1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP Nos. 55 of 2023 & 5046 of 2025 Date of Decision: 28.05.2025 __________________________________________________________________________ 1. CWP No. 55 of 2023 Yashpal ……...Petitioner Versus State of Himachal Pradesh & Ors. …....Respondents 2. CWP No. 5046 of 2025 Manoj Sharma ……...Petitioner Versus State of Himachal Pradesh & Ors. …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the petitioner: Mr. Vijay Chaudhary, Advocate, for the petitioner in CWP No. 55 of 2023. Mr. Ajay Sharma, Senior Advocate, with Mr. Atharv Sharma, Advocate, for the petitioner in CWP No. 5046 of 2025. For the respondent(s): Mr. Anup Rattan, Advocate General, Mr. Rajan Kahol, Mr. Vishal Panwar & Mr. B.C. Verma, Additional Advocate Generals with Mr. Ravi Chauhan, Deputy Advocate General, for respondents-State. Mr. Angrez Kapoor, Advocate, for respondent No. 4 in CWP No. 55 of 2023. Mr. Ajay Sharma, Senior Advocate, with Mr. Atharv Sharma, Advocate, for respondent No. 5 in CWP No. 55 of 2023. _______________________________________________________________________________ Sandeep Sharma, J. (Oral) 2 Since common questions of facts as well as law are involved in both the above-captioned cases, this Court heard them together and the same are now being disposed of vide common judgment. 2. Relevant facts, which are otherwise common in both the cases, are that petitioner herein was appointed as a Home Guard in 7th Battalion of Home Guards at Kullu in the month of September, 2012. In 2015, he was promoted as Section Leader. On 1.11.2016, petitioner was further promoted as Havildar. On 19.11.2020, one post of Havildar Instructor/Quarter Master Havildar was advertised by respondent No. 4, vide advertisement dated 19.11.2020 (Annexure P-2). Being eligible, both petitioner as well as respondent No. 5, who alongwith petitioner, was also working as a Home Guard, applied for the post of Havildar Instructor/Quarter Master Havildar. Though both the petitioner and respondent No. 5 participated in selection process, however, vide press note dated 26.11.2021 (Annexure P-8), respondent No. 5 was recommended for appointment against the post of Havildar Instructor/Quarter Master Havildar. Pursuant to his selection, respondent No. 5 was offered appointment against the post in question, vide appointment letter dated --.12.2021 (Annexure P-8/T available at page 62 of the paper book). Petitioner herein, being dissatisfied with the selection of private respondent, 3 applied for certain information under Right to Information Act from respondent No. 4, which was not supplied to him and as such, on 27.04.2022, he filed appeal under Right to Information Act. On 30.05.2022, appeal preferred by the petitioner was allowed and respondent No. 4 was directed to supply the information sought by the petitioner. On 18.06.2022, petitioner again applied for information from respondent No. 6 under Right to Information Act regarding NSS Certificate, if any, issued to respondent No. 5. However, on 12.07.2020, respondent No. 6 dismissed the application filed by the petitioner, as a result thereof, petitioner again made a representation dated 13.08.2022 to State Information Commission against the rejection of his application under Right to Information Act by respondent No. 6, which ultimately came to be allowed with a direction to the respondents to supply the information sought for. Information supplied, pursuant to order passed by State Information Commission, revealed that respondent No. 5 was not possessing valid NSS Certificate, qua which he was granted one mark. After having discovered afore factum of wrongly awarding one mark in favour of respondent No. 5 for NSS Certificate submitted by him at the time of his making application for the post of Havildar Instructor/Quarter Master Havildar, petitioner approached this Court in the instant proceedings praying therein for the following main 4 reliefs (for the brevity and clarity, prayer made by the petitioner in CWP No. 55 of 2023 is being reproduced herein below): (i) That the respondent No.3 be directed to produce the entire original record of NSS certificate issued to the respondent No.5 by respondent No.6. (ii) That the selection and appointment orders of the respondent No.5 (annexure P-8) to the post of Havildar Instructor/Quarter master Havildar may kindly be quashed and set aside. (III) That the respondent No. 4 be directed to recommend the name of the petitioner for the post of Havildar Instructor/Quarter master Havildar and further the respondent No.2 be directed to offer letter of appointment to the petitioner for the post of Havildar Instructor/Quarter master Havildar from the date when respondent No.5 was given appointment by the respondent No.2 with all consequential benefits. 3. For completion of facts, it is pertinent to take note of the fact that after filing of the petition bearing No. 55 of 2023, Manoj Sharma, respondent No. 5 in afore petition also filed a separate petition bearing CWP No. 5046 of 2025, titled as Manoj Sharma Vs. State of Himachal Pradesh, seeking therein direction to the respondents to issue him NSS Certificate on the prescribed format. 4. