1. These two appeals are directed against the judgment of the learned Single of this Court in CWP No. 6178 of 2010 whereby he allowed the writ petition filed by Shri Chaman Lal Sharma and set aside the appointment of Shri Chander Mohan Chauhan as Computer Operator on ad hoc basis on 12.9.1991, on regular basis on 30.5.1995 and his promotion which was made on 18.1.1999.
2. Briefly stated, the facts of the case are that Shri Chander Mohan Chauhan (hereinafter referred to as the private respondent) was appointed as Computer Operator in the H.P. Public Service Commission (hereinafter referred to as the Commission) on ad hoc basis on 12.9.1991. His services were regularized on 30.5.1995. He was promoted to the post of Programme Planning Officer on ad hoc basis w.e.f. 29.10.1997 and he was regularized, as such, on 18.1.1999.
3. After the private respondent was promoted as Programme Planning Officer, one post of Computer operator fell vacant. After selection, Shri Chaman Lal Sharma (hereinafter referred to as the petitioner) was appointed as Computer operator on 3.1.2000. In 2004 one pseudonymous complaint was made in which it was alleged that the private respondent had been appointed as Computer Operator and later promoted as Programme Planning Officer in violation of the Rules. Thereafter, the State of H.P. asked the Commission for its response. The Commission sent a communication on 27th August, 2004 offering its comments and it was stated that the private respondent had been appointed in violation of the Rules. Thereafter, the State Government again asked the Commission to process the matter further and fix the responsibility of the erring official.
4. Pursuant to the aforesaid communication, the Commission issued a show cause notice to the private respondent on 6.4.2005 asking him to show cause why his services should not be dispensed with since he had been appointed in violation of the Rules. The private respondent filed an Original Application before the erstwhile H.P. State Administrative Tribunal being O.A. No. 930/2005 challenging the said show cause notice. The operation of the show cause notice was stayed by the learned Tribunal. On the abolition of the learned Tribunal, the said O.A. was transferred to this Court and renumbered as CWP (T) No. 11864 of 2008. The writ petition was disposed of on 23.11.2009. Thereafter the Commission passed an order on 9.8.2010 accepting the explanation of the private respondent and the notice, whereby it was proposed to remove the private respondent from service, was withdrawn.
5. Thereafter, petitioner Chaman Lal Sharma filed a writ petition being CWP No. 6178 of 2010 in which he prayed that the initial appointment of the private respondent as Computer Operator was against the Rules and therefore, his illegal appointment and regularization on the same post be quashed and set aside. The promotion of the private respondent to the post of Programme Planning Officer was also challenged on the ground that it was not in accordance with Recruitment and Promotion Rules. A prayer was also made that the petitioner be promoted to the post of Programme Planning Officer. This petition has been allowed by the learned Single Judge. Hence, these two appeals one filed by the present appellant and one filed by the Commission.
6. We have heard Mr. Vinay Kuthiala, learned Senior Advocate for the Commission, Mr. Ajay Mohan Goel, learned counsel for the appellant/private respondent and Mr. Shashi Shirshoo, learned counsel for the petitioner.
7. At the outset we may notice that the learned Single Judge has set aside the appointment of the private respondent on the following grounds: (i) that when the private respondent was appointed as Computer Operator on ad hoc basis and when he was regularized the post in question was not advertised and the name of the private respondent was not sponsored by the Employment Exchange; and (ii) that the private respondent did not fulfill the minimum educational qualification prescribed under the draft Rules prepared on 26.9.1991 by the Commission for filling up this post. The learned Single Judge has also come to the conclusion that the Education Centre from which the private respondent qualified his Diploma in Computer Programme and System Analysis was not entitled to issue such certificate and therefore, held that the appointment is illegal. The learned Single Judge also held that the Commission had taken a conflicting stand in the earlier writ petition filed by the private respondent and in the present writ petition out of which these appeals arise.
8. We had called for the record of the case and both the counsel for the appellants candidly and fairly admitted before us that it was a fact that no advertisement was issued when the post of Computer Operator was filled up by the Commission either on ad hoc or on regular basis. Employment in Government service or in a body like the Commission is a public employment. We are of the considered view that such employment should not be offered without issuing an advertisement and calling applications from the open market. Only if a proper advertisement is issued will all qualified persons be aware about the said post being available. More people will apply for the post and when the post is not advertised it will give rise to the presumption that the selection of the candidate has been made by the back door. To this extent the original writ petitioner is right that the initial appointment of the private respondent was not made after inviting applications from general public.
