IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 15529 of2024 Date of Decision: 16.06.2025 _______________________________________________________ Smt. Harsha Rani …….Petitioner Versus State of Himachal Pradesh & others … Respondents ______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. Karan Veer Singh, Advocate. For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol and Mr. B.C.Verma, Additional Advocate Generals and Mr. Ravi Chauhan, Deputy Advocate General. _______________________________________________________ Sandeep Sharma, Judge(oral): By way of instant petition, petitioner has prayed for following main relief:- “That the writ in the nature of mandamus or any other appropriate writ, orders or directions may kindly be passed directing the respondents to grant the appointment to the petitioner w.e.f. 01.09.2015 i.e. the date on which she should have been appointed on the post of Constable (GD) and the other incumbents, who participated in the same selection process have been granted the said benefit, alongwith all consequential benefits or in alternate on notional basis.” 2. Precisely, the facts of the case as emerge from the record are that petitioner herein successfully qualified in recruitment test of Constable held in District Sirmour, Himachal Pradesh in the 1Whether the reporters of the local papers may be allowed to see the judgment? 2 year, 2015 and as such, vide communication dated 25.01.2017 (Annexure P-2) she was offered appointment against the post in question, but before she could join, one unsuccessful candidate namely, Ravina filed Original Application bearing No.2511 of 2015 titled as Ravina vs. State of Himachal Pradesh and others before erstwhile H.P. Administrative Tribunal, laying therein challenge to the selection of the petitioner herein. Vide order dated 12.08.2015, Tribunal below stayed the appointment of the petitioner. Subsequently, Tribunal below dismissed the aforesaid original application. After dismissal of original application, respondent- Department took up the matter with Inspector General of Police, Northern Range, Dharamshala, Himachal Pradesh, the then, Chairman Recruitment Board SR (776) Posts, who directed the Office of Superintendent of Police, Sirmour to offer appointment to the petitioner against the post of Constable immediately (Annexure R-2). Pursuant to aforesaid direction issued by Chairman Recruitment Board, as detailed hereinabove, petitioner was selected for the post of Constable under OBC/IRDP category against 776 posts and appointment was offered by the Commandant 1st IRBn Bangarh, District Una, Himachal Pradesh, but in the year 2017. 3. Precisely, the grouse of the petitioner as has been highlighted in the petition and further canvassed by Mr. Karan Veer 3 Singh, learned counsel for the petitioner, is that since petitioner stood selected against the post in question in the year, 2015 and Original Application having been filed by unsuccessful candidate Ravina was dismissed in the year, 2017, there was no occasion, if any, for the respondents to give appointment to the petitioner against the post in question in the year, 2017, rather she ought to have been given appointment against the post in question pursuant to her selection in the year, 2015. 4. Respondents have filed reply to the petition, wherein facts, as have been noticed hereinabove, have been not disputed, rather attempt has been made to refute the claim of the petitioner on the ground that since selection of the petitioner made in the year, 2015 was stayed by learned Tribunal below vide order dated 12.08.2015 and original application filed by unsuccessful candidate namely, Ravina was dismissed in the year, 2017, there was no occasion, if any, for the respondents to offer appointment to the petitioner w.e.f. 2015, especially when she never worked against the post in question w.e.f. 2015 to 2017. 5. Having heard learned counsel representing the parties and perused material available on record, this Court finds that petitioner herein participated in selection process initiated by the respondent-Department in the year, 2015 and she being successful 4 candidate came to be offered appointment vide letter dated 25.01.2017 (Annexure P-2) against the existing vacancy of First India Reserve Battalion, Bangarh, District Una, Himachal Pradesh in the pay scale of Rs. 5910-20200 with Grade pay of Rs. 1900 i.e. Rs.7810. However, before petitioner could join pursuant to appointment letter issued in her favour, unsuccessful candidate namely, Ravina laid challenge to her appointment before erstwhile Tribunal by way of Original Application, as detailed hereinabove. Though, at first instance, Tribunal below stayed the appointment of the petitioner vide order dated 12.08.2015, but it is not in dispute that subsequently Original Application having been filed by unsuccessful candidate, named hereinabove, was dismissed, meaning thereby appointment of the petitioner made in the year, 2015 was upheld for all intents and purposes. However, interestingly respondents after disposal of Original Application filed by unsuccessful candidate, named hereinabove, offered appointment to the petitioner, but w.e.f. 2017, whereas she stood selected against the post in question in the year 2015, as is evident from the appointment letter dated 25.01.2017 (Annexure P-2). 