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Vijay Chaudhary, learned counsel representing the petitioner, is that since NSS Certificate annexed 5 by the private respondent, while making application for the post of Havildar Instructor/Quarter Master Havildar, in terms of advertisement issued by respondent No. 4, was neither on the prescribed format nor issued by the competent authority, there was no occasion for the respondents to grant him one mark. He submitted that had respondents not granted one mark to private respondent qua his having possessed NSS Certificate, petitioner herein would have been selected against the post of Havildar Instructor/Quarter Master Havildar. 5. While making this Court peruse NSS Certificate adduced on record by the private respondent (typed copy available at page No.103), Mr. Vijay Chaudhary, learned counsel for the petitioner, submitted that since same was not on the prescribed format and was not issued by the competent authority, no mark, if any, could have been awarded to the private respondent. 6. While making this Court peruse reply filed by the respondents No. 1 & 3, Mr. Vijay Chaudhary, learned counsel for the petitioner, further argued that once it had come on record that certificate was neither issued by the Principal of the concerned school nor on the proper format, it ought not have been taken into consideration by the Selection Committee, while considering the application made by the private respondent for 6 appointment. While referring to supplementary affidavit dated 02.11.2023 (available at page 176 of the paper book), Mr. Vijay Chaudhary, learned counsel for the petitioner, stated that as per rules for issuance of NSS Certificate, same could only be issued by the Director of Higher Education. However, in the instant case, NSS Certificate placed on record has been issued by the Principal of the school concerned. He further submitted that since copy of Certificate allegedly issued by the Principal is not available in the school records, which fact has been verified by the Principal of the school concerned by filing affidavit before this Court, authenticity of certificate adduced on record by private respondent is under doubt, hence same ought not have been taken into consideration. 7. To the contrary, Mr. B.C.Verma, learned Additional Advocate General, while referring to reply filed by the respondent No. 1 & 3, stated that though Certificate has not been issued by the Director Higher Education and same is not in the specific format, but reply of respondent No. 6 i.e. Principal suggests that private respondent was not only studying in the school concerned at relevant time, but his name was also recommended for attending the NSS camp. While referring to reply filed by the private respondent along with certain photographs as well as documents adduced on record Mr. Verma stated that same are suggestive 7 of the fact that private respondent had not only attended the NSS camp, but was also issued Certificate by the then Principal. Mr. B.C.Verma, learned Additional Advocate General, stated that though certificate placed on record by the petitioner is not issued by the Director Higher Education, but certainly suggests that petitioner had attended the NSS camp at relevant time, if it is so, no benefit, if any, can be permitted to be availed by the petitioner on account of fact that NSS Certificate placed on record was not on the prescribed format. While referring to rejoinder filed by the petitioner to the reply of respondent No. 6, along with which he has placed on record Rules for issuance of NSS Certificate, Mr. Verma, stated that though certificate is to be issued by the Director Higher Education, but demand in that regard is to be raised by the Principal/NSS Programmer Officer of the school concerned. He submitted that though no record with regard to demand, if any, raised by the Principal school concerned is available, but once certain documents adduced on record and admitted by respondent No. 6 suggests that at relevant time petitioner was not only the student of the school concerned, but he was also permitted to join NSS Camp, which he actually attended as is evident from the photograph adduced on record, authenticity of Certificate issued by the then Principal cannot be doubted. 8 8. Mr. Ajay Sharma, learned Senior Counsel for private respondent No. 5 as well as petitioner namely Manoj Sharma in CWP No. 5046 of 2025, also submitted that since it is apparent from the reply filed by respondent No. 6 that the name of the petitioner was enrolled in school and at relevant time, he was permitted to attend the NSS Camp, he cannot be punished for fault, if any, committed by the then Principal by not issuing the certificate on the prescribed format. While refuting the claim of the learned counsel for the petitioner that no certificate could have been issued on the same date, Mr. Ajay Sharma, learned Senior Counsel, submitted that though as per rules pressed into service for issuance of certificate, certificate is to be issued by the Director Higher Education, but as per procedure, demand is to be raised by the Principal, who at first instance would certify that such and such person has attended the NSS camp for requisite period and thereafter only competent authority i.e. Director Higher Education would issue NSS Certificate in the proper format. He submitted that though it appears that in case the then Principal issued certificate, thereby verifying that petitioner has attended the NSS camp for the period mentioned in the same, but before final certificate in the prescribed format could be issued by the Director Higher Education, petitioner, in response to advertisement, as taken note hereinabove 9 submitted application, thereby enclosing certificate issued by the Principal, which ultimately came to be accepted by the competent authority. Learned counsel for respondent No. 4 i.e. Subordinate Selection board in his reply (available at page No. 185) admitted that genuineness of the certificate submitted by the private respondent was not verified, while considering his application. 