9. However, the question is whether such appointment even if made irregularly can be set aside at this belated stage. It appears that it was not brought to the notice of the learned Single Judge what impact this judgment would have. The private respondent who has served the Commission for more than two decades would be left without a job for no fault of his. In the present case there are no allegations of mala fides. It is not alleged that because the private respondent was particularly known to some official or the other he was appointed through the back door. We can also not be oblivious to the fact that the appointment was made by a Constitutional body like the Commission. We had, therefore, called for the entire records of the case.
10. From the record, which we have carefully perused, we find that on the request of the Commission the State of H.P. accorded approval for creation and filling up one post of Computer Operator. The Recruitment and Promotion Rules this post were not even in existence on the said date. Even the draft Recruitment and Promotion Rules had not been framed. Therefore, a proposal was made that the post of Computer Operator may be filled up on ad hoc basis in the absence of Recruitment and Promotion Rules. The private respondent who was at that time working as Computer Operator in the Planning Department and had worked there since 15.2.1990 was appointed as Computer Operator on ad hoc basis. The Chairman of the Commission approved the appointment of Private respondent. Before appointing the petitioner even on ad hoc basis the Commission had sought the views of Advisor (Planning) to the State of Himachal Pradesh with regard to the certificate produced by the private respondent and also his working experience, conduct etc. The Advisor (Planning) to the State of Himachal Pradesh had issued the following letter.
âNo. POSOGOM(B)1-1/91
HIMACHAL PRADESH GOVERNMENT
PLANNING DEPARTMENT
To Advisor (Planning)
H.P. Shimla-2
Dated Shimla2, 3rd September, 1991.
Subject: Filling up the posts of Computer Operator.
Sir,
Inviting your kind attention to your letter No.3- 47/90-PSC(R-1) dated 27 August 1991 I want to say that I have made full enquiry of this case at my level on the basis of available record and on the basis of letter of Labour Ministry Employment and Training produced by Sh. Chander Mohan Chauhan The Indian Education Centre Harola Market, Sector-5, Noida, Distt. Gaziabad, U.P. is permanently affiliated with Director Training and Employment. Enclosing the copy of the letter to you it is submitted that the further action in the matter may please be taken accordingly. As far as the work and professional knowledge of Sh. Chander Mohan Chauhan is concerned he is perfect in that. We have compared the courses of study passed by Sh. Chander Mohan Chauhan with the present Diploma courses of the Himachal Pradesh University and found that the courses passed by Sh. Chander Mohan chauhan are better than H.P. University.
Yours faithfully
Sd/-
Advisor (Planning)
H.P. Shimla-2â
and it was only thereafter the petitioner was offered appointment on ad hoc basis.
11. The Commission prepared the draft Rules on 26.9.1991 and sent these to the Government for approval. However, the Government did not approve the draft Rules and sent the same back to the Commission with a direction that the qualifications prescribed for the post of Computer Operator be reduced. Whereas in the draft Rules proposed by the Commission the proposal was that the eligible candidates should be Graduate from a recognized University in Science with Physics and Mathematics or Graduate with Mathematics/Statistics and should have Diploma in Computer Application of at least one year duration and one year experience in Computer Operation, the State proposed that instead of Graduation the qualification should be Matriculation and instead of one year Diploma, the Diploma should be of six months.
12. Be that as it may, the Rules proposed by the Commission were not approved by the Government. It would also be pertinent to mention that at the time when the private respondent was initially appointed Mr. K.L. Rattan was the Chairman of the Commission and three others members were Mr. N.R. Pathak, Member-I, Mr. M.C. Vakil, Member-II and Dr. R. Sharma, Member-III, who had all approved the appointment of the private respondent. When the matter came up for extension of service of the private respondent the entire Commission comprising of the aforesaid persons took a decision on 25.8.1992 that the private respondent be continued as Computer Operator on ad hoc basis till the post is filled up on regular basis and it was also resolved that the Recruitment and Promotion Rules should be finalized at the earliest.
13. Unfortunately, due to the difference of opinion between the Commission and the State Government, the Rules were not finalized. The State Government time and again insisted that for the post of Computer Operator the minimum educational qualification should be Matriculation with Diploma in Computer Science or degree holder with Diploma in Computer Science. Again the Commission on 6.3.1993 reiterated its earlier stand that the qualification should be Graduation in Science with Physics and Mathematics or Graduate with Mathematics/Statistics along with Diploma in Computer Operation with one year duration and one year experience in Computer Operation.
