaid, this Court directs the respondents to reinstate

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the petitioner in service with all consequential benefits i.e. continuity in service, pay fixation except past monetary

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benefits, from the date of passing of impugned order dated 7.7.2023. The benefits of reinstatement be accorded to the petitioner above the junior (Narinder Chatwal, as in appointment orders dated 7.6.2023, Annexure P-5), without disturbing the aforesaid junior taking into account

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the service rendered by him as on day ; by adjusting the rights and equities either against the vacant post meant for Orthopedically Impaired category (LI) as in the communication dated 17.6.2023 (Annexure R-5) or any other vacant post meant for such reserved category or any other vacant post expeditiously and not later than 29^th February 2024.

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15. CONCLUSION AND DIRECTIONS

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In view of the discussion made hereinabove, the instant writ petition is allowed, in the following

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terms:-

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(i). The Impugned action-order dated 7.7.2023 (Annexure P-7), passed by Respondent no 2, and resultant orders dated 7.7.2023 (Annexure P-8) passed by the Respondent no 3, in abruptly withdrawing the offer of appointment of the petitioner, after joining and rendering service, is quashed and setaside.

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(ii) Respondents are directed to reinstate the petitioner in service with all consequential benefits, in terms of directions contained in Para 14, supra, expeditiously but not later than 29^th February, 2024.

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