9. Having heard learned counsel for the parties and perused material available on record, this Court finds that though petitioner herein also participated in selection process for the post of Havildar Instructor/Quarter Master Havildar, but since he failed to make his place in the merit list prepared by the respondents, he approached this Court in the instant proceedings, seeking therein quashment of selection of private respondent on the ground that he was wrongly granted one mark for his having possessed NSS Certificate, which was not on the prescribed format. 10. It is settled law that a process of selection cannot be challenged by an unsuccessful candidate by pointing to certain irregularities here and there in the process of which he was aware, once the result is not to his liking. Relief, in such a case, is to be declined by applying the principles of estoppel, acquiescence and/or waiver. Reference in this regard c Reliance in this regard is placed upon Madras Institute of Development Studies 10 and another vs. K. Sivasubramaniyan and others (2016) 1 SCC 454, wherein Hon'ble Apex Court has held as under: “14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra. 15. In Dr. G. Sarana vs. University of Lucknow & Ors., (1976) 3 SCC 585, a similar question came for consideration before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Athropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held: (SCC P. 591, para 15) "15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal vs. Prem Chand Singhvi, AIR 1957 SC 425 where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: (AIR p.432, para 9) 11 '9. ....It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of r raising the present technical point.' " 16. In Madan Lal & Ors. vs. State of J & K & Ors. (1995) 3 SCC 486, similar view has been reiterated by the Bench which held that: (SCC p. 493, para 9) "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla 1986 Supp SCC 285, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a 12 petition challenging the said examination, r the High Court should not have granted any relief to such a petitioner." 17. In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576, this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p. 584, para 16) "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the 11 criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." 18. In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others, (2013) 11 SCC 309, recently a Bench of this Court following the earlier decisions held as under: (SCC p. 320, para 24) "24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents." 13 11. True it is that NSS Certificate adduced on record by private respondent namely Manoj Sharma is not on the prescribed format and is also not signed by the competent authority i.e. Director Higher Education, however, as has been noticed hereinabove from the reply filed by respondent No. 6 i.e. Principal of the school concerned, it is quite apparent that at relevant time private respondent was not only the student of the school concerned, but he was also permitted to attend the NSS camp, which fact otherwise stands substantiated with a placing on record photograph, wherein he can be seen standing with other persons in whose favour NSS Certificate stand issued by the competent authority for their having participated in NSS camp w.e.f 21.12.1999 to 310.12.1999. It is also true that afore respondent No. 6 in its reply has categorically stated that record with regard to issuance of certificate as well as copy of certificate is not available, but such fact may not be sufficient to conclude that certificate adduced on record by the petitioner along with his application for appointment against the post of Havildar Instructor/Quarter Master Havildar, in terms of advertisement issued by respondent No. 4 was fake and as such, could not have been considered for grant of one mark. 14 12. 14 12. At this stage, it would be apt to take note of instructions placed on record by learned Additional Advocate General in terms of order dated 11.10.2023 (available at page No. 176 of the paper book): “NO. EDN-HE-(18)LC-08/2023 Directorate of Higher Education Himachal Pradesh Date: the Shimla-1 2ndNov., 2023 To The Ld. Advocate General Hon'ble High Court of H.P., Shimla-1 Subject: CWP No. 55/2023 Yash Pal Vs State of H.P. Sir, I have the honour to refer to the above mentioned Civil Writ Petition, which is pending adjudication before the Hon'ble High Court. This case was listed before the Hon'ble High court on 11.10.2023, when the Hon'ble Court has directed to impart instructions in the matter on 3.11.2023. In this regard, it is submitted that as per information received from the Principal GSSS Junga, Distt. Shimla dated 21.10.23 & 27.10.23. Sh. S.K. Sharma was working as Principal of GSSS Junga on 30.12.1999. He had joined in GSSS Junga on 21.9.1998 and remained there till 20.4.2000. It has also been informed that no record is available with respect to the issuance of NSS Certificate by the then Principal, GSSS Junga, Distt. Shimla to Sh. Manoj