IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. …

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.IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No. 3366/2020

Reserved on: 12.7.2021

Decided on : 20.7.2021

Varun Dhiman …..Petitioner

VersusState of H.P. & ors. ….Respondents

Coram:

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.The Hon’ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1 Yes

For the Petitioner: Mr. Sanjay Jaswal, Advocate.

For the Respondents: Mr. Ajay Vaidya, Sr. Addl. A.G. for respondents No.1 and 2. Mr. Sanjeev Kumar Motta, Advocate, for respondent No.3. (Video Conferencing)_____________________________________________________________________

Justice Tarlok Singh Chauhan, Judge

The instant petition has been filed for grant of the

following substantive relief:

“that the writ in the nature of mandamus may kindly be

issued, thereby directing the respondent No.2 to requisition

the name of the petitioner being Sr. No. 6 in the merit wise

waiting panel prepared for the post of Lab Assistant

(Allopathy) against OBC (UR) category (Annexure P/4) and

respondent No.3 also be directed to sponsor his name for

1 Whether reporters of the local papers may be allowed to see the judgment? Yes.

::: Downloaded on - 12/01/2022 10:28:21 :::CIS

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the said post as the post is lying vacant after nonjoining of

the Serial No.5 candidate of waiting panel against the said

post, with further direction to respondent No.2 to appoint

the petitioner against the post of Lab Assistant (Allopathy)

on contract basis, OBC (UR) Post Code 654.”

2 On 4.9.2017, respondent No.2, i.e. Director, Health &

Family Welfare sent a requisition to respondent No.3, Himachal

Pradesh Staff Selection Commission,Hamirpur, for filling up of

vacant posts of Laboratory Assistant. Pursuant to such

requisition, respondent No.3 recommended 102 candidates, who

eventually were offered appointment on 21.6.2019. However, out

of these 102 candidates, 22 candidates did not join and

consequently, their appointment orders were ordered to be

withdrawn by the Department vide letter dated 20.9.2019. On

20.9.2019 itself, respondent No.3 was requested to recommend

names of 22 candidates from waiting panel. Respondent No.3, in

turn, vide its communication dated 26.10.2019 recommended

names of 22 candidates, who were offered appointment vide letter

dated 23.11.2019.

3 However, out of these 22 candidates, three candidates

again did not join their duties and respondent No.3 on

14.7.2020 was again requested to sponsor names of eligible


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candidates from the waiting panel. This time, the request of

respondent No.2 was turned down by respondent No.3 by

invoking Rules of Business & Procedure of the Commission,

which clearly provide for life of the waiting panel to be valid upto

one year from the date of recommendations in case of nonjoining

of earlier recommended candidates.

4 Since reply(ies) of the respondents was conspicuously

silent as to what transpired from 23.11.2019, when 22

candidates had been offered appointment and out of which 3

candidates had not joined, uptill 5.8.2020, when respondent No.3

informed respondent No.2 that no further appointment could be

made in view of life of waiting panel, we directed the respondents

to produce before us records of the case.

5 We were shocked to note that the officials of

respondent No.2 did not even bother to deal with files during this

period even though 3 candidates out of 22 candidates as

aforesaid had not joined. Meaning thereby, that on account of

sheer negligence of the officials/officers of respondent No.2,

appointment has been denied to 3 persons from waiting list.

6 It was more than four decades back that the Hon’ble

Supreme Court had observed that “it must, therefore, be taken to


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be the law that where the Government is dealing with the public,

whether by way of giving jobs or entering into contracts or

issuing quotas or licences or granting other forms of largesses,

the Government cannot act arbitrarily at its sweet will and, like a

private individual, deal with any person it pleases, but its action

must be in conformity with standard or norm which is not

arbitrary, irrational or irrelevant. The power or discretion of the

Government in the matter of grant of largesses including award

of jobs, contracts quotas, licences etc., must be confined and

structured by rational, relevant and nondiscriminatory standard

or norm and if the government departs from such standard or

norm in any particular case or cases, the action of the

Government would be liable to be struck down, unless it can be

shown by the Government that the departure was not arbitrary,

but was based on some valid principle which in itself was not

irrational, unreasonable or discriminatory (Refer: Erusian

Equipment and Chemicals Ltd. vs. State of West Bengal, AIR

1975 SC 26).

7 The instant case depicts sordid, despotic and nepotic

functioning of respondent No.2 where despite there being 3


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vacancies, it took no steps to fill up the same from the waiting

list.

