Partly allowed

Nitika Prashar and others v. State of Hp and others

Himachal Pradesh HC8 Nov 2024CWPOA/1481/2019

Case brief

AI extract

What is this about?

The Court dismissed the petition against four petitioners for concealing previous dismissed applications before the Tribunal and a disposed writ petition. For the remaining petitioners, the Court allowed the petition, holding that contract appointments were invalid when the applicable rules lacked such provision, and directed regularisation with benefits.

What did the court decide?

Regularization and consequential benefits for three years preceding the filing of the petition for eligible petitioners.

Nitika Prashar and others Vs State of Hp and… — Service and Employment | Himachal Pradesh HC (2024)

¶1

¶2

2024:HHC:10911

¶3

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶4

CWPOA No. : 1481 of 2019 Reserved on : 15.10.2024 Decided on : 08.11.2024

¶5

Nitika Prashar & Ors.

¶6

...Petitioners

¶7

Versus

¶8

State of Himachal Pradesh & Anr.

¶9

…Respondents

¶10

Coram

¶11

The Hon’ble Mr. Justice Virender Singh, Judge.

¶12

Whether approved for reporting?

¶13

For the petitioners :	Mr. Adv	Karan ocate	Singh	Parmar,
For the respondents:	Mr. Adv	Rohit ocate Ge	Sharma, neral.	Deputy

¶14

Virender Singh, Judge

¶15

Petitioners have invoked the extraordinary writ

¶16

jurisdiction of this Court, under Article 226 of the Constitution of India, by way of filing Civil Writ Petition, which was initially registered as CWP No.6396 of 2013, seeking the following relief:-

¶17

“i) That the rejection letter dated 18^th February, 2013 may kindly be quashed and set aside and the respondent may very kindly be directed to grant all service benefits to the petitioners from the date of their initial appointment with all consequential benefits.”

¶18

¶19

2024:HHC:10911

¶20

Thereafter, the State Government had

¶21

established the Himachal Pradesh State Administrative Tribunal (hereinafter referred to as the ‘Tribunal’), under the provisions of the Administrative Tribunals Act, 1985 (hereinafter referred to as the ‘Act’) and the said case was transferred to the Tribunal and registered as T.A. No.1992 of 2015.

¶22

After the abolition of the Tribunal, the said matter was again transferred to this Court and thereafter, registered as CWPOA No.1481 of 2019.

¶23

The abovementioned relief has been sought, by the petitioners, on the ground that the respondentDepartment, on 30.09.2001, had advertised 81 posts of Pharmacists.

¶24

4.1. According to the petitioners, the posts of Pharmacists were earlier governed by the Recruitment and Promotion Rules (hereinafter referred to as the ‘R&P Rules’), framed by the State of Himachal Pradesh, in the year 1973. However, the said R&P Rules were repealed, vide Notification dated 12.09.2001. The posts of Pharmacists are stated to be non-selection Class-III posts and mode of recruitment, as per Rule 10 of R&P Rules, is 50% by way of direct recruitment, through the concerned

¶25

¶26

2024:HHC:10911

¶27

recruitment agency and 50% on batch-wise basis, on Department basis.

¶28

4.2. It is the case of the petitioners that according to Rule 15 of R&P Rules, the posts were to be filled up through selection, either from Public Service Commission or from any Recruitment Board. As per Rule 7 of R&P Rules, following educational qualification is required for the post of Pharmacist:-

¶29

“i. 10+2 in Science or its equivalent from any recognized University/Board.

¶30

ii. Bachelor Degree in Pharmacy/Diploma in Pharmacy or its equivalent from any recognized University or recognized institution by the Central or State Government.

¶31

iii. Candidate should be registered from Pharmacy Council of the concerned Government/Central Government.”

¶32

4.3. It is the further case of the petitioners that

¶33

State of Himachal Pradesh, while making the recruitment to Class-III posts, has identified the recruitment agency, as, Himachal Pradesh Subordinate Service Selection Board, Hamirpur.

¶34

4.4. It is the further case of the petitioners that in response to the advertisement, dated 30.09.2001, the petitioners, by considering them to be qualified, had applied for the posts, in question, and they were called for interview on 26.07.2002. Thereafter, they were

¶35

¶36

2024:HHC:10911

¶37

recommended for appointment to the posts of Pharmacists and were appointed as such. However, the appointment was made on contract basis. The petitioners had raised their grievances to appoint them on regular basis and to grant them other service benefits, but, to their utter dismay, their services were regularized w.e.f. 09.01.2012.

