Nisha Devi vs State Of Himachal Pradesh And Others

Jyotsna Rewal Dua, J

Petitioner is aggrieved against the decision of respondent No.3-University in not declaring the result of selection process conducted by it, for the post of Computer programmer.

Facts

2(i) Respondent No.3-University issued an advertisement on 8.2.2017 for filling up various posts including one post of Computer Programmer on contract basis. Written examination for this post was held on 7.5.2017. Petitioner appeared and qualified the same. She was called for and accordingly appeared in the interview for the post on 4.10.2017.

2(ii) Result of some of the posts advertised in the notice dated 8.2.2017 was declared. However, result of the post in question for which the petitioner had participated in the selection process was not declared. Through her representation dated 24.12.2018, petitioner requested the University to declare the final selection result for the post in question. In response thereof, the University vide its communication dated 29.12.2018, refused to take any action on the ground that the Government of Himachal Pradesh vide letter dated 27.12.2017 had stopped the recruitment process to various categories of services or posts, which are out of purview of Himachal Pradesh Public Service Commission Shimla (HPPSC) and Himachal Pradesh Staff Selection Commission, Hamirpur (HPSSC). Petitioner again requested the respondent-university on 22.3.2019 for declaring the result of the post of Computer Programmer. The University in its communication dated 6.4.2019 reiterated its inability to declare the result in view of stopping of recruitment process in general by the State Government vide letter dated 27.12.2017.

It was also stated therein that for proceedings ahead with the recruitment process, now the concurrence of State Government was required. The permission sought by the University in this regard had been denied by the State Government on 4.6.2018. Petitioner was also informed that subsequently the Executive Council of the University on 22.01.2019 had resolved to re- advertise all such posts for which written screening/test had not been conducted or personal interview was not completed or posts were not filled upon.

In the above backdrop, the petitioner has preferred the instant writ petition, praying for following reliefs:-

"A. That the acts and omissions on the part of the respondents not to declare the result of the applicant may kindly be condemned and declared illegal and unjust and against the law.

B. That the impugned letter No.Per (AP.B)B(15)-6/2012 dated 27.12.2017 of respondent No.1 may kindly be quashed and set aside being illegal and issued only with intent and colour of political interests/considerations.

C. That the resolution No.27 dated 22.01.2019 or re-advertisement and impugned notice dated:02.03.2019 issued for notifying decision of E.C. for re-advertisement issued by respondent No.2 may kindly be quashed and set aside.

D. That the respondents may kindly be directed to declare the result of the applicant for the post of the programmer.

E. That respondents may kindly be directed to offer appointment to the applicant, if, on declaration of the result she is declared qualified and found eligible."

Contentions

3(i) The respondent-University in its reply has admitted issuance of advertisement on 8.2.2017 for various non-teaching posts including that of Computer Programmer and completing the selection process for the post of Computer Programmer on 4.10.2017, wherein petitioner also participated. According to the reply, Model Code of Conduct for Himachal Pradesh legislative Assembly Elections 2017 was enforced vide notification dated 12.10.2017, therefore, the recruitment process could not be finalized for the post in question.

3(ii) On 27.12.2017, Government of Himachal Pradesh stopped recruitment process to various categories of services or posts which were out of purview of HPPSC & HPSSC.

3(iii) Respondent-University on 4.6.2018 sought State Government's approval to fill up the post of Computer Programmer of which only the final result was left to be declared. However, the State Government in its response dated 13.6.2018 observed that the proposal of the respondent-University sent vide communication dated 4.6.2018 was not in-consonance with the letter dated 5.2.2018 of the Personnel Department. Because of this response of the State Government dated 13.6.2018, the recruitment process could not be finalized by the University in a time bound manner. Since in terms of the resolutions dated 16.5.1981 & 19.5.1981 passed by the Executive Council of the University, the recruitment process had to be completed within one year and having failed to conclude the selection process for the post in time, therefore, the Executive Council of the University on 2.01.2019 resolved to re-advertise the post in question.