8 No doubt, a candidate in the waiting list has no

indefeasible right to be appointed because notification merely

amounts to an invitation to qualified candidates to apply for

recruitment and on their selection they do not acquire any right

to the post. It is also settled that unless the relevant recruitment

rules so indicate, the State is under no legal duty to fill up all or

any of the vacancies. However, that does not mean that the State

has the licence of acting in an arbitrary manner and there has to

be a conscious decision not to fill up the vacancies, which has to

be taken bona fide for appropriate reasons.

9 In Miss Neelima Shangla v. State of Haryana and

Others, (1986) 4 SCC 268, the Hon'ble Supreme Court observed

that it is always open to the Government not to fill up all the

vacancies for a valid reason, but the selection cannot arbitrarily

be restricted to a few candidates, notwithstanding the number of

vacancies and the availability of qualified candidates.

10 The ratio laid down in this judgment was affirmed by

Constitution Bench of the Hon'ble Supreme Court in

Shankarsan Dash vs. Union of India, 1991 (3) SCC 47, wherein


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it was held that if a number of vacancies are notified for

appointment and adequate number of candidates are found fit,

still the successful candidates acquire an indefeasible right to be

appointed. According to the Hon'ble Supreme Court, notification

merely amounts to an invitation to qualified candidates to apply

for recruitment and on their selection they do not acquire any

right to the post. Unless the relevant recruitment rules so

indicate, the State is under no legal duty to fill up all or any of

the vacancies. However, the Hon'ble Supreme Court also stated

that it does not mean that the State has the licence of acting in

an arbitrary manner and the decision not to fill up the vacancies

has to be taken bona fide for appropriate reasons. It was

declared that if the vacancies or any of them are filled up, the

State is bound to respect the comparative merit of the

candidates, as reflected at the recruitment test, and no

discrimination can be permitted.

11 In Mrs. Asha Kaul vs. State of Jammu and

Kashmir, 1993 SCC (2) 573, the Hon'ble Supreme Court again

reiterated that mere inclusion in the select list does not confer

upon the candidates included therein an indefeasible right to

appointment. The Hon'ble Supreme Court also stated that there


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is obligation of the Government to act fairly and the whole

exercise cannot be reduced to a mere farce. It was further

observed that having sent a requisition/request to the Public

Service Commission to select a particular number of candidates

for a particular category in pursuance of which the commission

issues a notification, holds a written test, conducts

interviews, prepares a select list and then communicates to

the Government, the Government cannot quietly and without

good and valid reasons nullify the whole exercise and tell the

candidates when they complain that they have no legal right to

appointment.

12 In view of the aforesaid exposition of law, it can

legitimately be concluded that even though the selected

candidate has no vested right in the qualifying examination for

getting appointed against the posts advertised/notified, yet the

State cannot withdraw the seats arbitrarily without there being

any bona fide or appropriate reasons and the selection cannot

arbitrarily be restricted to a few candidates, notwithstanding the

number of vacancies and the availability of qualified candidates.

13 Discussion in this regard would be incomplete in case

we do not take note of the recent judgment of the Hon'ble


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Supreme Court in Dinesh Kumar Kashyap and ors. Vs. South

East Central Railway and ors. (2019) 12 SCC 798.

14 In this case the facts were respondent No.1, South

East Central Railway (for short the SECR) issued an

advertisement on 15.12.2010 inviting applications for filling up

5798 posts in the pay scale of Rs.5200Rs. 20,200 + Grade Pay

of Rs.1800/ in Raipur, Bilaspur and Nagpur divisions and

workshops. The claim of the original writ petitioners who filed

applications before the Central Administrative Tribunal (for short

CAT) was that as per the existing instructions the select list was

prepared with 20% extra candidates. Therefore, the result of

6995 candidates was declared who were successful. The

appellants fell in the category of extra 20%. The SECR did not

make the appointments from these 20% extra candidates though

624 posts remained unfilled in the general category itself. The

appellants who fell in the 20% category of extra candidates filed

applications before the CAT praying that the SECR be directed to

fill in the unfilled vacancies from this list of 20% candidates. This

application was rejected by the Tribunal. Allowing the appeal, the

Hon'ble Supreme Court observed as under:


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5. The main issue which arises before us is whether the