6. No doubt, from 2015 till 25.01.2017, petitioner never worked against the post in question, but that cannot be a ground to reject the rightful claim of the petitioner for the reason that though 5 petitioner remained always available for appointment pursuant to her selection in 2015, but she was unable to work on account of stay granted by Tribunal below in original application filed by Ms. Ravina. Since original application filed by person, named hereinabove, was ultimately dismissed, respondents ought to have given appointment to the petitioner w.e.f. 2015, especially when petitioner stood selected in the year 2015. For the compelling circumstances, as detailed hereinabove, petitioner was virtually prevented from joining her duty pursuant to her selection in 2015. Had petitioner been offered appointment and she had failed to join, respondents would have been right in their action but since petitioner was prevented to join on account of stay granted by the erstwhile tribunal, she cannot be allowed to suffer. 7. Case at hand is a fit case where Principle of “actus Curiae Neminem Gravabit” indicating that no one should be prejudiced because of act of the Court, would apply. No doubt in the case at hand, at first instance Tribunal below taking note of the plea raised by unsuccessful candidate proceeded to stay the appointment of the petitioner, but subsequently having taken note of the reply filed by the respondents dismissed the original application, meaning thereby that the appointment of the petitioner to the post was held to 6 be legal and valid. If it is so, claim of the petitioner for treating her appointee of 2015 for service benefits cannot be defeated. 8. In similar facts and circumstances, Division Bench of this Court vide judgment dated 19.11.2014 passed in LPA No.170 of 2014, titled Shri Balak Ram vs. State of Himachal Pradesh and others held as under:- “7. It is admitted that the appellant-writ petitioner was denied his rights and Smt. Kala Devi was appointed illegally. Had the respondents not appointed Smt. Kala Devi illegally at the particular point of time, i.e. on 20th August, 1997, the appellant-writ petitioner would have been appointed and would have been in the employment right from that date, but he was deprived of his legitimate rights by making illegal appointment order. 8. The Apex Court in a case titled as Sanjay Dhar versus J & K Public Service Commission and another, reported in (2000) 8 Supreme Court Cases 182, has dealt with the issue and held that when a candidate is deprived of appointment illegally, he is deemed to have been appointed right from the same date. It is apt to reproduce paras 14 to 16 of the judgment herein: “14. ….........As the appellant participated in the process of selection protected by the interim orders of the High Court and was also successful having secured third position in the select list, he could not have been denied appointment. The appellant is, therefore, fully entitled to the relief of his appointment being calculated w.e.f. the same date from which the candidates finding their place in the order of appointments issued pursuant to the select list prepared by the J&K PSC for 1992- 93 were appointed and deserves to be assigned notionally a place in seniority consistently with the order of merit assigned by the J&K PSC. 15. We have already noticed the learned Single Judge having directed the appellant to be appointed on the post of Munsif in the event of his name finding place in the select list subject to the outcome of the writ petition which order was modified by the Division Bench in LPA staying the order of the learned Single Judge but at the same time directing one vacancy to be kept reserved. The High Court and the Government of J&K (Law Department) were not justified in bypassing the judicial order of the High Court and making appointments exhausting all available vacancies. The right of the appellant, if otherwise sustainable, cannot be allowed to be lost merely because of an appointment 7 having been made wittingly or unwittingly in defiance of the judicial order of the High Court. 