IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.10169 of 2024 Date of Decision: 11.12.2025 _______________________________________________________ Ms. Kajal Mehra …….Petitioner Versus State of Himachal Pradesh & another … Respondents _______________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes. For the Petitioner: Mr. Sanjeev Bhushan, Senior Advocate with Mr. Sparsh Bhushan, Advocate. For the Respondents: Mr. Rajan Kahol, Additional Advocate General. ____________________________________________________ Sandeep Sharma, Judge(oral): Petitioner herein, who at present is working as Staff Nurse in the Department of Medical Education, Himachal Pradesh, is aggrieved of office order dated 31.08.2024 (Annexure P-12), issued under the signatures of Director Health Services, Himachal Pradesh, whereby appointment given to her on contract basis (batch-wise under OBC-BPL category) vide Directorate office order dated 16.03.2022 came to be withdrawn on the ground that she was not eligible to be considered for appointment in the batch of 2011. 2. Briefly stated facts as emerge from the pleadings adduced on record by the respective parties are that vide communication dated 21.02.2022, Health and Family Welfare Department, Himachal Pradesh issued schedule of counselling for 1Whether the reporters of the local papers may be allowed to see the judgment? 2 the post of Staff Nurses through batch-wise on contact basis. In total 89 posts came to be notified for counselling, out of which, 3 posts were reserved for OBC-BPL category. Petitioner herein, who pursuant to aforesaid counselling schedule, had applied directly appeared for counselling on 08.03.2022. She was given appointment against one seat reserved for OBC-BPL category vide appointment letter dated 16.03.2022(Annexure P-7). Pursuant to issuance of aforesaid appointment letter, petitioner joined at Dr. RPGMC, Tanda. After two years of appointment, respondents issued office order dated 28.03.2024(Annexure P-8), thereby ordering withdrawal of appointment letter dated 16.03.2022 issued in favour of the petitioner on the ground that she on account of her having acquired necessary qualification required for the post of Staff Nurse in December, 2014 could not have been considered against the post notified for the batch of 2011. Since no opportunity of being heard was ever afforded to the petitioner before passing order dated 28.03.2024, she approached this Court by way of CWP No. 2795 of 2024, titled Ms. Kajal Mehta vs. State of Himachal Pradesh and others, which came to be allowed vide order dated 04.04.2024(Annexure P-9), whereby this Court, while setting aside the order dated 28.03.2024, reserved liberty to the respondents to issue show cause notice to the petitioner and thereafter proceed with the matter in accordance with law. 3 3. Pursuant to afore order passed by this Court, respondents served show cause notice dated 09.04.2024 upon the petitioner (Annexure P-10), thereby calling upon her to explain that why appointment letter issued in her favour is not withdrawn for the reasons stated in the show cause notice. Though, by way of reply to the show cause notice dated 25.05.2024(Annexure P-11) petitioner explained the circumstances that why appointment letter issued in favour cannot be withdrawn, but fact remains that such reply of her was not considered to be merit worthy and as such, vide office order dated 31.08.2024, Department ordered for withdrawal of appointment letter dated 16.03.2022, whereby petitioner was given appointment against the post of Staff Nurse. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein for following main relief:- “ That an appropriate writ, order or directions may kindly be issued and the impugned order Annexure P-12 dated 31.08.2024 may kindly be quashed and set aside with further directions to the respondents to allow the petitioner to continue work as Staff Nurse including her regularization, since services of all other appointment Staff Nurse alongwith the petitioner have been regularized by further allowing all consequential benefits of pay seniority, etc., in the interest of law and justice.” 4. In nutshell, case of the petitioner as has been highlighted in the petition and further canvassed by Mr. Sanjeev Bhushan, learned Senior Counsel duly assisted by Mr. Sparsh 4 Bhushan, learned counsel for the petitioner, is that though petitioner was not eligible to be considered against the post of Staff Nurse notified for 2011 batch, but once there is nothing on record to suggest that there was any misrepresentation or fraud on the part of the petitioner, coupled with the fact that Selection Committee fully knowing that petitioner has acquired requisite qualification for the post in the year, 2014, recommended her name for appointment against the post of Staff Nurse, there was no occasion, if any, for the respondents to order withdrawal of her appointment. While making this Court peruse pleading adduced on record by the respective parties as well as documents annexed therewith, Mr. Bhushan, attempted to persuade this Court to agree with his contention that in past also such mistakes were committed by the respondent- Department. He