¶38

4.5. It is the further case of the petitioners that thereafter, they made the representations to the competent authority regarding granting them consequential benefits, from the date of their initial appointment, by treating them as on regular basis, from the date, when they joined. However, their representations were rejected. In this regard, the petitioners have relied upon the communication dated 18.02.2013. The act/omission of the respondents to appoint them on regular basis, from the date of their initial appointment, is stated to be violative of Articles 14 and 16 of the Constitution of India.

¶39

4.6. In addition to this, it is their further case that the act/omission of the respondents is also violative of the executive instructions (Annexure P-10).

¶40

4.7. It has also been pleaded that one of the petitioners namely Sh. Naresh Kumar had filed OA No.2666 of 2003, before the Tribunal.

¶41

¶42

2024:HHC:10911

¶43

On the basis of above facts, a prayer has been made to allow the petition, by granting the relief, as prayed for.

¶44

When put to notice, the petition has been contested/controverted, by the respondents, by way of filing reply.

¶45

6.1. In the reply, the respondents have taken the preliminary objections that the petitioners have concealed the material facts from the scrutiny of the Court, as, they have earlier filed OAs No.2307 of 2005, 551 of 2005, 554 of 2005, 2666 of 2003, 1509 of 2005, 2044 of 2005 and 1804 of 2005, with a prayer to treat their appointment as regular appointment, from the date of their initial appointment on contract basis. However, the aforementioned OAs were dismissed, by the Tribunal, vide separate orders dated 15.09.2006, 09.03.2011 and 23.05.2011.

¶46

6.2. The above facts have been highlighted by the respondents to show that the present petition is bad by applying the principle of res judicata .

¶47

6.3. It has also been pleaded that some of the petitioners had preferred CWP No.4692 of 2013, on 12.06.2013, for granting them the benefits of revised pay scales, after revision of pay scales w.e.f. 01.01.2006.

¶48

¶49

2024:HHC:10911

¶50

However, the said petition was disposed of, by this Court, on 12.07.2013, by giving the liberty to the petitioners to file a representation, before the appropriate authority, with further directions to the respondents to consider their requests on merit, in accordance with law.

¶51

6.4. It is the specific case of the respondents that the petitioners have concealed the material fact, regarding filing of CWP No.4692 of 2013. Their claim, with regard to treating their appointment on regular basis, from the initial date of their appointment, is stated to be against the policy of the Government. It has further been pleaded that the advertisement, dated 30.09.2001, was issued by Himachal Pradesh Subordinate Services Selection Board, Hamirpur and in the advertisement, it has specifically been mentioned that posts, so advertised, are to be filled on contract basis, at fixed remuneration and against that advertisement, the petitioners have applied and accepted the appointment letter.

¶52

6.5. All these facts have been highlighted to prove that on account of their acceptance of the appointment letters, petitioners are not entitled for the relief, as claimed. However, it has been admitted that the provision of appointment on contract basis has specifically been

¶53

¶54

2024:HHC:10911

¶55

inserted in the existing R&P Rules, in the year 2008, by issuing the notification dated 14.08.2008.

¶56

On the basis of above facts, a prayer has been made to dismiss the petition.

¶57

Petitioners have filed the rejoinder to the reply, filed by the respondents, denying preliminary objections by pleading that the order dated 15.09.2006, passed in the writ petition, filed by one Dharminder Singh, cannot operate as res judicata . According to them, the order of the Tribunal was not on the same issue, which has been raised by the petitioners, in the present case.

¶58

While replying to preliminary objection No.3, they have taken the plea that the petition, filed by the petitioners, had not been rejected by the Court, but, the liberty was given to the petitioners to file petition, in case, there is no consideration of their case, by the respondents.

¶59

Rest of the contents of the reply, by virtue of which, their prayer has been contested, have been denied.

¶60

The petitioners are seeking the relief, under Article 226 of the Constitution of India, which is discretionary in nature and for seeking the relief, petitioners were bound to mention all the material facts. They should not approach the Court with soil hands to

¶61

¶62

2024:HHC:10911

¶63

pollute the stream of the administration of justice. Petitioners, in para No.12 of their petition, have simply mentioned that except OA No.2666 of 2003, no other case has been filed, by them. Para No.12 of the petition is reproduced, as under:-

¶64

“ 12 . That the petitioners have not filed any other petition on the same and similar grounds in this Hon’ble Court or in any other Court of law in India including Supreme Court of India. However, one Shri Naresh Kumar had filed OA No.2666/03 before the Ld. Administrative Tribunal.”