SECR could have ignored the 20% extra panel despite the

letter dated 02.07.2008 without giving any cogent reason

for the same. No doubt, it is true, that mere selection does

not give any vested right to the selected candidate to be

appointed. At the same time when a large number of posts

are lying vacant and selection process has been followed

then the employer must satisfy the court as to why it did

not resort to and appoint the selected candidates, even if

they are from the replacement panel. Just because

discretion is vested in the authority, it does not mean that

this discretion can be exercised arbitrarily. No doubt, it is

not incumbent upon the employer to fill all the posts but it

must give reasons and satisfy the court that it had some

grounds for not appointing the candidates who found place

in the replacement panel. In this behalf we may make

reference to the judgment of this Court in R.S. Mittal vs.

Union of India (UOI)1, wherein it was held as follows: 1

(1995) Suppl.2 SCC 230

10. .....It is no doubt correct that a person on theselect panel has no vested right to be appointed tothe post for which he has been selected. He has aright to be considered for appointment. But at thesame time, the appointing authority cannot ignore theselectpanel or decline to make the appointment on itswhims. When a person has been selected by theSelection Board and there is a vacancy which can beoffered to him, keeping in view his merit position,then, ordinarily, there is no justification to ignore himfor appointment. There has to be a justifiable reasonto decline to appoint a person who is on the selectpanel. In the present case, there has been a mereinaction on the part of the Government. No reason


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whatsoever, not to talk of a justifiable reason, wasgiven as to why the appointments were not offered tothe candidates expeditiously and in accordance withlaw. The appointment should have been offered to Mr.Murgod within a reasonable time of availability of thevacancy and thereafter to the next candidate. TheCentral Government's approach in this case waswholly unjustified.

6. Our country is governed by the rule of law. Arbitrariness

is an anathema to the rule of law. When an employer

invites applications for filling up a large number of posts, a

large number of unemployed youth apply for the same.

They spend time in filling the form and pay the

application fees. Thereafter, they spend time to prepare for

the examination. They spend time and money to travel to

the place where written test is held. If they qualify the

written test they have to again travel to appear for the

interview and medical examination etc. Those who are

successful and declared to be passed have a reasonable

expectation that they will be appointed. No doubt, as

pointed out above, this is not a vested right. However, the

State must give some justifiable, nonarbitrary reason for

not filling up the post. When the employer is the State it is

bound to act according to Article 14 of the Constitution. It

cannot without any rhyme or reason decide not to fill up the

post. It must give some plausible reason for not filling up

the posts. The courts would normally not question the

justification but the justification must be reasonable and

should not be an arbitrary, capricious or whimsical exercise

of discretion vested in the State. It is in the light of these

principles that we need to examine the contentions of the

SECR.


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15 Judged in light of the aforesaid exposition of law, the

respondentState has failed to spell out any cogent and

convincing reasons as to why no steps were taken to fill up 3

posts from the waiting list.

16 The officials of respondent No.2 being the government

officials are not free to act like an ordinary individual, in dealing

with the public appointment, as they cannot act arbitrarily at

their own sweet will, rather their action must be in conformity

with some standard or norm which are not arbitrary, irrational or

irrelevant.

17 The action of the respondents must not be arbitrary

or capricious, but must be based on some principle which meets

the test of reason and relevance. After all, it is the principle of

reasonableness and nonarbitrariness in governmental action

that lies on the core of entire constitutional scheme and

structure.

18 The concept of reasonableness and nonarbitrariness

pervades the entire constitutional spectrum and is a golden

thread which runs through the whole fabric of the Constitution.

Thus, Article 14 read with Article 16(1) of the Constitution


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accords right to an equality or an equal treatment consistent with

principles of natural justice. Therefore, any law made or action

taken by the employer, corporate statutory or instrumentality

under Article 12 must act fairly and reasonably. Right to fair

treatment is an essential inbuilt of natural justice.

19 As observed earlier, it is highly regrettable that the

officials/officers of respondent No. 2 have been completely

oblivious to the fact that the office entrusted to them is sacred

and was meant for use and not for abuse.

20 The officials/officers of respondent No. 2 cannot act

as despots or monarchs and are obliged to act in accordance with

the principles of democracy, equity, equality and solidarity.

21 The entire scenario shocks the conscious of this Court

to come across such inaction committed by those who are at the

helm of affairs of respondent No. 2.

