Allowed

Noram Chand v. State of Hp

Himachal Pradesh HC3 Oct 2023CWPOA/4384/2020

Case brief

AI extract

What is this about?

The High Court allowed a petitioner's petition regarding incorrect disqualification for police recruitment due to alleged measurement errors. While a committee later recommended his recruitment, the court held that a fresh appointment order issued on a notional basis was illegal. The court directed the respondent to regularize the appointment on an actual basis with consequential benefits on a spe

What did the court decide?

Petitioner granted entitlement to back wages from 25.6.2018 on an actual basis, with no requirement for Finance Department approval, and interest at 6% per annum for delay.

Noram Chand Vs State of Hp — Pension and Retirement Benefits | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWPOA No.4384/2020 Date of Decision: 3^rdOctober, 2023.
Noram Chand .....Petitioner. Versus
State of H.P & ors. …..Respondents.
Coram The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?¹
For the Petitioner: Mr. Ashwani Sharma, Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General with Ms. Seema Sharma, Dy. Advocate General.
Vivek Singh Thakur, Judge(oral).

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By way of present petition, petitioner has approached this

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Court seeking directions to the respondents to grant him marks, according to his height, claiming that he was more than 5 feet and 7 inches, but less than to 5 feet and 8 inches.

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Admittedly, petitioner had participated in the process of recruitment of Police Constable in the year 2015, wherein his height was measured as 5 feet and 7 inches. However, similar selection process undertaken in 2018, he was declared to having height 5 feet and 6 ½ inches, therefore, he was not selected, whereupon he filed an Original Application No.2762 of 2018, wherein vide order dated 27.7.2018, after considering the aforesaid facts, Director General of Police Himachal Pradesh, was directed to make an arrangement for ascertaining the actual height of the petitioner by a Medical Board to be constituted at Indira Gandhi Medical College and Hospital, Shimla, as expeditiously as possible.

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

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Matter remained pending before the Tribunal till abolishment of

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Erstwhile H.P. State Administrative Tribunal, thereafter it was transferred to this Court and registered as present petition bearing CWPOA No.4384/2020.

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It is also pertinent to record that in subsequent selection process, height of the petitioner was assessed as more than 5 feet and 7 inches, accordingly mark was awarded to him and he was found eligible

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to be appointed and accordingly selected as Constable in December, 2019.

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5. In the High Court, this petition was taken up for consideration

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on 9.11.2022, on which date, following order was passed:-

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“The erstwhile Tribunal vide its order dated 18.5.2018 had passed an interim order directing the respondents to keep one post of Constable in the category of OBC Unreserved in District Kullu, against which the petitioner had been laying claim. Thereafter, vide order dated 27.7.2018, respondent No.2, i.e. Director General of Police, Himachal Pradesh, was directed to arrange for constitution of Medical Board.

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The Board so constituted had given its opinion that the height of the petitioner is 174.32 centimetres, i.e. more than 5 feets and 8 inches. Even we are of the view that the petitioner should be given one mark, as claimed for.

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Confronted with this, learned Deputy Advocate General prays for and is granted two weeks’ time to seek instructions.”

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6. On 23.11.2022, following order was passed:-

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“Learned Law Officer has placed on record instructions dated 21.11.2022. To say the least, these instructions nowhere touch upon the observations as made by this Court in its order dated 9.11.2022.

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That apart, we really fail to understand as to how the respondents seek to justify the stand in light of the fact that the petitioner has subsequently been selected and is now working as a Constable, as is borne out from the instructions placed before us.

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The only issue in this petition is regarding the actual height of the petitioner and if he has been found eligible in the subsequent selection, we really fail to understand and rather not in a position to comprehend that the petitioner may have simply grown over night. As is evident from the affidavit filed by the petitioner, his age was 22 years at the time of filing of the petition and by that time even as per the scientific standards, he would have ceased to grow. Thus, it is a clear cut case where the respondents have illegally denied the appointment to the petitioner in the

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selection process of 2018. Therefore, in such circumstances, let the respondents come up with clear cut instructions on or before the next date of hearing.

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In sequel to order dated 23.11.2022, a meeting of the Committee consisting of Deputy Inspector General of Police, Northern Range, Dharamshala, Superintendent of Police, Kullu and Commandant 3^rd Batallion, Pandoh, was held on 20.12.2022. After taking into consideration entire facts and circumstances, the Committee had opined as under:-

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“ In view of the above facts, the committee unanimously recommends that Mr. Noram Chand is found fit for the selection on the post of Constable in the year 2018. Further, the committee is of the opinion that as the petitioner is already serving in Police Department since 2019 as Constable and is presently posted at 3^rd IRBn Pandoh, District Mandi, the seniority of the petitioner may be considered against the year 2018. The committee hereby recommends the Police Headquarters to take up the above matter of Mr. Noram Chand with the Govt. of H.P, for further necessary action.”