submitted that prior to issuance of counselling schedule vide communication dated 21.02.2022 (Annexure P-6), respondents had invited candidates from the batch upto December, 2017 for selection to the post of Staff Nurse, but despite petitioner having cleared the examination of B.Sc Nursing, which is requisite qualification for the post in question, she was not considered. He further submitted that again in the year 2021, 38 posts of Staff Nurses on batch-wise basis were filled up, out of which, two posts were reserved for OBC-BPL category. He submitted that in afore selection process, candidates, upto December, 2014, were considered, but for 5 no fault of the petitioner, she was not again considered at relevant time, as a result thereof, petitioner herein, who was fully eligible to be considered against the post in question in 2014 batch, was left out. Mr. Bhushan, further submitted that bare perusal of reply filed by the respondents clearly suggest that in past also candidates belonging to other batches were given appointment beyond the cutoff date, if it is so, no discrimination, if any, can be meted to the petitioner, who otherwise is not at fault. 5. Lastly, Mr. Bhushan submitted that at the time of selection of the petitioner against the post in question no candidate belonging to the category of OBC-BPL was available, as a result thereof, Selection Committee, after having found petitioner eligible for the post in question, recommended her name. While placing reliance upon the judgment passed by Hon'ble Apex Court in Anmol Kumar Tiwari and others Versus State of Jharkhand and others, (2021) 5 SCC 424, learned Senior counsel for the petitioner submitted that since petitioner herein was not responsible for mistake, if any, committed by Selection Committee, while recommending her case, coupled with the fact that she has been serving against the post in question for more than three years, it may not be in the interest of justice to throw her out of service. 6. To the contrary, Mr. 6. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while justifying the impugned action of the 6 respondents, submitted that since factum with regard to wrong selection of the petitioner against the batch of 2011 came to the fore that too on the basis of complaint received from the Vigilance Department, no illegality can be said to have been committed by the respondents, while ordering withdrawal of the appointment letter issued in favour of the petitioner. While referring to the reply filed by the respondents, Mr. Kahol, learned Additional Advocate General stated that mistakes, if any, committed during the earlier selection process does not give the petitioner any right or space to get her such appointment justified in any manner. He submitted that as per specific conclusion drawn by the Vigilance authorities vide its report furnished vide letter dated 12.11.2024(Annexure R-2/VI), the ineligible candidate i.e. petitioner has wrongly been given the appointment, which error has been rectified by withdrawing the offer of the appointment. 7. Having heard learned counsel representing the parties and perused the material adduced on record, this Court finds that vide communication dated 21.02.2022, Health and Family Welfare Department issued counselling schedule for the post of Staff Nurse through batch-wise on contract basis. Though, batch wise selection is primarily done on the basis of names recommended by the respective Employment Exchange, but the persons belonging to respective batches can also apply directly, petitioner herein, who admittedly 7 possessed requisite qualification for the post in question applied directly for one post reserved for category of OBC-BPL. The Selection Committee, after having taken note of her certificates of educational qualification, recommended her name for appointment against the post of Staff Nurse vide office order dated 16.03.2022 (Annexure P- 7). Pursuant to aforesaid appointment letter, petitioner joined the Department. It is only after expiry of two years of her being offered appointment that a complaint came to be lodged with the Vigilance Department that petitioner herein has been wrongly given appointment against the post notified for the batch of 2011. 8. Though, at first instance, respondents without affording an opportunity of being heard to the petitioner, ordered for withdrawal of appointment letter, but with the intervention of this Court, such order was set-aside and thereafter respondents after having served petitioner with show cause notice ultimately ordered for withdrawal of appointment vide communication dated 31.08.2024, which is laid challenge in the instant proceedings. 