22. To say the least, respondent No.2 which is a ‘State’

within the meaning of Article 12 of the Constitution of India has

conducted in itself of untrustworthiness and like a belligerent

litigant has dragged the petitioner to an unnecessary and

otherwise avoidable litigation. Instead of gracefully accepting its

mistake, respondent No.2 could not resist the temptation of


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litigation and has fought this legal battle as if it was a war. The

battle otherwise is “uneven” as on one side is a public institution

whereas on the other side is a private individual.

23. As such, this Court has no hesitation to conclude that

public money has been wasted because of adamant behaviour of

officers of respondent No.2 due to litigious attitude adopted by these

officers in pursuing the instant litigation before this Court and trying to

justify the inaction, which otherwise is not at all justifiable.

24. It must be remembered that the State defined within

the ambit of State under Article 12 of the Constitution of India, is

not an ordinary party trying to win a case against one of its own

citizens by hook or by crook. The State’s interest is to meet

honest claims, vindicate a substantial defence and never to score

a technical point or overreach a weaker party to avoid a just

liability or secure an unfair advantage, simply because legal

devices provide such an opportunity.

25. In Urban Improvement Trust, Bikaner vs. Mohan

Lal (2010) 1 SCC 512, the Hon’ble Supreme Court observed that

it is a matter of concern that such frivolous and unjust litigations

by Governments and statutory authorities are on the increase. It

was further observed that statutory authorities which existed for


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to discharge statutory functions in public interest should be

responsible litigants and cannot raise frivolous and unjust

objections nor act in a callous and highhanded manner.

26. In Gurgaon Gramin Bank vs. Khazani and

another (2012) 8 SCC 781, the Hon’ble Supreme Court

considered the approach of the Government to litigate and

observed as under:

2. Number of litigations in our country is on the rise, for

small and trivial matters, people and sometimes Central and

State Governments and their instrumentalities Banks,

nationalized or private, come to courts may be due to ego

clash or to save the Officers' skin. Judicial system is over

burdened, naturally causes delay in adjudication of

disputes. Mediation centers opened in various parts of our

country have, to some extent, eased the burden of the courts

but we are still in the tunnel and the light is far away. On

more than one occasion, this court has reminded the Central

Government, State Governments and other instrumentalities

as well as to the various banking institutions to take earnest

efforts to resolve the disputes at their end. At times, some

give and take attitude should be adopted or both will sink.

Unless, serious questions of law of general importance arise

for consideration or a question which affects large number of

persons or the stakes are very high, courts jurisdiction

cannot be invoked for resolution of small and trivial matters.

We are really disturbed by the manner in which those types


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of matters are being brought to courts even at the level of

Supreme Court of India and this case falls in that category.

27. In Punjab State Power Corporation Ltd., Patiala

and others vs. Atma Singh Grewal (2014) 13 SCC 666, the

Hon’ble Supreme Court noted the facts that Courts are burdened

with unnecessary litigation primary for the reason that the

Government or Public Sector Undertakings etc. decide to litigate

even when there is no merit in the claim. It would be apposite to

refer to the relevant observations, which read thus:

8. It is not the first time that the Court had to express its

anguish. We would like to observe that the mind set of the

Government agencies/undertakings in filing unnecessarily

appeals was taken note of by the Law Commission of India

way back in 1973, in its 54th report. Taking cognizance of

the aforesaid report of the Law Commission as well as

National Litigation Policy for the States which was evolved

at an All India Law Ministers Conference in the year 1972,

this Court had to emphasize that there should not be

unnecessary litigation or appeals. It was so done in the

case of Mundrika Prasad Singh v. State of Bihar, 1979 4

SCC 701. We would also like to reproduce the following

words of wisdom expressed by Justice V.R. Krishna Iyer,

who spoke for the Bench, in Dilbagh Rai Jarry v. Union of

India and Ors., 1974 3 SCC 554.

25……..5…... But it must be remembered that theState is no ordinary party trying to win a case


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against one of its own citizens by hook or by crook;for the State's interest is to meet honest claims,vindicate a substantial defence and never to score atechnical point or overreach a weaker party to avoid ajust liability or secure an unfair advantage, simplybecause legal devices provide such an opportunity.The State is a virtuous litigant and looks withunconcern on immoral forensic successes so that if onthe merits the case is weak, government shows awillingness to settle the dispute regardless of prestigeand other lesser motivations which move privateparties to fight in court. The lay out on litigation costsand executive time by the State and its agencies is sostaggering these days because of the large amount oflitigation in which it is involved that a positive andwholesome policy of cutting back on the volume oflaw suits by the twin methods of not being temptedinto forensic show downs where a reasonableadjustment is feasible and ever offering to extinguisha pending proceeding on just terms, giving the legalmentors of government some initiative and authorityin this behalf.