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In aforesaid facts and circumstances of the case, in order to rectify their mistake, a fresh appointment order dated 10.1.2023 was issued in favour of the petitioner considering him appointed with effect from 25.6.2018, but extending him monetary benefits on notional basis only, whereupon on 4.8.2023, following order was passed by this Court:-

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“Learned Additional Advocate General has placed on record the appointment order dated 10.01.2023, along with other documents, issued in favour of petitioner considering him appointed w.e.f. 25.6.2018 but on notional basis as petitioner has not actually served upon the post from the said date but has served on actual basis only w.e.f. 21.12.2019.

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In present case, during selection process completed in the year 2018, candidature of petitioner was rejected by declaring that he is not having the requisite height for appointment as Constable in the Police Department but in subsequent selection process, his height was found to be appropriate for his recruitment as Constable and thus his rejection in previous selection was wrong and thus he is entitled for benefits of service like other appointees of previous selection process.

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Now respondents have claimed that they have rectified their mistake by issuing fresh appointment order dated 10.01.2023 in favour of petitioner considering his appointment w.e.f. 25.6.2018 but extending monetary benefits on notional basis.

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It is apt to record that petitioner was prevented from joining the duty in the year 2018 on account of omission and commission of Officers/official of the State/Police Department, whereas he was ready and willing to join the service on 25.6.2018. Therefore, it is apparent that appointment of petitioner on notional basis is contrary to the settled law of the land propounded in Union of India vs. K.V. Janaki-Raman reported in (1991)4 SCC 109.

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Faced with aforesaid situation, learned Additional Advocate General seeks adjournment to have current instructions in the matter especially in response to aforesaid observations.

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Two weeks’ time is granted with direction to respondents/concerned authority to pass an appropriate order rectifying the mistake to avoid any adverse order.”

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Today, learned Deputy Advocate General has placed on record instructions dated 19^th September, 2023, received from the Director General of Police, Himachal Pradesh alongwith communication dated 13.9.2023, sent from DIG/Wel./ & Admin, Director General of Police to the Commandant, 3^rd India Reserve Battalion, Pandoh, District Mandi, whereby it has been communicated as under:-

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“In this regard, it is respectfully submitted that in compliance to the aforesaid order dated 04.08.2023 passed by the Hon’ble High Court of H.P the matter has been examined in the office of replying respondent and the Home Department Govt. of H.P. It has been decided to issue a fresh appointment order in favour of the petitioner considering his appointment w.e.f. 25.06.2018 on actual basis in supersession of previous appointment orders. Accordingly, a direction was issued to the Commandant 3^rd India Reserve Battalion, Pandoh, District Mandi, H.P vide letter dated 13.09.2023 (Annexure R-1) for taking further necessary action as per the order dated 04.08.2023 by issuing a fresh appointment order in respect of petitioner to the post of Constable and after that the matter may be referred to the Finance Department Govt. of H.P through Home Department for their approval and concurrence for financial implication i.e. back wages.”

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As recorded in order dated 4.8.2023, petitioner was prevented from joining the duty on 25.6.2018 on account of omission and commission of Officers/Official to the post of Police Constable,

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whereas he was ready and willing to join the service. Therefore, petitioner, in terms of ratio of law propounded in Union of India vs.

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K.V. Janaki Raman, reported in (1991) 4 SCC 109, referred (supra)

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shall be entitled for back wages from initial date of appointment i.e. 25.6.2018 and disbursement of the said wages shall not be subject to any approval and concurrence by any other authority including the Finance Department. However, in case Rule of Business requires some formality before passing formal order, then such process shall be completed in the light of observations made hereinabove expeditiously preferably within one month and appropriate order granting him back wages in aforesaid terms from initial date of appointment i.e. 25.6.2018 alongwith all consequential benefits on actual basis shall be issued on or before 30^th November, 2023 and arrear shall be paid on or before 30^th December, 2023 , failing which petitioner shall be entitled for interest at the rate of 6 % per annum on arrear from the date of accrual till final payment and in that eventuality interest shall be recovered from the Incharge of Department responsible for causing delay.

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Petition is allowed and disposed of in aforesaid terms.

Noram Chand v. State of Hp

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Noram Chand v. State of Hp

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