Rajinder Kuimar Vs State of Hp

For the petitioners:	Mr. Mukul Sood, Advocate.
For the respondents:	Mr. Amit Kumar Chaudhary, Deputy Advocate Generals, for respondents
	No.1 and 2.
	Mr. Vikrant Thakur, Advocate, for respondent No.3-HPPSC.

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Jiya Lal Bhardwaj, Judge (Oral)

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The petitioners, feeling aggrieved by the inaction

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on the part of the respondents, in not admitting/considering

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them in the batch of 2012-2013 SAS Course, have approached

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this Court praying therein that their seniority as Section

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OfÏcers SAS (OB) be considered for the batch of 2012-2013, as

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

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per their merits at appropriate places.

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The petitioners, having not been selected for undergoing training in SAS (Part-I) during the sessions 20112012, had approached this Court by way of CWP No.4305 of 2012-A , titled, Rajender Kumar & Anr. vs. State of H.P. & Ors (Annexure A/1). This Court had allowed the said petition on 22.11.2012 after considering the entire matter and came to the conclusion that the private respondents in the petition i.e.

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respondents Nos.6 & 7, who have scored more marks than the candidate from General Category, were required to be considered as General Category candidates and the resultant seats were to be filled up from the candidates belonging to

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Scheduled Caste Category, to which the petitioners belong. This Court had not quashed the selection of the private respondents, since they had completed the SAS (Part-I) Course, but the submission made by learned counsel for respondent No.3-Commission that the petitioners cannot be permitted to be admitted to SAS (Part-I) Course, was not

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accepted, holding that the petitioners have been illegally denied admission to the said course and thus directions were issued to the respondents to admit the petitioners in 20122013 SAS (Part-I) Course. The entire emphasis in the petition is that once this Court had given directions to the respondents to admit the petitioners in 2012-2013 SAS (Part-I) Course, even if they have been admitted in the batch of 20132014, they ought to have been considered as part of the batch of 2012-2013.

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It has been averred that respondents No.1 & 2 had ignored the specific directions and made the petitioners wait for the batch of 2013-2014, which action is totally contrary to the directions given by this Court inasmuch as the petitioners have been made to suffer, in the matter of seniority, as well as to financial loss, as such, they are entitled to be provided with seniority among the candidates of the batch of 2012-2013.

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Respondents No.1 & 2 filed reply to the petition

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and averred that the initial selection in the cadre of SAS is made in accordance with the competitive SAS (OB) and examination was conducted by respondent No.3. After selection as SAS candidate through merit drawn on the basis of entrance examination, such candidates are required to undergo SAS (Part-I & II) training at Himachal Pradesh Institute of Public Administration Fairlawn, Shimla in two parts for a period of 5 months each. The seniority of the SAS candidate is determined on the basis of successful completion of Part-I & Part-II training and marks obtained in SAS Part-I & Part-II examination conducted by respondent No.3. Respondent No.3-Commission had conveyed about the selection of petitioners, vide their letter dated 20.12.2012, received in the department on 24.12.2012. At the time of communication to the petitioners to be selected for SAS training, the first part of SAS training of the selected candidates in the session 2012-13 had already been completed on 20.09.2012 and thus, it was not possible to

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admit them in SAS Part-II training, because it is mandatory to

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pass SAS (Part-I) examination before entry into SAS (Part-II) training.

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The respondents have placed reliance upon the provision of Rule 9(a)(vi) of the Himachal Pradesh Subordinate Accounts Services (OB) Training and Examination Rules 2011. As per this rule, unless a candidate qualifies SAS(OB) Part-I examination, he shall not be eligible to be admitted for Part-II and, therefore, the petitioners were admitted for SAS (Part-I) training along with immediate next batch started for the session 2013-2014.

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Respondent No.3 filed reply to the petition and averred that the Commission had already recommended the names of both the petitioners for undergoing training of SAS (OB) Part-I, as evident from perusal of letter dated 11.02.2013 (Annexure A-3), vide letter dated 20.12.2012.

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The petitioners filed rejoinder to the reply filed by respondents No.1 & 2 and controverted the averments made

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in the reply.

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I have heard the learned counsel for the parties

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and also perused the records carefully.

