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2025 DAILYLAW 4033 (HP)

Partap Chand v. State of Himachal Pradesh

2025-12-03

Ranjan Sharma

body2025
JUDGMENT : Ranjan Sharma, Judge Petitioner, Partap Chand, had initially filed Original Application No.1148 of 2005 before State Administrative Tribunal and upon abolition of Tribunal, the matter stood re-transferred to this Court, as CWPOA No.577 of 2019, seeking the following reliefs :- “The respondents No. 1 & 2 may kindly be directed to issue appointment letter to the applicant as JBT and to appoint him at a suitable place, with all consequential benefits.” FACTUAL MATRIX: 2. Grievance of the petitioner as put forth by Learned Counsel for the petitioner is that he joined Armed Forces in 1987. During service in the Armed Forces, the petitioner passed his JBT and as per norms got registered with Sainik Welfare Board [Exservicemen Cell] Hamirpur on 03.07.2001. Thereafter the petitioner sought voluntary retirement from the Armed Forces on 20.02.2002. It is further averred that being an OBC and an Exservicemen and having been registered for civil employment against Exservicemen-OBC posts, the Director Sainik Welfare Board, Himachal Pradesh nominated 23 Exservicemen for post of JBT in District Kangra in District Cadre on 27.12.2003 [Annexure A-2]. Out of these 23 nominated incumbents, 16 incumbents were sponsored for the post of Exservicemen-General Category and 6 incumbents were sponsored for post of Exservicemen-OBC Category and 1 for Exservicemen-SC vacancy. It is averred that Respondent No.3-Director Sainik Welfare nominated the name of the petitioner for the post of JBT against Exservicemen-OBC Category on 13.01.2004 [Annexure A-3] and pursuant to the nomination, though Deputy Director of Primary Education Kangra directed the petitioner on 03.01.2005 [Annexure A-5] to appear in Interview on 19.01.2005 but despite having appeared in interview, the petitioner was not appointed as JBT in view of the fact that out of 23 Exservicemen candidates only 20 incumbents had joined and therefore, the petitioner may be considered against 3 unfilled vacancies. It is averred that even Deputy Director of Primary Education Kangra has sent a communication on 01.02.2005 [Annexure A-6] and on 01.03.2005 [Annexure A-7] to Respondent No.2-Director of Primary Education about the unfilled vacancies, due to non-joining of Manjit Singh Rana and Om Prakash as JBT. It is in this background, that the instant petition has been filed, seeking appointment as JBT against one of three un-filled vacancies of JBT- Exservicemen, with all consequential benefits. STAND OF RESPONDENTS No.1 & 2-STATE AUTHORITIES IN REPLY-AFFIDAVIT: 3. It is in this background, that the instant petition has been filed, seeking appointment as JBT against one of three un-filled vacancies of JBT- Exservicemen, with all consequential benefits. STAND OF RESPONDENTS No.1 & 2-STATE AUTHORITIES IN REPLY-AFFIDAVIT: 3. Pursuant to the issuance of notice on 09.05.2005, the Respondents 1 & 2-State Authorities have filed the Reply-Affidavit dated 17.09.2005 of Director of Primary Education, Himachal Pradesh. 3(i). Perusal of the Reply-Affidavit indicates that Director of Sainik Welfare Board commenced the selection process by nominating 23 Exservicemen [General and OBC category incumbents] for the post of JBT. Reply-Affidavit indicates that three vacancies, i.e. two vacancies of Exservicemen Scheduled Caste and one vacancy of Exservicemen Scheduled Tribe remained un-filled. Para 3 of Preliminary Submissions and Para 6(ii) (vi) (viii-a) states that since the petitioner belongs to Exservicemen-OBC category and no vacancy was available for Exservicemen-OBC, therefore, the petitioner could not be appointed, despite being nominated for the aforesaid post. In this background, prayer is made for dismissal of the writ petition. STAND OF RESPONDENT No.3-SAINIK WELFARE BOARD IN REPLY-AFFIDAVIT: 4. Respondent No.3-Director of Sainik Welfare Board, Himachal Pradesh has filed the Reply-Affidavit dated 01.06.2005 of Officer on Special Duty in the Directorate concerned. 