14. When this dispute between the Commission and the State Government could not be resolved, the matter was again taken up by the Commission in the year 1994. By that time the private respondent had worked for more than three years and in a meeting held on 26.10.1994 of the full Commission it was decided to approve the extension of service of the private respondent on ad hoc basis for a period of six months w.e.f. 1.10.1994. It would also be pertinent to mention that this time the Chairman of the Commission was Mr. R.R. Varma and one of the members had also changed. Thereafter, a proposal was made by the Secretary of the Commission to regularize the appointment of the private respondent. The relevant portion of the proposal reads as follows:
âThe post of Computer Operator has been filled up on ad-hoc basis by appointing Shri Chander Mohan Chauhan in September, 1991 in the pay-scale of Rs.1500-2640. Since then the appointment of Shri Chander Mohan Chauhan has been working on ad-hoc basis because the Government has not been able to finalize the RandP Rules for the post of Computer Operator. The plea taken by the Government is that common RandP Rules are to be framed and only thereafter would be notified. It is extremely unfair to keep a person as on ad-hoc appointee for 4 to 5 years on account of the unability of the appointing authority to finalize the RandP Rules. Apart from the uncertainty that dogs the career of the incumbent. There is also no incentive for future promotion etc. Fortunately, Shri Chander Mohan Chauhan has been working with unusual enthusiasm and dedication. The entire computerization efforts has been possible due to the hard-work and support put in by Shri Chander Mohan Chauhan. It is therefore, in the interest of the Commission that Shri Chander Mohan Chauhan is absorbed on regular basis.
Normal understanding is that a post cannot be filled up on regular basis without RandP Rules being formulated. Note-5 at Page-29 of the HP.P.S.C. Hand Book clarifies the position as follows:-
âOrdinarily statutory rules should be formulated before a post is filled. However, in certain circumstances, it may become necessary to fill a post before framing statutory rules. In case of this type, when falling within the purview of the Commission the methods of recruitment and the principles to be followed in making appointments, etc. should be decided in consultation with the Commission, generally, before sending to the Commission as requisition or other proposal to fill the post.â
Similar provision have also been made in the Union Public Service Commission (Exemption from Consultation) Regulations. Highlighted portion of the extract placed at Flag- âA may kindly be perused.
It would therefore, be evident that a post can be filled up on regular basis even in the absence of notified RandP Rules. In this case, the appointing authority is the Commission itself and therefore there would be no violation of rules in case the post of computer Operator is filled up on regular basis. The RandP Rules as and when notified by the Government would apply to future promotions as well as to the future vacancies arising in the same category.â
15. The Chairman of the Commission considered this proposal and asked for more facts to be placed and thereafter the matter was again placed before the full Commission and the Commission comprising of Mr. R.R. Varma, Chairman, Mr. N.R. Pathak Member-I, Dr. R. Sharma, Member-II and Mrs. Vimla Bhagat Member-III took the following decision on 27th May, 1995:-
âThe Commission in its meeting held on 27th May, 1995 considered the above proposal and decided as follows:-
(i) The Commission had prepared RandP Rules for the post of Computer Operator and sent the same for approval to the Government.
(ii) The Government had not approved the RandP Rules on the plea that common Rules were being prepared.
(iii) The Commission had also decided that the post of Computer Operator would be notified to Emp. Exchanges only when the RandP Rules were notified.
(iv) In cases where RandP Rules were not notified, the Commission was competent to determine the procedure for recruitment.
(v) Therefore, in view of the fact that prior to his appointment in the Commission, Shri Chander Mohan Chauhan was working in the Planning Department, where his name had been sponsored by the Employment Exchange, the Commission decided to appoint Shri Chander Mohan Chauhan as Computer Operator on regular basis in the pay-scale of Rs.1500-2640.â
16. Consequent to this decision, the services of the private respondent were regularized in the year 1995 after he had served with the Commission for four years. It would also be pertinent to mention that from the record it is apparent that the employer i.e. the Commission had throughout appreciated the working of the private respondent and probably for this reason he was made permanent.
17. In October 1997, the State of Himachal Pradesh conveyed the sanction of the Government for creation of one post of Programme Planning Officer in the Commission. Since no Rules were there to fill up the post at that time the private respondent was promoted on ad hoc basis by the Commission in its meeting held on 28.10.1997. It would be pertinent to mention that in this meeting of the Commission Mr. R.R. Varma was the Chairman and the two members who attended were Mr. P.C. Dogra and Mr. S.S. Tomar. Thereafter, the Rules were framed and the private respondent was eligible as per the Rules for promotion. A DPC was constituted and the private respondent was promoted as Programme Planning Officer. Consequent to his promotion, the post of Computer Operator fell vacant. It was against this post that the petitioner was appointed.