9. In its 126th Report (1988), the Law Commission of India

adversely commented upon the reckless manner in which

appeals are filed routinely. We quote hereunder the relevant

passage therefrom:

2.5. The litigation is thus sometimes engendered byfailing to perform duty as if discharging a trust. Powerinheres a kind of trust. The State enjoys the power todeal with public property. That power has to bedischarged like a trust keeping in view the interests ofthe cesti que trust. Failure on this front has been moreoften commented upon by the court which, if it wastaken in the spirit in which it was made, would havelong back energised the Government and the publicsector to draw up its litigation policy. When entirelyfrivolous litigation reaches the doorsteps of theSupreme Court, one feels exasperated by the inactionand the policy to do nothingness evidenced by blindlyfollowing litigation from court to court. Dismissing a


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Special Leave Petition by the State of Punjab, the Courtobserved that the deserved defeat of the State in thecourts below demonstrates the gross indifference of theadministration towards litigative diligence. The courtthen suggested effective remedial measures. It may beextracted:4. We would like to emphasize that Government mustbe made accountable by parliamentary Social audit forwasteful litigative expenditure inflicted onthecommunity by inaction. A statutory notice of theproposed action under Section 80 Code of CivilProcedure is intended to alert the state to negotiate ajust settlement or at least have the courtesy to tell thepotential outsider why the claim is being resisted. NowSection 80 has become a ritual because theadministration is often unresponsive and hardly livesup to the parliament's expectation in continuingSection 80 in the Code despite the Central LawCommission's recommendations for its deletion. Anopportunity for setting the dispute through arbitrationwas thrown away by sheer inaction. A litigative policyfor the State involves settlement of governmentaldisputes with citizens in a sense of conciliation ratherthan in a fighting mood. Indeed, it should be adirective on the part of the State to empower its lawofficer to take steps to compose disputes rather thancontinue them in court. We are constrained to makethese observations because much of the litigation inwhich governments are involved adds to the case loadaccumulation in courts for which there is publiccriticism. We hope that a more responsive spirit will bebrought to bear upon governmental litigation so as toavoid waste of public money and promote expeditiouswork in courts of cases which deserve to be attendedto.

Nearly a decade has passed since the observations but not

a leaf has turned, not a step has been taken, and the Law

Commission is asked to deal with the problem.

2.6. A little care, a touch of humanism, a dossier ofconstitutional philosophy and awareness of futility ofpublic litigation would considerably improve the


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situation which today is distressing. More often it isfound that utterly unsustainable contentions are takenon behalf of Government and public sectorundertakings.

10. Even when Courts have, time and again, lamented

about the frivolous appeals filed by the Government

authorities, it has no effect on the bureaucratic psyche. It is

not that there is no realisation at the level of policy makers

to curtail unwanted Government litigation and there are

deliberations in this behalf from time to time. Few years ago

only, the Central Government formulated National Litigation

Policy, 2010 with the "vision/mission" to transform the

Government into an efficient and responsible litigant. This

policy formulated by the Central Government is based on

the recognition that it was its primary responsibility to

protect the rights of citizens, and to respect their

fundamental rights and in the process it should become

"responsible litigant". The policy even defines the expression

'responsible litigant' as under:

Responsible litigant" means

(i) That litigation will not be resorted to for the sake of

litigating.

(ii) That false pleas and technical points will not be

taken and shall be discouraged.

(iii) Ensuring that the correct facts and all relevant

documents will be placed before the Court.

(iv) That nothing will be suppressed from the Court and

there will not attempt to mislead any court or tribunal.


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2. That Government must cease to be a compulsive

litigant. The philosophy that matters should be left to

the courts for ultimate decision has to be discarded.

The easy approach, "Let the Court decide", must be

eschewed and condemned.

