Manoj Joshi vs State of H.P. and Others

Justice Kurian Joseph, C.J.—The appellant is the 4th respondent in CWP No. 1817 of 2008 decided on 4.8.2011. The issue raised in the writ petition pertains to the question of selection to HAS in the year 2008. The 4th respondent/appellant was selected in the general category. But this Court in the judgment, referred to above, held that it was the writ petitioner, who was entitled to succeed. Though belonging to ST, the writ petitioner was more meritorious than the 4th respondent. Hence, the appointment of the 4th respondent/appellant was set aside. However, liberty was reserved to the State in the judgment to create a special post for the 4th respondent in view of the peculiar circumstances of the case since the 4th respondent had already joined duty as HAS in the year 2008. When the matter was taken up on 29th September, 2011, this Court passed the following order:

Learned counsel for the appellant submits that the appellant has been selected for the post of Dy.S.P. and he is to join shortly. We find in the judgment that there is a direction to explore the possibility of creation of a supernumerary post, in view of the fact that the appellant had worked for about three years. It is only a question of few days and hence, it is only appropriate that the Government looks into this aspect of the matter also. There will be a direction to the respondent-State to see whether the appellant can be accommodated in terms of the observations made by the learned Single Judge and as referred to by us in this order. Short reply in that regard shall be filed on or before 12th October, 2011. till such time, the appellant shall not be terminated from service and the implementation of the judgment shall be deferred. In that view of the matter, no notice need be issued to the private respondent at this stage.

Learned Deputy Advocate General has made available a communication dated 22.11.2011 from the Financial Commissioner-cum-Principal Secretary (Revenue) to the Government of Himachal Pradesh, which is taken on record, wherein it is stated that the appellant/4th respondent has been selected for appointment as HPS in the examination conducted in the year 2009 and has been duly relieved to be appointed in HPS, on 12.10.2011. The communication reads as follows:

I am directed to refer to your letter No. LPA 401/2011-35632 dated 20/21-10-2011 on the subjected cited above and to say that Shri Ashwani Kumar & others who filed a CWP 1817/08 in the Hon''ble High Court praying therein to quash the final selection/appointment of respondent No. 4 i.e. Shri Manoj Joshi, have not been recommended by HP Public Service Commission against the quota of General category who have applied as S.T. candidate. However, they have secured more marks as compared to the candidate who was recommended by the H.P. Public Service who belongs to General category. The Hon''ble High Court passed an order in the CWP 1817/2008 that selection of respondent No. 4 i.e. Shri Manoj Kumar may be set aside. In the meantime, Shri Manoj Kumar was selected as HPS through HAS exam, 2009 and accepted offer of HPS who was relieved on 12.10.2011 to join his new assignment. There is no question to terminate the services of Shri Manoj Joshi who ceases to be member of Tehsildar services.

In view of above, there is also no need to file the reply to the aforesaid LPA which has already become infructuous. You are, therefore, requested that the Hon''ble High Court may be apprised of the position accordingly.

Since the State has taken the stand that no further reply is required, apparently, it is to be presumed that the State has no objection in having the supernumerary post created for the appellant/4th respondent during the period he had actually worked between 2008 to 2011. Therefore, this appeal is disposed of making it clear that the appellant/4th respondent shall be deemed to have duly worked against the post of Tehsildar between 2008 till he was relieved for taking appointment under HPS on 12.10.2011. It is made clear that the above relief is granted to the appellant only to avoid break in service and for counting the period between 2008 to 2011 as qualifying service for the purpose of pension only.

The appeal is disposed of, so also the pending applications, if any.