18. It was in 2004 that one pseudonymous compliant was made against the private respondent and thereafter the petitioner also filed a complaint. Consequent to which a show cause notice was issued to the private respondent which was stayed by the learned Tribunal as detailed hereinabove.
19. The question is could the appointment of the private respondent, which was made in the year 1991, be challenged in the year 2004 by a person who had not even born in the cadre and who joined service only consequent to the promotion of the private respondent.
20. The first question which arises is whether the petitioner had the right to challenge the appointment of the private respondent. As far as the private respondent is concerned, admittedly he was a Graduate in the subjects which were mentioned in the draft Rules and had obtained a Diploma of nine months from the Indian Education Centre, Centre for Computer Education, Research and Training IEC House, M-92, Connaught Place, New Delhi-110001. On 5th April, 1995 he had qualified a Diploma in Computers in Office Management from the Indira Gandhi National Open University and passed the qualification in âBâ Grade, which is equivalent to very good.
21. On the other hand, petitioner Chaman Lal Sharma only qualified a one month course in Use of Personal Computers from Regional Computer Centre, Chandigarh on 10.5.1991 and a four months course in Fundamentals of Electronic Data Processing and Programming in Cobol Language from the same Centre in the year 1991. He did not even fulfil the requisite qualifications in the year 1991. The learned Single Judge has relied upon a document issued by the Joint Director (Training) in coming to the conclusion that the Indian Education Centre was not authorized to issue the certificate which the private respondent obtained there from. It appears that the attention of the learned Single Judge was not drawn to the fact that whereas the certificate issued in favour of the private respondent was from Indian Education Centre, Centre for Computer Education, Research and Training IEC House, M-92, Connaught Place, New Delhi-110001, the letter relied upon by the petitioner and the learned Single Judge related to some other India Education Centre at Harola Market, Sector-5, Noida, District Ghaziabad (UP).
22. As far as the qualification obtained from Indira Gandhi National Open University is concerned, the University itself has clarified that the Diploma in Computers in Office Management is equivalent to Diploma in Computer Application of any other recognized University. The letter of the IGNOU relied upon by the petitioner has no relevance because that only talks of Post Graduate Diploma and not Diploma.
23. From the above facts, it is apparent that the petitioner did not hold the basic educational qualification for being appointed when the private respondent was appointed. True it is, no advertisement was issued but the appointment of the private respondent should have been challenged at that stage and not after 20 years. The petitioner got into the job only after the promotion of the private respondent and it does not appeal to reason that he should now be permitted to challenge the very initial appointment of the private respondent.
24. A large number of authorities have been cited by both sides, but it is not relevant to deal with all the authorities. With regard to delay and laches, a Division Bench of this Court in LPA No. 721 of 2011 titled Dr. Jogi Ram Gaur v. State of H.P. and others, decided on 26.4.2012 after considering the entire law on this aspect, held as follows:-
â41. No doubt, it is true that there is no rigid rule or a strait jacket formula which can be laid down. Amount of delay which may dis-entitle a person to claim relief may vary from case to case and each case has to be decided on its own facts. There may be cases where even a delay of one day or two can be fatal to the petitioner, but where rights of others are not involved and fundamental rights of the petitioner are breached, then long delays can also be condoned. However, when third party rights are created and a person is put to great disadvantage because of the delay in filing the matter, then the petition should be rejected on the principle of delay and laches.â
25. In the said case this Court also dealt with a matter where the person did not hold all the requisite qualifications when he was appointed, but had relevant qualifications and this Court went on to hold as follows:-
â30. We are dealing with a matter where the selection was made as far back in the year 1989 and none of the officers, who were directly involved in the selection process, is there to inform the Court as to what weighed with the Selection Committee. It would also be pertinent to mention that after the selection of the appellant, the Home Department observed that the recommendation made by the office of the Director General of Police are based on practical knowledge and eligibility and these persons may be offered the post. Thereafter, the approval of the then Hon'ble Chief Minister was obtained on 02.12.1989 to bring the appellant on deputation to the HPSFSL. Thereafter, the approval of the Public Service Commission was sought which approval was also granted.
31. In this case, approval was granted at the highest level by the Chief Executive Officer of the State and also by the Public Service Commission and the Public Service Commission specifically approved the appointment of Shri J.R. Gaur on deputation basis to the post of Assistant Director. Therefore, Dr. Gaur left his post at Haryana and joined service in Himachal Pradesh on 02.04.1990. Nobody challenged his appointment in 1990. He was an M.Sc. and during the year 1990, he obtained a doctorate in Forensic Serology, which is directly concerned with the post of Assistant Director, Biology and Serology, which he was holding. His long experience of twelve years in the field of Serology and his doctorate in the subject of Forensic Serology were very relevant.