¶65

The respondents, in the preliminary objections,

¶66

have taken the specific stand that the petitioners have filed OAs No.2307 of 2005, 551 of 2005, 554 of 2005, 2666 of 2003, 1509 of 2005, 2044 of 2005 and 1804 of 2005, which, according to them, have been dismissed by the Tribunal.

¶67

In order to substantiate their stand, they have annexed the copy of the order dated 15.09.2006, passed by the Tribunal in OA No.551 of 2005, filed by Sh. Dharmender Kumar (petitioner No.3). The relevant portion of the order, passed by the Tribunal, is reproduced, as under:-

¶68

“In view of this position no vested legal right of the applicant has been shown to have been infringed, the relief as prayed for by the applicant cannot be granted. No instructions, rules,

¶69

¶70

2024:HHC:10911

¶71

Regulations or Policy have been shown to this Tribunal under which the applicant is claiming her right of regularization. The fact remains that there was a clear cut stipulation in the advertisement that the post being filled up are on contract basis. The applicant was very much in the knowledge of this fact. In the light of above legal position and the factual matrix we find no merit in this Original Application and as such same is liable to be dismissed and is accordingly dismissed with no order as to costs. Original Application stands finally disposed of. However, respondents are directed not to dispense with the service of the applicant except in accordance with law.”

¶72

(emphasis supplied)

¶73

Similarly, petitioner No.5-Minakshi had filed OA

¶74

No.554 of 2005, petitioner No.7-Naresh Vashishta had filed OA No.2666 of 2003, petitioner No.9-Gurpal Singh had filed OA No.2044 of 2005, petitioner No.10-Pooja had filed CWP(T) No.12089 of 2008.

¶75

The respondents have also annexed the copy of the judgment dated 12.07.2013, passed by this Court, in CWP No.4692 of 2013, which was filed by 25 Pharmacists, including petitioner No.1-Nitika Prashar and petitioner No.11-Suman Lata. Paragraphs 1 to 3 of the said judgment are reproduced, as under:-

¶76

“1. Learned counsel for the petitioners, on instructions, does not press the present petition and submits that petitioners shall approach the respondents clearly bringing out the circumstances under which their case is covered by the decision rendered by this Court in LPA No. 105 of 2010, titled as State of H.P. and others versus Rakesh Chand

¶77

¶78

2024:HHC:10911

¶79

and others, along with connected matters decided on 13th December, 2012.

¶80

2. Leaving the questions of law open, it is open for the petitioners to approach the respondents, as prayed for. As and when such request, if any, is received by the appropriate authority, the same shall be considered on its merits, in accordance with law, within a period of eight weeks, by affording adequate opportunity of hearing/representation to the petitioners. Needless to add, the authorities shall pass reasoned order, which shall be communicated to all concerned.

¶81

3. With the aforesaid observations, the present petition stands disposed of as not pressed.”

¶82

The petitioners in the said writ petition had not

¶83

pressed the writ petition and sought liberty to approach the respondents.

¶84

Hence, in the considered opinion of this Court, the above-named petitioners i.e. petitioners No. 5, 7, 9 and 10, have filed the instant writ petition, by concealing the fact, from the scrutiny of the Court and have made an attempt to pollute the stream of administration of justice.

¶85

The concealment of material fact has been held to be the abuse of the process of the Court, by the Hon’ble Supreme Court in ‘ K.D. Sharma Vs. Steel Authority of India Limited and Others ’, reported in (2008) 12 SCC 481 . Relevant paragraph 39 of the said judgment is reproduced, as under:-

¶86

¶87

2024:HHC:10911

¶88

“ 39 . If the primary object as highlighted in Kensington Income Tax Commissioners, (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA) is kept in mind, an applicant who does not come with candid facts and clean breast' cannot hold a writ of the Court with soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court.”

¶89

(self-emphasis supplied)

¶90

In case ‘ Moti Lal Songara Vs. Prem Prakash @Pappu and Another’ , reported in (2013) 9 SCC 199 , the Hon’ble Supreme Court has held that anyone, who takes recourse to method of suppression in a Court of law, is not entitled for any relief. Relevant paragraphs 19 and 20 of the said judgment are reproduced, as under:-

¶91

“ 19 . The second limb of the submission is whether in the obtaining factual matrix, the order passed by the High Court discharging the accused- respondent is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial Judge, yet he did not bring the same to the notice of the revisional court hearing the revision against the order taking cognizance. It is a clear case of

¶92

¶93

2024:HHC:10911

¶94

suppression. It was within the special knowledge of the accused. Any one who takes recourse to method of suppression in a court of law, is, in actuality, playing fraud with the court, and the maxim supressio veri, expression faisi, i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the revisional court. It can be stated with certitude that the accused-respondent tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to playpossum.