3. The purpose underlying this policy is also to reduce

government litigation in courts so that valuable court

time would be spent in resolving other pending cases

so as to achieve the goal in the national legal mission

to reduce average pendency time from 15 years to 3

years. Litigators on behalf of the Government have to

keep in mind the principles incorporated in the national

mission for judicial reforms which includes identifying

bottlenecks which the Government and its agencies

may be concerned with and also removing

unnecessary government cases. Prioritisation in

litigation has to be achieved with particular emphasis

on welfare legislation, social reform, weaker sections

and senior citizens andother categories requiring

assistance must be given utmost priority.

11. This policy recognises the fact that its success will

depend upon its strict implementation. Pertinently there is

even a provision of accountability on the part of the officers

who have to take requisite steps in this behalf. The policy

also contains the provision for filing of appeals indicating as

to under what circumstances appeal should be filed. In so

far as service matters are concerned, this provision lays

down that further proceedings will not be filed in service


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matters merely because the order of the Administrative

Tribunal affects a number of employees. Also, appeals will

not be filed to espouse the cause of one section of

employees against another.

12. The aforesaid litigation policy was seen as a silver

living to club unnecessary and uncalled for litigation by this

Court in the matter of Urban Improvement Trust, Bikaner v.

Mohan Lal, 2010 1 SCC 512in the following manner:

11. The Central Government is now attempting to dealwith this issue by formulating realistic and practicalnorms for defending cases filed against theGovernment and for filing appeals and revisionsagainst adverse decisions, thereby eliminatingunnecessary litigation. But it is not sufficient if theCentral Government alone undertakes such anexercise. The State Governments and the statutoryauthorities, who have more litigations than the CentralGovernment, should also make genuine efforts toeliminate unnecessary litigations. Vexatious andunnecessary litigations have been clogging the wheelsof justice for too long, making it difficult for courts andtribunals to provide easy and speedy access to justiceto bona fide and needy litigants.

13. Alas, inspite of the Government's own policy and

reprimand from this Court, on numerous occasions, there is

no significant positive effect on various Government officials

who continue to take decision to file frivolous and vexatious

appeals. It imposes unnecessary burden on the Courts. The

opposite party which has succeeded in the Court below is

also made to incur avoidable expenditure. Further, it causes

delay in allowing the successful litigant to reap the fruits of

the judgment rendered by the Court below.


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14. No doubt, when a case is decided in favour of a party,

the Court can award cost as well in his favour. It is stressed

by this Court that such cost should be in real and

compensatory terms and not merely symbolic. There can be

exemplary costs as well when the appeal is completely

devoid of any merit. [See Rameshwari Devi and Ors. v.

Nirmala Devi and Ors., 2011 8 SCC 249]. However, the

moot question is as to whether imposition of costs alone will

prove deterrent? We don't think so. We are of the firm

opinion that imposition of cost on the State/PSU's alone is

not going to make much difference as the officers taking

such irresponsible decisions to file appeals are not

personally affected because of the reason that cost, if

imposed, comes from the government's coffers. Time has,

therefore, come to take next step viz. recovery of cost from

such officers who take such frivolous decisions of filing

appeals, even after knowing well that these are totally

vexatious and uncalled for appeals. We clarify that

such an order of recovery of cost from the concerned officer

be passed only in those cases where appeal is found to be

exfacie frivolous and the decision to file the appeal is also

found to be palpably irrational and uncalled for.

28. In Subrata Roy Sahara vs. Union of India and

others (2014) 8 SCC 470, it was observed by the Hon’ble

Supreme Court that State and its agencies litigate endlessly just


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because of lack of responsibility to take decision. It was observed

as under:

This abuse of the judicial process is not limited to any

particular class of litigants. The State and its agencies

litigate endlessly up to the highest Court just because of the

lack of responsibility to take decisions. So much so that we

have started to entertain the impression that all

administrative and executive decisionmaking are being left

to courts just for that reason. In private litigation as well, the

litigant concerned would continue to approach the higher

Court, despite the fact that he had lost in every court

hithertobefore. The effort is not to discourage a litigant in

whose perception his cause is fair and legitimate. The effort

is only to introduce consequences if the litigant’s perception

was incorrect and if his cause is found to be not fair and

legitimate, he must pay for the same. In the present setting

of the adjudicatory process, a litigant no matter how

irresponsible he is suffers no consequences. Every litigant,

therefore, likes to take a chance even when counsel’s advice

is otherwise.

