IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 5937 of 2022 Date of Decision: 28.07.2025 _______________________________________________________ Surender Kumar …….Petitioner Versus State of Himachal Pradesh & others … Respondents ______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes. For the Petitioner: Mr. Vishal Singh Thakur, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General, for the respondents- State. Mr. Varun Thakur and Mr. Aakash Thakur, Advocates, for respondent No.5. _______________________________________________________ Sandeep Sharma, Judge(oral): By way of instant petition, petitioner has prayed for following main reliefs:- “ i. That an appropriate writ order or direction may kindly be issued for directing the respondents to consider the certificate of participation in sports(Annexure P-6) as submitted by the petitioner on the day of Evaluation of Documents for the purpose of awarding 3 marks as per the advertisement, in the interest of law and justice; ii. That the respondents may kindly be directed to conclude the name of the petitioner in the merit list of 1Whether the reporters of the local papers may be allowed to see the judgment? 2 selected candidates (Annexure P-5) in case the petitioner is found to be in the merit list; iii. That an appropriate writ order or direction may be issued for directing the respondents to consider the Diploma certificate dated 20.07.2020 (Annexure P-11) submitted by the petitioner as equivalent to 10+2 in view of notification dated 22.01.2018 (Annexure P-12) for the purpose of determining the eligibility of the petitioner to the post of Constable, in the interest of law and justice; iv. That the petitioner may kindly be granted the appointment to the post of Constable advertised in notice for recruitment dated 10.09.2021 in the Department of Home under the Government of Himachal Pradesh.” 2. Facts, relevant for adjudication of the case at hand, as emerge from the pleadings adduced on record by the respective parties, are that vide advertisement dated 10.09.2021, office of the Director General of Police, Himachal Pradesh(Annexure P-1) initiated the process for recruitment to the posts of Constables. Though, vide aforesaid communication, total 1334 vacancies were advertised, out of which 1243 were of General Duty Constables. 194 posts out of 1334 were allotted to District Mandi, to which District the petitioner belongs. Petitioner applied under General Unreserved quota. However, he was not permitted to participate in the process for want of essential qualification i.e. 10+2 and as such, he approached this Court by way of CWP No. 5038 of 2022, and vide order dated 2.8.2022, he was permitted to participate provisionally in the 3 evaluation/test at par with other candidates (Annexure P-7). Pursuant to afore order passed by this Court in the previous litigation initiated at his behest, petitioner appeared for documentation on 08.08.2022, whereby he was granted 57.92 marks under different heads as mentioned in the advertisement. The merit list was finalized on the basis of documentation, wherein the last candidate was shown to have secured 60.775 marks, as a result thereof, petitioner, who had secured 57.92 marks, was not included in the merit list (Annexure P- 9). 3. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Vishal Singh Thakur, learned counsel for the petitioner, is that he was wrongly not granted marks for Sports Certificate. Mr. Vishal submitted that petitioner herein ought to have been granted 3 marks on account of his having participated in the 41st Sub-Junior National Basketball Championship in terms of Clause 9(g)(b)(vi) of the advertisement (Annexure P-1), but he has been denied such marks for totally unjustifiable reasons, as a result whereof, petitioner, despite being meritorious, has been denied selection to the post of Constable. While making this Court peruse advertisement, specifically Clause 9(g)(b)(vi), learned counsel for the petitioner submitted that candidates possessing certificates in sports, as notified by 4 Department of Personnel, was required to be awarded certain marks. He submitted that for participation at the International level, a candidate ought to have been granted 4 marks, whereas petitioner, who admittedly participated in a National level Basketball Championship, was required to be given 3 marks, and had such 3 marks been awarded to him, he would have secured 60.92 marks, and in that eventuality, his name would have been included in the merit list, considering that the cut off marks in General Unreserved Category were 60.775 marks. 