Observations

We have heard learned counsel for the parties. We have also interacted with the Registrar of the respondent - University. What emerges from the pleadings & contentions of the parties can be summarized as under:-

(i) The selection process was undertaken by the respondent-University for one post of Computer Programmer under advertisement dated 8.2.2017. Petitioner participated in the selection process. She qualified the written test and accordingly appeared in the interview on 4.10.2017.

(ii) On 12.10.2017, Model Code of Conduct was enforced in view of general elections to H.P. Legislative Assembly. For this stated reason, respondent No.3-University did not finalize the recruitment process for the post in question.

(iii) On 27.12.2017, respondent-State through its Personnel Department issued a letter stopping the recruitment process for the posts beyond the purview of HPPSC & HPSSC. It will be appropriate to reproduce the contents of this letter :-

"I am directed to invite your attention to the subject cited above and to say that it has been decided by the State Government that the recruitment to various categories of services or posts, which are out of purview of the H.P. Public Service Commission and Himachal Pradesh Staff Selection Commission, Hamirpur be stopped forthwith. It is requested that the recruitment process of such services/posts may be stopped accordingly and the complete details of the same may be intimated to this department within two days without fail.

These instructions shall also be applicable to all Boards, Corporations and Autonomous Bodies. Recruitment process for filling up essential functional posts in the Medical Colleges may, however, continue."

(iv) On 4.6.2018, the respondent - University sought permission from the State Government for concluding the selection process for the post in question. The State Government through respondent No.1-Education Department in its response dated 13.6.2018 observed that the proposal of the University was not as per letter dated 5.2.2018 of the Department of Personnel. The University was requested to re-examine the matter and send the proposal as per the letter of Department of Personnel, to enable the State to proceed in the matter. Letter dated 13.6.2018 reads as under:-

" I am directed to refer to your letter No.1-3/2013 HPU (Rectt.)-Misc-III-165, dated 04.6.2018 on the subject cited above and to say that the matter was examined and it was observed that the proposal is not as per letter No. Per(AP.B)B(15)-6/2012, dated 5th Feb, 2018 of Department of Personnel.

You are therefore, requested to re-examine the matter and send proposal as per letter of Department of Personnel, so that further necessary action in the matter could be taken accordingly."

(v) It will also be appropriate at this stage to extract the contents of letter dated 5.2.2018 on the format, of which respondent No.1 had directed the University to re-send the proposal:-

"I am directed to invite your attention to this department letter of even number dated 27.12.2017 on the subject cited above and to say that after examining the issues at thread bare, it has been decided by the State

Government to allow recruitment process, as per prescribed procedure out of purview of the H.P. Public Service Commission and Himachal Pradesh Staff Selection Commission, Hamirpur, for recruitment to various posts to be filled up:

On compassionate grounds,

against 3% sportspersons quota

from amongst the specially abled persons,

on batchwise basis as per specific method provided in the respective recruitment rules, and

posts reserved for Ex-servicemen.

In all other cases, the respective Administrative Departments will take decision on the ongoing recruitment processes after examining all the aspects and after obtaining approval of Hon'ble Chief Minister, H.P. at their level.

The instructions issued by this department vide letter dated 27.12.2017 may be treated as amended to the above extent.

These instructions shall also be applicable to all Boards, Corporations, Government Universities and Autonomous Bodies etc. These instructions can also be seen on website www.himachal.nic.in/personnel."

It is admitted by respondent No.3-University that no proposal as per letter dated 5.2.2018 as was directed by respondent No.1 in its letter dated 13.6.2018 was ever sent by it. Instead of concluding the selection process already undertaken by it under the advertisement dated 8.2.2017 by sending the proposal in terms of letters dated 5.2.2018 and 13.6.2018, the Executive Council of the University on 21.2.2019 resolved to hold fresh selection process. Supplementary affidavit filed by respondents No.1 & 2 pursuant to the order passed by this Court on 11.8.2020 states that instruction contained in the letter dated 27.2.2017 stood amended in terms of letter dated 5.2.2018 whereby the State Government had decided to allow the recruitment process as per the prescribed procedure even for the posts out of the purview of HPPSC & HPSSC Hamirpur in cases viz;- on compassionate grounds, 3% sports-persons quota, from amongst the specially abled persons, on batch-wise basis as per specific method provided in the respective R&P Rules and for Ex-Servicemen. It is also stated in the supplementary affidavit that in all other cases, respective administrative departments were allowed to take decisions on the ongoing recruitment process after examining all aspects and after obtaining approval of the Hon'ble Chief Minister at their level.