29. Similar reiteration of law can be found in a fairly

recent judgment of the Hon’ble Supreme Court in Rajendra

Shankar Shukla and others vs. State of Chhattisgarh and

others (2015) 10 SCC 400, wherein, the Hon’ble Supreme Court

held in para 32 as under:


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“32. Further, this Court has frowned upon the practice of

the Government to raise technical pleas to defeat the rights

of the citizens in Madras Port Trust vs. Hymanshu

International (1979) 4 SCC 176, wherein it was opined that

it is about time that governments and public authorities

adopt the practice of not relying upon technical pleas for the

purpose of defeating legitimate claims of citizens and do

what is fair and just to the citizens. Para 2 from the said

case reads thus : (SCC p.177)

“2. We do not think that this is a fit case where weshould proceed to determine whether the claim of therespondent was barred by Section 110 of the MadrasPort Trust Act (2 of 1905). The plea of limitation basedon this section is one which the court always looksupon with disfavour and it is unfortunate that a publicauthority like the Port Trust should, in all morality andjustice, take up such a plea to defeat a just claim of thecitizen. It is high time that governments and publicauthorities adopt the practice of not relying upontechnical pleas for the purpose of defeating legitimateclaims of citizens and do what is fair and just to thecitizens. Of course, if a government or a publicauthority takes up a technical plea, the Court has todecide it and if the plea is wellfounded, it has to beupheld by the court, but what we feel is that such aplea should not ordinarily be taken up by agovernment or a public authority, unless of course theclaim is not wellfounded and by reason of delay infiling it, the evidence for the. purpose of resisting sucha claim has become unavailable. Here, it js obviousthat the claim of the respondent was a just claimsupported as it was by the recommendation of theAssistant Collector of Customs and hence in theexercise of our discretion under Article 136 of theConstitution, we do not see any reason why we shouldproceed to hear this appeal and adjudicate upon the


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plea of the appellant based on Section 110 of theMadras Port Trust Act (2 of 1905).”

30 It needs to be noticed that respondent No.2, who very

well knew that there had been inaction on his part or his officials

part, if not earlier, then at least at the time of filing of reply in the

instant petition, instead of candidly admitting such lapses, still

chose to claim that everything in his department was hunky

dory. The State is expected to contest the litigation in a fair and

square manner and not to conceal anything from the Court.

31 As held by the Hon'ble Supreme Court, the

respondents could have been well within their right not to fill up

the posts, but that could have only been for some valid and

cogent reasons. However, here, there is no reason forthcoming

from the side of respondent No.2 and rightly so, because the

entire fault lies upon respondent No.2 and its officials/officers,

who dumped the file.

32 It is high time that respondent No.2 put his house in

order. Such incidence(s) cannot be simply brushed aside and

permitted to be swept under the carpet.

33 Therefore, we direct the Principal Secretary (Health)

to conduct an inquiry into the entire episode and fix


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responsibility of the erring officials/officers irrespective of their

rank(s) and profile(s) and irrespective of the fact whether they

are serving or retired. This exercise be completed within eight

months from today and report compliance on 22.3.2022.

34 However, now the moot question is as to what relief (if

any) can be granted to the petitioner.

35 It is not in dispute that even after offering

appointment to 22 candidates from the waiting list, 3 posts were

still lying vacant on account of nonjoining of the candidates,

which were required to be filled up from the next in the waiting

list, when the panel was still live unless there was a decision to

the contrary. Since there is no such decision, therefore, the

petitioner cannot be made to suffer for no fault on his part or on

account of the fault of respondent No.2 and its officials/officers.

36 Accordingly, while allowing this writ petition, we

direct respondent No.3 to sponsor names of three candidates

including the petitioner within a period of one week from today

and on such sponsorship, respondent No.2 shall issue

appointment order(s) to the petitioner and two others as

Laboratory Assistant (Allopathy) on contract basis, OBC (UR)

Post Code 654.


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37 Since the petitioner and the remaining two

candidates, who are to be given appointment, have not worked

against the said post(s), they shall not be entitled to any

remuneration for the period of their nonemployment, however in

case seniority is maintained of the similarly situated/appointed

persons, then these persons shall be entitled to seniority on

notional basis from 23.11.2019 the date when 22 candidates

from waiting list were offered appointment as Laboratory

Assistant and shall be placed at the bottom of the seniority list.

38 Pending application(s), if any, also stands disposed of.

The parties are left to bear their own costs.

(Tarlok Singh Chauhan) Judge

(Satyen Vaidya) 20.7.2021 Judge (pankaj)


Documents

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. …