4. To the contrary, Mr. Vishal Panwar, learned Additional Advocate General representing the respondent-State and Mr. Varun Thakur, learned counsel representing respondent No.5, while justifying the impugned action of the respondents in not awarding 3 marks to the petitioner on account of his having possessed a National Level Certificate in the game of Basketball, vehemently argued that mere participation in a National Competition is not sufficient for awarding 3 marks, rather such marks as provided under Clause 9(g)(b)(vi) could have been granted only to such sportspersons, who had won medals in International/National and State Level Competitions. Above named counsel representing the respondents further invited attention of this Court to the corrigendum dated 29.09.2021, to state that apropos to Recruitment Notice No. PII(3) 5 Rec./Const/(1023 M+311 FM)/427/2021-18585 dated 10.09.2011 for the post of Constable published in various newspapers, a corrigendum was issued notifying therein that at para 9(e), stage-4, pertaining to Physical Efficiency Test (PET), the number of permissible attempts in the Board Jump event shall be three and at Para 9(g), Stage 6 sub-para (b)(vi), the sentence may be read as ‘the category of sports would be as mentioned in the Department of Personnel (Appointment-II) letter dated 22.10.2018(reference –vi), as amended from time to time’. While referring to aforesaid documents, learned counsel for the respondents, argued that condition as contained in Clause 9(g)(b)(vi) is not to be read in isolation, but in conjunction with aforesaid corrigendum. If it is so, letter dated 22.10.2018 (Annexure R-5 available at page No.261 of the paper book) clearly suggests that petitioner, for his having participated in National Basketball Championship, could not have been granted 3 marks. 5. Learned counsel representing respondent No.5 further submitted that though petitioner herein is not entitled to any marks on account of his having participated in National Basketball Championship, but if this Court arrives at a conclusion that 3 marks are required to be given to the petitioner, the private respondent, who at the relevant time was selected against the post in question, coupled 6 with the fact that he has been working against such post for the last three years, cannot be made to suffer, because there was no fault, if any, on his part in the selection, rather the same was done by following due process of law. 6. I have heard learned counsel for the parties and gone through the record carefully. 7. Having carefully perused the averments contained in the pleadings adduced on record by the respective parties and having heard learned counsel for the parties, this Court finds that the entire controversy in the case at hand, is with regard to awarding of marks qua petitioner’s having possessed National Level Basketball Championship certificate. Clause 9(g)(vi) of the advertisement (Annexure P-1) clearly provides that candidates possessing certificates in sports, as notified by the Department of Personnel, shall be awarded marks. A candidate having participated in International level shall be awarded 4 marks, whereas a candidate, who participated at National Level shall be awarded 3 marks, and for participation at the State level 2 marks are to be awarded. 8. Careful perusal of communication dated 22.10.2018 (Annexure R-5), available at page 261 of the paper book, which has been heavily relied upon by the respondents, is not applicable in the case at hand for the reason that afore communication deals with 7 reservation to the distinguished sportspersons in various services under the Government instructions and vide afore communication, the Government decided to include henceforth “Karate” in place of ‘Karate-DO’ game at Sr. No.22 in Annexure “A” appended to the instructions dated 28.05.1999 and 02.08.2008, wherein admittedly Basketball already stands included. It is none of the case of the respondents that Basketball is not included in the list of recognized sports, rather, their specific case is that since petitioner merely participated in National Competition, he could not have been granted three marks, rather for getting three marks, candidate concerned should have won a medal in one of the recognized sports. However, such plea taken by the respondents is totally contrary to the advertisement as well as instructions issued by Government of Himachal Pradesh from time to time. 9. Though, respondents placed heavy reliance upon communication dated 22.10.2018 (Annexure R-5), but as has been noticed hereinabove, the same specifically deals with the issue of reservation to the distinguished sportspersons in various services. However, in the instant case, there is no dispute, if any, with regard to reservation for the category of sportspersons, rather petitioner herein has never applied under sports quota. Petitioner herein applied under General Unreserved quota, wherein he, besides marks on account of 8 academic qualification, physical efficiency test, ought to have been given some marks in terms of Clause 9(b), wherein certain marks have been prescribed on account of sports certificate, if any, possessed by the candidate. 10. At this stage, it would be apt to take note of Clause 9 (g) (b) herein below:- (g) Stage - 6 Scrutiny of documents and award of marks for certificates (15 Marks): Stage 6 shall be in two parts: (a) Scrutiny of all documents related to eligibility for the post of Constables. The burden of producing documents determining the eligibility of the candidates shall rest on the applicant. The absence of any certificate which entitles the candidate to be considered as special class/ category, shall make the candidate ineligible for such consideration. (b) Evaluation with respect to 15 marks, on account of special certificates earned by the candidates, shall be carried out as per the following criteria as elaborated in Reference –iii Sr.No. Criteria Maximum marks (i) Weightage for the minimum educational qualification as per the provision of sub- rules (1) and (2) of rule 8 {percentage of marks obtained in the educational qualification would be multiplied by 0.025. For example, (a) If the candidate has secured 50% marks in the required educational qualifications, he/she will be allowed 1.25 marks (50 x 0.025= 1.25) (b) If the candidate has secured 60% marks in the required educational qualifications, he/she will be allowed 1.50 marks (60 x 0.025= 1.50) (c) And so on. 2.5(Two & a half) (ii) Belonging to notified Backward Area or Panchayat, as the case may be. To be notified by the competent authority 1(One) (iii) Landless family/ family having land less than 1 Hectare. To be certified by the concerned Revenue Authority. 