Kumar Sharma i.e. Respondent No. 5 under proper receipt/Diary & Dispatch. As far as the matter of issuing the NSS Certificate by Principal is concerned in this regard, it is submitted that as per NSS norms a volunteer, 15 who miss the university certificate, the College authorities may issue a certificate to the NSS volunteer. The above mentioned rules are also being followed at Plus Two level and the NSS certificates are issued to the eligible NSS Volunteers. It is further submitted that as per prevailing practice and procedure the Certificate of NSS are being issued after the countersignature of Director Higher Education, Programme Coordinator, Principal and Programme Officer. However, the copies of procedure & information received from the Principal GSSS Junga enclosed. You are, requested to apprise the Hon'ble Court, accordingly on the next date of hearing ie. 3.11.23, please. Yours faithfully. Director Higher Education. Himachal Pradesh.” 13. Aforesaid instructions, if perused in its entirety, suggests that at first instance, Principal/NSSS Programme Officer of the school concerned would raise demand for issuing number of NSS Certificates from the Directorate of Higher Education, Himachal Pradesh, along with verified records and details of NSS volunteers, who have completed 240 hours of regular activities within a period of two years and have also attended one NSS Special Camp. After receipt of aforesaid demand, Directorate of Higher Education, Himachal Pradesh, shall send the demanded number of blank certificates to the Principal/NSS Programme Officer of the school 16 concerned, with the further directions to fill up the same and sign these certificates, enabling him to sign the certificates subsequently. As per information received from the Principal, Government Senior Secondary School Junga, District Solan, vide letter No. EDN-Junga(1) B (34) Court Case/2023-494 dated 24.02.2023, private respondent, Mr. Manoj Sharma, S/o Mr. Leela Dhar Sharma was enrolled as NSS Volunteer in 10+1Class for the 1998-99 and he had completed 240 hours of regular activities in the period of 2 years and attended 10 days one Annual Special Camp w.e.f 21.12.1999 to 30.12.1999. Though it has been mentioned in aforesaid instructions that Mr. S.K. Sharma was the then Principal of the Government Senior Secondary School, Junga on 30.12.1999 and he had joined afore school on 21.09.1998 and was posted as Principal till 20.04.2000, but no record is available with respect to the issuance of NSS Certificate by the then Principal to Mr. Manoj Kumar Sharma under proper receipt/Diary Despatch. Since it is quite apparent from the aforesaid instructions that private respondent was enrolled as NSS Volunteer in 10+1 Class for the year 1998-99 and he had also completed regular 240 hours of regular activities in the period of two years, coupled with the fact that during aforesaid period, Mr. S.K. Sharma, who had actually issued certificate, was posted in the school concerned, this Court is not persuaded 17 to agree with Mr. Vijay Chaudhary, learned counsel for the petitioner that very authenticity of certificate placed on record is doubtful. As has been observed hereinabove though private respondent had attended NSS Camp for a period mentioned in the certificate, but either he failed to obtain the copy of certificate in the prescribed format, which was required to be issued by the Director or the same was not issued on account of mis- communication, if any, from the office of school concerned. Though it appears that the then Principal certified, vide certificate dated 30.12.1999, that private respondent had attended the NSS Certificate w.e.f 21.12.1999 to 30.12.1999, but such information was not further sent to office of Director, enabling him to send blank certificate for filling up the details of the private respondent. It is also important to take note of certificate issued by the Principal, Government Senior Secondary School, Junga, District Shimla, thereby certifying the names of the person, who at relevant time had attended NSS camp (available at page No. 151). If the aforesaid document is perused in its entirety, it clearly reveals that petitioner along with other persons had also attended the NSS camp for the specified period and in that regard certificate was issued by the then Principal. 14. In view of detailed discussion made hereinabove, coupled with the fact that selection of the private respondent came to be laid challenge 18 by the petitioner after his having participated in the selection process, this Court is not inclined to accept the petition filed at the behest of petitioner namely Yashpal i.e. in CWP No. 55 of 2023 and as such, same is dismissed being devoid of merit. 15. Since this Court is convinced and satisfied that petitioner- Manoj Sharma in CWP No. 5046 of 2025 had attended NSS Camp w.e.f 21.12.1999 to 30.12.1999 as has been certified by the then Principal, vide certificate dated 30.12.1999, prayer made on behalf of afore petitioner to issue direction to the Director Higher Education to issue him NSS Certificate for relevant period, deserves to be allowed. 16. Consequently, in view of the above, petition bearing No. 5046 of 2025 is allowed with a direction to Director Higher Education to issue NSS Certificate on prescribed format to the petitioner for a period detailed in certificate dated 30.12.1999. Pending applications, if any, stand disposed of. May 28, 2025 (Sandeep Sharma), (sunil) Judge