¶95

20 . The High Court, as we have seen, applied the principle “when infrastructure collapses, the superstructure is bound to collapse”. However, as the order has been obtained by practising fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand.”

¶96

(self-emphasis supplied)

¶97

The growing tendency of the litigants to seek relief, on the basis of concealment of facts, has heavily been dealt with, by the Hon’ble Supreme Court, in ‘ Dalip

¶98

Singh v. State of Uttar Pradesh and Others’ , reported in

¶99

(2010) 2 SCC 114 . Relevant paragraphs 1 and 2 of the said judgment are reproduced, as under:-

¶100

“ 1 . For many centuries, Indian society cherished two basic values of life i.e., Satya' (truth) and Ahinsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen

¶101

¶102

2024:HHC:10911

¶103

drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

¶104

2 . In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”

¶105

In view of the discussions, made hereinabove,

¶106

the present petition, qua petitioners No. 5, 7, 9 and 10, is ordered to be dismissed.

¶107

So far as petitioners No.1 to 4, 6, 8 and 11 are concerned, they had applied in response to the advertisement, which was issued on 30.09.2001 and R&P Rules were admittedly amended by the respondents on 14.08.2008, by inserting the provisions of contractual appointment. When, there was no such provision, with regard to the appointment on contract basis, in the R&P Rules, then, the respondents, by simply mentioning the appointment on contract basis, in the advertisement, cannot deny the relief to the above-mentioned petitioners.

¶108

¶109

2024:HHC:10911

¶110

Relevant paragraph 9 of the preliminary objections of the reply, filed by respondents No.1 and 2, is reproduced, as under:-

¶111

“9. That it is submitted that the plea advanced by the petitioners on the basis of R&P Rules, Annexure P-2 and P-3, are not sustainable in support of their inadmissible claim for treating their appointment on regular appointment right since very beginning. It is submitted that the R&P Rules notified in the year 2001 were further amended in the year 2008 vide Notification dated 14-8-2008 whereby the provision of contractual appointments was specifically inserted in the existing R&P Rules. The attested photocopy of the notification dated 14-8-2008 is placed on record as Annexure R-2/III for kind perusal of this Hon’ble Court. Hence, the claim so advanced is not at all sustainable in the eye of law as also in the light of facts on record.”

¶112

From the above stand, taken by the

¶113

respondents, this Court is of the view that at the relevant time of issuance of advertisement notice, in the R&P Rules, which were in force, there was no provision for appointment on contract basis and as such, the

¶114

act/omission of the respondents to appoint the petitioners on contract basis is not sustainable in the eyes of law.

¶115

Consequently, the present petition, qua petitioners No. 1 to 4, 6, 8 and 11, is allowed, with costs, which are assessed at Rs.5,000/- each, directing the respondents to extend the benefit of regular appointments to the above petitioners, with effect from the date of their

¶116

¶117

2024:HHC:10911

¶118

initial appointment/joining on contract basis, along with all consequential benefits. However, the monetary benefits are confined to three years, immediately, preceding the date of filing of the petition.

¶119

It is further directed that the outstanding amount, if any, is ordered to be released in favour of the above-mentioned petitioners, within a period of two months, from the date of passing of this order, failing which, the respondents shall be liable to pay the said amount, along with interest @9% per annum, from the date of their entitlement i.e. 3 years, preceding the date of filing the petition, till its realization.

¶120

Pending miscellaneous application(s), if any, shall also stand disposed of.

¶121

(Virender Singh) Judge

¶122

November 08, 2024

¶123

Gaurav Thakur

Nitika Prashar and others v. State of Hp and others

Case brief

What is this about?

What did the court decide?

Nitika Prashar and others v. State of Hp and others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Devender Habbi and Others Vs State of Hp and Others

State of Hp and Another Vs Dc Chandel

Rakesh Kumar Vs State of Hp and Others

Hitesh Gandhi Vs Ed

Rajesh Kumar Vs State of H.P

Arvind Rajta Vs Directorate of Enforcement