1(One) 9 (iv) NSS (at least one year) = 1 mark per year completed (up to a maximum of 4). NCC Certificates will be given a weightage of: (a) NCC (C) certificate = 4, (b) NCC (B) Certificate= 2 (c) NCC (A) certificate = 1. A Candidate, who has all these certificates, will be given marks only for NCC (C) Certificate Bharat Scout and Guide =1 (minimum eligibility is one year) 4 (Four) (v) Candidate possessing LMV driving license. 1.5 (one and a half) (vi) Candidate possessing following certificates in Sports as notified by Department of Personnel will be awarded marks as follows: a) International Level = 4 Marks b) National Level =3 Marks c) State level =2 Marks The category of sports would be as mentioned in 4 (Four) (vii) Medal winner of International/Olympic/National level sports competition as mentioned in Reference - v. 1 (One) Total Total 11. Clause 9(g), as reproduced hereinabove, provides evaluation with respect to 15 marks on account of special certificates earned by the candidates. Clause 9(g)(vi) nowhere suggests that a candidate possessing certificates in Sports as notified by Department of Personnel will be awarded marks only in the event of their having secured a medal or participated three times, rather it clearly provides that a candidate possessing a certificate as detailed in Clause 9(g)(vi) shall be awarded marks, as detailed therein. It appears that respondents have confused the entire issue by unnecessarily bringing the issue of reservation under the sports category, which was not the 10 issue at all in the case at hand. Neither the petitioner nor private respondent applied under sports quota and, both applied under General Unreserved quota. Petitioner possessed a National level certificate on account of his having participated in a Basketball Championship and, as such, he ought to have been awarded 3 marks for that, whereas private respondent never possessed any certificate of his having participated in a National/International or State level championship and as such, was not granted any mark qua the same. However, on the basis of his overall marks, he was able to secure place in final merit list over and above the petitioner, who by way of present petition has claimed that he has been wrongly not awarded 3 marks on account of his having participated in a National Level Basketball Championship. 12. No plausible explanation ever came to be rendered on record on behalf of the respondents for not grating 3 marks to the petitioner for his having participated in the National Level Basketball Championship, rather an attempt came to be made to defeat the rightful claim of the petitioner on the ground that certificates submitted by the petitioner were not accepted by the District Recruitment Committee and the representative from the District Youth Services & Sports Department, Office Mandi. 11 13. Though, having carefully perused the certificate adduced on record by the petitioner, prima facie this Court found the same to be issued by the competent authority but yet before arriving at a definite conclusion directed Superintendent of Police, Mandi to file an affidavit that why afore certificate was not accepted. In the aforesaid background, this Court passed order dated 23.06.2025, which reads as under:- “Careful perusal of reply filed by respondents No.1 to 4 through Superintendent of Police Mandi, District Mandi, Himachal Pradesh, suggests that certificates for participation of Sub Junior National Basketball Championship and National Athletics Meet for under-14 years, submitted by the petitioner alongwith his application were not accepted by the District Recruitment Committee and a representative from Youth Services & Sports Department Office, Mandi. 2. Though having carefully perused aforesaid affidavit, prima facie, this Court finds the same to be issued by the competent authority, but before arriving at a definite conclusion, let Superintendent of Police, Mandi, file an affidavit that why afore documents were not accepted. 3. At this juncture, Mr. Anup Rattan, learned Additional Advocate General, invited attention of this Court to page 65 of paper book to state that during pendency of the case at hand, instructions were placed on record under the signature of Superintendent of Police Mandi, perusal whereof reveals that Mr. Lokesh Sharma, Badminton Coach, was nominated as Co- pted member to assist the District Recruitment Committee to verify the genuineness 12 and lawfulness of the Sports documents certificates and during verification of the same, certificate produced by the petitioner was found to be invalid and as such, he was not awarded any marks qua the same. Neither it is apparent from the reply filed by the respondents nor from afore communication that for what reasons, certificates produced by the petitioner were found to be invalid and as such, clarification, as sought for, in earlier part of the order, is essential for adjudication of the case at hand. 4. Needful, in terms of the instant order, shall be positively done within one week”. 