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It is not in dispute that when the petitioners were

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not selected for undergoing training in SAS (Part-I), they had approached this Court by filing CWP No.4305 of 2012-A , titled, Rajender Kumar and another versus State of Himachal Pradesh and others. The said petition was allowed on 22.11.2012. Despite, the opposition made by learned counsel for respondent No.3-Commission that since the session 20112012 is over , this Court had rejected the said submission by holding that the petitioners have been illegally denied their admission to SAS (Part-I) Course and accordingly directed the respondents to admit the petitioners in 2012-2013 SAS (Part-I) course. The relevant paras of the judgment read as under:

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“4. In normal circumstances, we would have quashed the selection of respondents No.4 and 5, but, since they have completed the SAS (PartI) Course, we have decided not to quash their selection at this belated stage.

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5. Mr. D.K. Khanna submits that since Session 2011-2012 is over, the petitioners cannot be permitted to be admitted to SAS (Part-I) Course. This plea cannot be accepted. The petitioners have been illegally denied their admission to SAS (Part-I) Course.

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6. Accordingly, the writ petition is allowed. Respondents No.1 to 3 are directed to admit the petitioners in 2012-2013 SAS (Part-I) Course. Pending application(s), if any, also stands disposed of.”

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A perusal of the directions reveals that the

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respondents were directed to admit the petitioners in 20122013 in SAS (Part-I) Course. The plea now being taken by respondents No.1 & 2 in the reply that the said course was completed as on 20.09.2012, cannot be countenanced, for the simple reason that the respondents had to comply with the directions contained in the judgment and cannot sit over the same.

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Respondents No.1 and 2 feeling aggrieved by the directions given by this Court to consider the petitioners for training in the batch of 2012-13 had filed the review petition, which was dismissed on 16.09.2013, as pointed by the

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learned counsel for the petitioners.

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Once, this Court had given the directions to the

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respondents to admit the petitioners in 2012-2013 SAS (Part-I) course, the plea taken by the respondents that the SAS (PartI) Course was completed on 20.09.2012, cannot be accepted

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and in case, the said submission is allowed to be accepted and the petitioners are treated for the batch of 2013-2014, it would virtually amount to sitting over the directions given by

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this Court in CWP No.4305 of 2012-A, on 22.11.2012. If the

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Part-I Course was over on 20.09.2012, why this fact was not brought to the notice of this Court on 22.11.2012, when the petition was allowed. Though, the Court had directed the respondents to admit the petitioners in 2012-13 SAS (Part-II) Course, but if the previous paragraph of the judgment is seen, the Court had rejected the submissions made by respondent No.3-Commission, that the petitioners cannot be

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permitted to be admitted to SAS (Part-I) Course. The petitioners had been illegally denied their admission, thus,

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this Court had cautiously directed the respondents to admit

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them in 2012-2013 SAS (Part-I) course.

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No doubt, the petitioners have been admitted for

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the said course for the session 2013-2014, but they cannot be denied the seniority from the batch of 2012-2013 and in case it is permitted, it will amount to virtually sitting over the judgment and the directions passed by this Court would be

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rendered nugatory.

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The plea taken by respondents No.1 & 2 that as

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per the provisions of Rule 9(a)(vi) of the HP Subordinate Accounts Services (OB) Training and Examination Rules, 2011, that unless a candidate qualify SAS (OB) Part-I examination will not be eligible to be admitted for SAS (Part-II) training and examinations, cannot be applied in the case of the petitioners, especially when this Court had given specific directions to the respondents to admit them in 2012-2013 SAS (Part-I) Course and as already noticed above, the review petition preferred by the respondents was rejected on

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16.09.2013. Thus, keeping in view, the directions given by this

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Court coupled with the fact that the petitioners were though eligible to be imparted the training for the sessions 20112012, the action on the part of the respondents to consider them for the batch of 2013-2014 is totally illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.

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It is settled law that the seniority has to be

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assigned from the date of completion of course, but in the present case, once the petitioners had approached this Court and this Court had given specific directions to admit them in 2012-2013 SAS (Part-I) Course, the plea taken by the respondents that since they had completed the course in 2013-2014, they are entitled to be assigned the batch of 20132014 cannot be countenanced in view of the specific directions given by this Court. It is not the case of the respondents that the directions issued by this Court have been altered by the Apex Court, which could have done so.