32. From the records, it is also apparent that despite repeated efforts, no persons were willing to join the SFL in Himachal Pradesh and, in fact, the other gentleman, Shri R.S. Verma, who was selected, did not even join service in the State of Himachal Pradesh. It is in these peculiar circumstances that the appointment of the appellant, even if illegal or irregular, cannot be said to void ab initio, and, therefore, the challenge to his appointment should have been made at that stage itself or soon thereafter.â
26. The Apex Court in B. Srinivasa Reddy vs. Karnataka Urban Water Supply and Drainage Board Employees Assn. and others, (2006) 11 Supreme Court Cases 731(II) held as follows:-
â78. The High Court, in the instant case, was not exercising certiorari jurisdiction. Certiorari jurisdiction can be exercised only at the instance of a person who is qualified to the post and who is a candidate for the post. This Court in Umakant Saran (Dr.) v. State of Bihar held that the appointment cannot be challenged by one who himself is not qualified to be appointed. In Kumari Chitra Ghosh v. Union of India a Constitution Bench of this Court held as under:
â12. The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the nominations made to the reserved seats. It seems to us that the appellants do not have any right to challenge the nominations made by the Central Government. They do not compete for the reserved seats and have no locus standi in the matter of nomination to such seats. The assumption that if nominations to reserved seats are not in accordance with the rules all such seats as have not been properly filled up would be thrown open to the general pool is wholly unfounded.â
Since the petitioner did not hold the essential qualification at the relevant time he cannot be permitted to challenge the appointment of the private respondent.
27. In this case we may also point out that when the initial appointment on ad hoc basis was made there were no Rules, either draft or otherwise. Therefore, the employer could have taken the best person as per his assessment. As far as the draft Rules are concerned, the judgment of Apex Court in Abraham Jacob and others vs. Union of India, (1998) 4 Supreme Court Cases 65 is not applicable. The law with regard to the draft Rules is clear. Draft Rules are not applicable unless there is a specific intention to make recruitment in accordance with the draft Rules. Draft Rules are only draft Rules and become enforceable only when they are notified. In this case there is no material on record to show that the Commission ever decided to enforce the draft Rules. In fact the notings, reproduced hereinabove, clearly indicate that in view of the difference of opinion between the Government and the Commission, the Commission in its wisdom decided to regularize the services of the private respondent in the absence of the Rules. The grounds which weighed with the Commission were the good service rendered by the private respondent and the fact that he fulfilled all the qualifications. At best the private respondent was short of qualifications by three months in regard to his Diploma in Computer Application. The Diploma in Computer Operation is equivalent to Diploma in Computer Application as is apparent from the letter issued by the IGNOU which reveals as follows:
âCONFIDENTIAL
Dr. D.B. Negi FN.IG/RCS/I-Confidential/2010
M.A. M.Phil Ph.D
22.4.2010
Regional Director
The Secretary
H.P. Public Service Commission
Nigam Vihar, Shimla (HP)
Sub: Clarification regarding Diploma in Computers in Office Management (DCO) offered by the Indira Gandhi National Open University-equivalence thereof.
Sir,
This is with reference to your office letter No. 4-9/91- PSC DT. 17.4.2010 regarding the subject cited above.
This is to certify that Sh. Chander Mohan Chauhan under enrolment No. 930830371 has successfully completed the Diploma in Computers in Office Managementin the year 1995. The award of above Diploma by this University is duly recognized and is equivalent to Diploma in Computer Application of any other recognized University. Diploma awarded to Sh. Chander Mohan Chauhan in Computers in Office Management is having the contents of theory and practicals for Computer Application and modern Office Management System.
Hence, the Diploma in Computers in Office Management awarded to Sh. Chander Mohan Chauhan by this University is at par with the Diploma in Computer Application of any other recognized institution/University.
With regards,
Yours Sincerely
Regional Directorâ
28. We are afraid that the letter relied upon by the learned Single Judge has no relevance to the present case since that relates to Post Graduate Diploma and not to ordinary Diplomas.
29. Even if the private respondent was short of qualification of three months by the time he was regularized had more than four years experience in the Commission itself. In these circumstances, he virtually fulfilled all the necessary qualifications and his appointment should not have been set aside that too at a belated stage.
30. In view of the above discussion, we allow the appeals, set aside the judgment passed by the learned Single Judge and dismiss the writ petition. No order as to costs.