The contents of letter dated 5.2.2018 have already been re-produced above. It is the stand of respondents No.1 & 2 that subsequent to the letter dated 13.6.2018, whereby respondent No.3-University was requested by them to re-examine the matter and re-send the proposal in terms of letter dated 5.2.2018, no further correspondence was received by them in this regard from respondent No.3-University.

Though the respondent-University would like this court to believe that it went all the way for declaring the result for the post in question, but the State Government did not approve University's request dated 4.6.2018 in view of the ban on finalization of recruitment imposed vide Government's letter dated 27.12.2017, but the facts are otherwise. The Government never rejected the proposal of respondent No.3 in respect of the post in question. In fact respondent No.3 never sent the proposal in terms of State Government letters dated 13.6.2018 read with 5.2.2018. We fail to understand the reason as to why respondent No.3-University did not re-send the proposal and requested the State for concluding the selection process already undertaken by it for the post in question under advertisement dated 8.2.2017. Respondent No.3 had sought clarifications from respondents No.1 & 2 for filling up the post of non-teaching staff advertised by it on 8.2.2017, vide letter dated 4.6.2018. It is not that the request or the clarification of respondent No.3-University was turned down by the State. Respondents No.1 & 2 on 13.6.2018 had only directed respondent No.3 to re-examine the matter and to submit the proposal again in terms of letter dated 5.2.2018. Respondent No.3-University did not correspond with the State thereafter. Having already incurred expenditure and dent on the Government exchequer in initiating the selection process whereunder the various candidates including the petitioner had participated, it was expected from the respondent-University to make earnest efforts for concluding the selection process by declaring the result of the same and in order to do so, send the proposal in that regard as directed by respondent No.1 in terms of respondent No's 2 letter dated 5.2.2018. It is evident that respondent No.3 failed to discharge its obligations & responsibilities and has resorted to play blame game affecting the participating candidates.

It is settled law that even after completion of selection process, the candidates even on merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. (Refer 2020(2) SCC 528 titled Mohd. Rashid Vs Director, Local Bodies, New Secretariat & other, 1991 (3) SCC 47 titled Shankarsan Dash Vs. Union of India, 1974 (3) SCC 220 titled the State of Haryana Vs. Subash Chander Marwaha and others).

However in the instance case, there were no allegations of bungling, malpractices, favoritism or nepotism in the selection process. Advertisement for the post in question had not been withdrawn by respondent No.3. Respondents No.1 & 2 had not refused to grant approval to respondent No.3 for declaring the result of selection process undertaken for the post in question. They had only directed respondent No.3 to re-send the proposal in tune and on the format of letters issued by the State. Instead of resending the proposal in proper format, University decided to re-advertise the post, causing hardship to participating candidates besides wasting public time and money. No explanation whatsoever has been offered by the respondent University for not re-sending the proposal to the State for concluding the selection process initiated by it, of which only the final result was left to be declared .

For the foregoing reasons, in the given facts & circumstances of the case, we find merit in this writ petition and the same is accordingly allowed. We direct respondent No.3-University to re-send its proposal to respondents No.1 & 2 for declaring the result of the selection process for the post in question advertised on 8.2.2017, within a period of two weeks alongwith reasons and justifications for filling up the post, in terms of respondents No.1 & 2's letters dated 13.6.2018 & 5.2.2018. We hope and trust that the Competent Authority while taking appropriate decision will also keep in view the time, energy, money & efforts of candidates already spent in the recruitment process. Interim order dated 17.7.2020 shall continue to operate till the final decision is taken in the matter. Pending miscellaneous application(s), if any, shall also stand disposed of.