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Learned counsel for the petitioners has argued

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that in similar circumstances, the Division Bench of this Court

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in CWP No.3371 of 2019 , titled, Robin Singh Mehta & Ors. Vs.

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State of H.P. & Ors . along with connected petitions, after considering the judgment of the Hon’ble Supreme Court had held that the person is entitled to notional seniority from the date when similar situate persons have been appointed. The relevant paras of the judgment read as under:

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“14. It is more than settled that if a candidate has been wrongly excluded from the process of the appointment on account of illegal and arbitrary action on behalf of the State, then he is entitled to notional seniority from the date, the similarly situated persons have been appointed. Reference in this regard can conveniently be made to a recent judgment of the Hon'ble Supreme Court in C. Jayachandran vs. State of Kerala and ors., (2020) 5 SCC 230 , wherein it was observed as under:

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35. The earlier writ petition filed by the appellant was allowed on 13th September, 2010. The Division Bench of the High Court has directed to recast the seniority amongst the seven shortlisted candidates. The appellant was one of them. The challenge to the said order by three affected candidates remained unsuccessful when SLP was dismissed by this Court on 8^th October, 2010. The SLP was filed by the candidates who were granted benefit of moderation of marks. Once the direction of the Division Bench has attained finality, the appellant was entitled to seniority as per the select list to be revised as per merit of the candidates. In terms of Rule 6(2), the

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seniority is to be determined by the serial order in which the name appeared in the appointment order. The argument of learned counsel appearing for respondent No. 5 that the appellant was not appointed by the same appointment order, therefore, the appellant cannot claim seniority is not tenable. The appellant was entitled to be appointed along with other three candidates but because of the action of the High Court in adopting moderation of marks, the appellant was excluded from appointment. The exclusion of appellant from appointment was on account of an illegal act by the High Court which has been so found by the judgment dated 13^th September, 2010. Since the select list has to be revised, the appellant would be deemed to be the part of the appointment along with other candidates in the same select list. As the actual date of appointment was on 24th February, 2011, the appellant cannot actually be treated to be appointed on 30^th March, 2009 but is entitled to notional appointment from that date and consequential seniority.

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

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“16. For the foregoing reasons the appeal is allowed. The judgment under appeal is set aside. It is directed that the appellant shall be deemed to have been appointed along with other appointees under the appointment order dated 6-3-1995 and assigned a place of seniority consistently with his placement in the order of merit in the select list prepared by J&K PSC and later forwarded to the Law Department...” 37. In Lakshmana Rao Yadavalli, this Court held as under:

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“13. For the reasons recorded in Lakshmana Rao Yadavalli v. State of A.P., the present appeals are

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

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

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16. Accordingly, the claims of the petitioners in first category are allowed and consequently, these petitioners are held entitled for grant of seniority from the date when respondents No. 7 and 8 Beli Ram and Yogita Chauhan were appointed i.e. 15.12.2018.”

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Once the Division Bench of this Court in similar

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facts has already held that the candidate, who was wrongly

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excluded from the process of appointment on account of

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illegal and arbitrary action on the part of the State, is entitled

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to notional seniority from the date, similarly situate persons

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have been appointed, this Court is bound to follow the said

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judgment and as such held that the action on the part of the

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respondents to consider the petitioners for the batch of 2013-

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2014 is illegal, arbitrary and unconstitutional.

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Consequently, the present petition is allowed and

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the respondents are directed to consider the petitioners for the batch of 2012-2013 and to fix their seniority with all consequential benefits among the candidates of the batch of 2012-2013. However, it is made clear that they may be assigned seniority below the last candidate of the batch of 2012-2013. In case the consequential benefits of arrears and promotion are not given to the petitioners within three months from today, the respondents shall pay interest on the

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arrears @6% per annum from today till actual payment. The petition is accordingly disposed of. Pending application(s), if

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any, shall also stands disposed of.

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06th May, 2026 ( Jiya Lal Bhardwaj )

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(ankit)

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Judge

Rajinder Kuimar v. State of Hp

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Rajinder Kuimar v. State of Hp

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