16. For the foregoing reasons the appeal is allowed. The judgment under appeal is set aside. It is directed that the appellant shall be deemed to have been appointed along with other appointees under the appointment order dated 6-3-1995 and assigned a place of seniority consistently with his placement in the order of the merit in the select list prepared by J&K PSC and later forwarded to the Law Department. During the course of hearing the learned senior counsel for the appellant made a statement at the Bar that the appellant was interested only in having his seniority reckoned notionally in terms of this order and was not claiming any monetary benefit by way of emoluments for the period for which he would have served in case he would have been appointed by order dated 6-3-1995. We record that statement and direct that the appellant shall be entitled only to the benefit of notional seniority (and not monetary benefits) being given to him by implementing this order. The appeal is disposed of accordingly. The contesting respondents shall pay the appellant costs quantified at Rs. 5,000/- .” 9. A learned Single Judge of this Court in a case titled as Hem Chand versus State of H.P. & others, reported in 2014 (3) Him L.R. 1962, has taken the same view. It is apt to reproduce paras 3 and 4 of the judgment herein: “3. Admittedly, the appointment of the petitioner was delayed for no fault of his and came to be appointed only in the year 2009, that too after the intervention of this Court. The result of delayed appointment of the petitioner is that he has been paid less salary and denied the seniority over a long period of time. It has been consistently opined that in case a candidate is wrongly denied appointment for no fault on his part, he cannot be denied appointment from due date and consequential seniority. Reference in this regard can conveniently be made to 1996 (8) SCC 637, Pilla sitaram Patrudu & others vs. Union of India and others, 2000 (8) SCC 182 Sanjay Dhar vs. J&K Public Service Commission & another, 1991 (6) Vol. 76, Services Law Reporter 753, Hawa Singh Sangwan vs. Union of India & others and 1996 (6) vol. 116, Services Law Reporter, 335, Hawa Singh and others vs. The Haryana State Electricity Board. Moreover, it is not the case of the respondents that the petitioner was not recommended to be appointed on 26.6.2004 but the only ground taken is that it was the Pradhan, Gram Panchayat Sawindhar, Tehsil Karsog, who delayed the appointment of the petitioner. This is the precise reason that the petitioner is entitled for the seniority from the date of offer of appointment, as held by the Division Bench of this Court in similar circumstances, in case titled as Chatter Singh vs. State of H.P. & others, CWP No. 188 of 2012-I:- “3. No doubt, the petitioner joined duty only on 13.5.2003. But in his favour admittedly there is an order by the 8 Appointing Authority on 8.8.2002 to give appointment, as has been noted by the Tribunal in Annexure P-1, order. It is that order, which has been upheld by the Tribunal and the direction issued by the Tribunal is for implementing the said order. Therefore, for all purposes, the petitioner shall be deemed to be appointed on 8.8.2002, on the date admittedly the petitioner was directed to be appointed by the Sub Divisional Magistrate. However, taking note of the fact that the petitioner has joined duly on 13.5.2003 after the order was issued to him, the entitlement of the petitioner for actual monetary benefit shall be only from 13.5.2003. In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to be appointed in the post of Gramin Vidya Upasak on 8.8.2002 for all purposes; but from 8.8.2002 to 13.5.2003, the benefits shall only be notional and from 13.5.2003, the petitioner shall be entitled to all monetary benefits.” 4. In view of the exposition of the law referred to above, the petitioner is entitled to be treated as having been appointed as a Part Time Water Carrier at Government Primary School Alyas, Gram Panchayat, Sawindhar, Karsog-II, District Mandi from 30.6.2004, pursuant to the recommendation of the Government of H.P., as per order dated 26.6.2004 for the purpose of seniority. However, the entitlement of the petitioner for actual monetary benefits shall be only from 9.6.2009. In order to avoid any ambiguity, it is made clear that the petitioner shall be deemed to be appointed as Part Time Water Carrier from 30.6.2004 for all purposes, but from 30.6.2004 to 9.6.2009, the benefits shall only be notional and w.e.f. 9.6.2009, the petitioner shall be entitled to all monetary benefits.” 10. Having said so, we are of the considered view that the impugned judgment needs to be modified by providing that the appellant-writ petitioner is entitled to seniority notionally (not monetary benefits) right from the date Smt. Kala Devi was appointed, i.e. 20th August, 1997.” 9. Consequently, in view of detailed discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petition and accordingly same is allowed. Date of appointment of the petitioner shall be treated as 01.09.2015 when candidates of same selection process were appointed. Petitioner shall be entitled to all service benefits except actual financial benefits. 9 Petition stands disposed of accordingly alongwith all pending applications. (Sandeep Sharma), Judge June 16, 2025 (shankar)