14. In compliance to aforesaid order, Superintendent of Police, Mandi filed affidavit, which is available at page No.234 of the paper book. At this stage, it would be apt to take note of following paras of aforesaid affidavit herein below:- “3. That the petitioner, Shri Surender Kumar, appeared before the District Recruitment Committee on 08.08.2022 for evaluation of documents in connection with the recruitment process held during the year 2022. 4. That during the evaluation, the petitioner submitted:- (a) Certificate of participation in 41st Sub Junior National Basketball Championship held from 22.11.2014 to 28.11.2014(copy annexed as Annexure R-1), and (b) Certificate of Participation (not medal winner) in National Athletics Meet held from 08.01.2015 to 12.01.2015 under the Under-14 age category (Copy annexed as Annexure R-2). 13 5. That as per the applicable government instructions and notifications vide notification No. PER(AP)-C-F(1)-3-2001 dated 22.01.2002 of Departmental of Personnel, Government of HP(Copy annexed as Annexure R-3) and Notification No. Home(A)A(3)-2/2020 dated 05.08.2021 of Home Department, Govt. of HP, (copy annexed as Annexure R-4 read with Letter No.PER(AP)-C-F(1)- 1/2011 dated 22.10.2018 of Department of Personnel (as amended)(copy annexed as Annexure R-5), marks for sports achievements are awarded only in the following cases:- (a) Medal winners in recognized Junior National Championship, or (b) At least three time participation in National or Senior National Championship. 6. That the certificates submitted by the petitioner were for sub junior level and under-14 category events, which do not fulfill the above criteria. Consequently, they were not considered valid for the award of marks.” 15. No plausible justification has been rendered on record qua non- grant of 3 marks to the petitioner for his having participated in National Level Basketball Championship, rather an attempt has been made to defeat the claim of the petitioner on the basis of notification dated 22.01.2002 issued by Department of Personnel, Government of Himachal Pradesh, which is not at all applicable in the case at hand as has been discussed in the earlier part of the judgment. Afore notification deals with 3 % reservation to the sportspersons. However, 14 as has been taken note hereinabove, petitioner never applied under distinguished sportsperson quota, rather he applied under General Unreserved quota, wherein he, admittedly, was entitled to certain marks under evaluation criteria provided under Clause 9(g)(b)(vi). Otherwise also, this Court finds that no sports quota was ever provided under the advertisement. If it is so, notifications being pressed into service by the respondents, which specifically deal with the issue of 3% reservation for distinguished sportspersons, could not have been made applicable in the case at hand to deny rightful claim of the petitioner. Once it is not in dispute that petitioner has participated in the National Level Basketball Championship, he ought to have been granted 3 marks, to which he is otherwise very much entitled. In case 3 marks are granted to the petitioner for his having participated in the National Level Championship, his total marks would come to 60.92, which are admittedly higher than the cut off marks i.e., 60.775. On account of petitioner getting 3 marks for his having possessed a National Level Basketball certificate, he will get 3 additional marks, which may result in the ouster of the private respondent, who secured 60.775. 16. Now next question, which arises for consideration, is whether the private respondent, who had no role to play in awarding of marks, coupled with the fact that pursuant to his selection against 15 the post in question, he has been serving in the Department for more than three years, can be ousted/displaced at this stage. Though, this Court is of the definite view that grave injustice has been done to the petitioner on account of non-consideration of certificate of sports certificate submitted by him at the time of his selection, but this Court cannot lose sight of the fact that entire confusion arose on account of misinterpretation of the relevant rules as well as notifications pressed into service by the respondents. If it is so, private respondent, who is in service for more than three years, cannot be made to suffer, especially when there is nothing on record to show that his selection was on account of some misrepresentation. 17. Reliance in this regard is placed upon the judgment passed by Hon'ble Apex Court in case titled Vikas Pratap Singh and others Versus State of Chhattisgarh and others, (2013) 14 SCC 494, wherein taking note of the fact that the appellants therein had successfully undergone training and had been serving the State for more than three years, were allowed to continue in service even though their selection was interfered with. Para 28 of the judgment, being relevant, is extracted hereinafter:- “28. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent State for more than three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and 16 their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list.” 18. Similar situation arose in Anmol Kumar Tiwari and others Versus State of Jharkhand and others, (2021) 5 SCC 424. The Apex Court confirmed the decision of the High Court which had directed re-instatement of the writ petitioners after taking into account the fact that though they were beneficiaries of the select list that was prepared in an irregular manner, but were not responsible for the irregularities committed by the authorities in preparation of the said select list. Relevant para from the judgment reads as under:- “11. Two issues arise for our consideration. The first relates to the correctness of the direction given by the High Court to reinstate the Writ Petitioners. The High Court directed reinstatement of the Writ Petitioners after taking into account the fact that they were beneficiaries of the select list that was prepared in an irregular manner. However, the High Court found that the Writ Petitioners were not responsible for the irregularities committed by the authorities in preparation of the select list. Moreover, the Writ Petitioners were appointed after completion of training and worked for some time. The High Court was of the opinion that the Writ Petitioners ought to be considered for reinstatement without affecting the rights of other candidates who were already selected. A similar situation arose in Vikas Pratap Singh case, where this Court considered that the Appellants-therein were appointed due to an error committed by the Respondents in the matter of 17 valuation of answer scripts. As there was no allegation of fraud or misrepresentation committed by the Appellants therein, the termination of their services was set aside as it would adversely affect their careers. That the Appellants therein had successfully undergone training and were serving the State for more than 3 years was another reason that was given by this Court for setting aside the orders passed by the High Court. As the Writ Petitioners are similarly situated to the appellants in Vikas Pratap Singh case, we are in agreement with the High Court that the Writ Petitioners are entitled to the relief granted. Moreover, though on pain of Contempt, the Writ Petitioners have been reinstated and are working at present.” 19. Since this Court is convinced that private respondent was not at fault, rather it is the department, which has wrongly offered appointment to him, it would be too harsh, if he is ordered to be removed from the service by the respondent-Department itself. At the same time, petitioner also cannot be denied relief prayed for in the instant petition, since it stands duly established on record that he ought to have been granted 3 marks for his having participated in the National Level Basketball Championship. 20. Though, in the present case, no issue with regard to petitioner’s educational qualification and eligibility has been raised, but it is not in dispute that prior to filing the petition at hand, petitioner by way of CWP No. 5038 of 2022 had approached this Court, seeking therein direction to the respondents to consider him equivalent to other candidates for the purpose of the recruitment in 18 question. In afore petition, petitioner claimed that he has passed Diploma in Technical Education in consonance with notification issued by the State (Annexure P-12), which is equivalent to 10+2 for the purpose of employment under the State. The Division Bench of this Court vide judgment dated 27.07.2022 titled Aman Sharma vs. State of Himachal Pradesh and others passed in CWP No. 2594 of 2022, has already held that in terms of notification dated 22.01.2018, the Diploma course undertaken by the petitioner is to be treated equivalent to 10+2 in the Arts Stream for the purpose of employment in various Departments of the State of Himachal Pradesh. In view of aforesaid mandate given by Division Bench of this Court, which has attained finality, respondents herein are duty bound to treat the petitioner as possessing the minimum qualification of 10+2 for the advertised post, if it is so, his candidature against the post in question could not have been rejected on the ground of possession of the Diploma in Technical Education, which otherwise, in terms of notification, as noticed hereinabove, has been held to be equivalent to 10+2. 21. Consequently, in view of the detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petition and accordingly same is allowed. The respondents are directed to offer appointment to the petitioner against 19 the post of Constable advertised on 10.09.2021 (Annexure P-1), but while doing so, appointment already given to the private respondent shall not be disturbed, rather same shall remain protected. Since petitioner has not worked against the post in question till date, he shall not be entitled for monetary benefits, but for the period, he was unable to join on account of discrepancies, as discussed hereinabove, shall be considered on notional basis for the purpose of seniority and continuity. Pending applications, if any, also stand disposed of. (Sandeep Sharma), Judge July 28, 2025 (shankar)