9. No doubt, as per the procedure posts notified for particular batch can be filled up from the candidates of that batch only, meaning thereby if posts were advertised for 2011 batch, candidates, who had acquired requisite qualification for the post in question up till that date, only could have been considered. However, in the instant case, petitioner, who had applied directly, came to be 8 considered against one post reserved for OBC-BPL for the batch of 2011. Reply filed by the respondents clearly reveals that against three posts of Staff Nurses reserved for OBC-BPL, four candidates appeared, out of which, two candidates were of 2010 batch, one was of 2017 batch and petitioner herein was of 2014 batch. Two posts reserved for afore category were filled up from the candidates belonging from 2010 batch ,but since petitioner herein was senior to other person, who was of 2017 batch, third post was offered to her. 10. It appears that besides two candidates belonging to 2010 batch, no candidate of aforesaid category was available for the post to be filled up from the batches 2011 to 2014 except petitioner. Though, there appears to be merit in the contention of learned Additional Advocate General that in afore eventuality post reserved for 2010 batch was to be kept vacant, but Selection Committee proceeded to recommend the name of the petitioner, who admittedly belongs to the batch of 2014. If the reply filed by the respondents is perused in its entirety, it nowhere suggests that petitioner herein committed any fraud or misrepresentation, rather she strictly in terms of the advertisement applied directly for one post of Staff Nurse reserved for the category of OBC-BPL. Fault/mistake, if any, appears to have been committed by the Selection Committee, who while recommending the name of the petitioner, failed to take note of the fact that seat against which name of the petitioner recommended can only be filled up from 9 the candidate belonging to the batch of March 2011, whereas petitioner had admittedly acquired essential qualification for the post in question in December, 2014. 11. There is another aspect of the matter, no loss can be said to have been caused to public exchequer inasmuch the post was vacant, there was no other contender for the post, who can be said to have been wronged on account of irregular selection of the petitioner. Further the petitioner has discharged her duties and served the public and therefore, salary drawn by her is against sanction post, after rendering services. Therefore, even if the petitioner has been selected against a batch, to which she did not belong, it cannot be said that any wrong has been done to any person, since admittedly there was no person available between 2011-2014 batch, except the petitioner and two other selected candidates. Otherwise also, if the appointment offered to petitioner is withdrawn, again it is the petitioner only who would be considered for the batch, though in later selection process, which will not benefit anyone, since the post will have to be kept vacant. 12. Though, there cannot be any quarrel with the fact that petitioner ought not have been considered for one of the post reserved for OBC-BPL category, otherwise notified to be filled up from 2011 batch, but once now she stands appointed and pursuant to her appointment has been serving the Department for more than three 10 years, coupled with the fact that she is otherwise not ineligible, it would be too harsh and oppressive to throw out her at this juncture. 13. Though, Mr. 13. Though, Mr. Rajan Kahol, learned Additional Advocate General, while referring to the reply attempted to argue that inquiry is still going on against the members of the Selection Committee, but such fact may not be of much relevance as far as continuation of petitioner against the post is concerned, especially when this Court is fully convinced that there was no misrepresentation or fraud, if any, petitioner, rather entire confusion arose on account of various communications issued by the Department, thereby prescribing different cutoff dates for selection to the post in question. Otherwise also, there is nothing to suggest that petitioner herein had any kind of relationship with the members of the Selection Committee or they had some personal agenda to select the petitioner against the post notified for 2011 batch. 14. At this juncture it would be apt to take note of judgment rendered by the 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 were 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:- 11 “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 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.” 15. Hon'ble Apex Court in Anmol Kumar Tiwari and others Versus State of Jharkhand and others, (2021) 5 SCC 424, wherein the Hon’ble Apex Court confirmed the decision of the High Court that had directed reinstatement of the writ petitioners after taking into account the fact that they were though 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- 12 therein were appointed due to an error committed by the Respondents in the matter of 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.” 16. Consequently, in view of detailed discussion as well as law taken into consideration, this Court finds merit in the present petition and accordingly, same is allowed and impugned order dated 31.08.2024 (Annexure P-12) is quashed and set aside. Needless to say, prayer, if any, made by the petitioner for regularization in terms of regularization policy shall be considered in accordance with law. Pending applications, if any, also stand disposed of. 1. p (Sandeep Sharma), Judge December 11, 2025 (shankar)