4(i). Perusal of Reply-Affidavit indicates that for 23 posts of JBT belonging to Exservicemen (General, OBC and SC) category, the Respondent No.3 nominated 23 Exservicemen for appointment. It is averred that nominated candidates are appointed by Deputy Director of Primary Education as per the willingness of individuals concerned. The stand of Respondent No.3 was restrictive only to the extent of being a nominating agency. The aforesaid respondent has not given any comments regarding claim for appointment. REBUTTAL BY PETITIONER: 5. Petitioner filed a rejoinder to the Reply filed by Official Respondents 1 & 2, by reiterating the claim for appointment as JBT against Exservicemen-OBC posts, by enclosing the Employment Registration Certificate showing the petitioner to be Ex-servicemen-OBC. SUPPLEMENTARY AFFIDAVIT BY STATE AUTHORITIES: 6. The aforesaid respondent has not given any comments regarding claim for appointment. REBUTTAL BY PETITIONER: 5. Petitioner filed a rejoinder to the Reply filed by Official Respondents 1 & 2, by reiterating the claim for appointment as JBT against Exservicemen-OBC posts, by enclosing the Employment Registration Certificate showing the petitioner to be Ex-servicemen-OBC. SUPPLEMENTARY AFFIDAVIT BY STATE AUTHORITIES: 6. Respondent No.2-Director Primary Education has filed a Supplementary Affidavit on 16.06.2011, indicating that out of 23 nominated Exservicemen for post of JBT, 20 Exservicemen have been appointed as JBT in District Kangra and three posts remained unfilled, which were meant for Exservicemen Scheduled Caste [2 posts] and Exservicemen Scheduled Tribe [1 post] and no post of JBT meant for Exservicemen OBC was vacant in District Kangra and due to non availability of Exservicemen-OBC post, the petitioner was not appointed. 7. Heard, Mr. Shashwat Dadwal, Advocate, for the petitioner and Mr. Navlesh Verma, Learned State Counsel for the Respondents-State. ANALYSIS: 8. Taking into account the entirety of facts and circumstances and the material on record, this Court is of the considered view, that the non-appointment of the petitioner, as JBT from Exservicemen-OBC Category, on the basis of nomination dated 13.01.2004 [Annexure A-3], does not suffer from any infirmity or illegality, for the following reasons: 8(i). Perusal of the Employment Registration Card of 2001 and the Employment Registration and Renewal Card vide Annexure A-10 with rejoinder [at page 42 and 43] reveals that after passing the JBT Course the petitioner being an Exservicemen got his name registered for the post of JBT, as an Exservicemen-OBC category candidate. 8(ii). Indisputably Communication dated 27.12.2003 [Annexure A-2] indicates that 23 posts of JBT were sought to be filled from Exservicemen [UR-OBC-SC] candidates by the Respondents 1 and 2 and out of total 23 posts of JBT-Exservicemen; 16 posts were meant for Exservicemen-General incumbents; 6 posts for Exservicemen-OBC category candidates and 1 post of JBT was meant for Exservicemen-Scheduled Caste Category candidates. Pursuant to nomination dated 27.12.2003 [Annexure P-2] for 23 posts, 3 posts remained un-filled due to non-joining of Sh. Manjit Singh and Om Parkash [Exservicemen-UR] which is borne out from Annexure A-6 and likewise one post remained un-filled due to non-joining of Exservicemen-SC, namely Milap Chand. Pursuant to nomination dated 27.12.2003 [Annexure P-2] for 23 posts, 3 posts remained un-filled due to non-joining of Sh. Manjit Singh and Om Parkash [Exservicemen-UR] which is borne out from Annexure A-6 and likewise one post remained un-filled due to non-joining of Exservicemen-SC, namely Milap Chand. Learned Counsel for the petitioner states that in Reply-Affidavit the State Authorities have taken a contradictory stand that 3 unfilled posts pertain to Exservicemen-ST [2 posts] and Exservicemen-ST [1 post] and therefore, the petitioner may be appointed against any of these unfilled Exservicemen vacancies. The above contention of Learned Counsel for the petitioner will not come to the rescue of the petitioner for the reason that once the petitioner had got himself registered for the post of JBT Teacher from amongst Exservicemen OBC category [as per Annexure A-1 and Annexure A-10] then, the petitioner has a right to be considered against Exservicemen-OBC reserved post only. Material on record indicates that no post of Exservicemen OBC had remained unfilled out of 23 posts of JBTs, which were sought to be filled from Exservicemen and therefore, the claim of the petitioner for appointment against the unfilled vacancies of Exservicemen meant for UR or SC or ST category in District Kangra is not tenable. Permitting the petitioner to be appointed against the unfilled Exservicemen post(s) meant for Exservicemen-UR or Exservicemen-SC or Exservicemen-ST shall amount to acting dehors the reservation roster and shall amount to permitting the petitioner, who belongs to Exservicemen-OBC to usurp the posts, meant for Exservicemen UR or SC’s or ST’s [as the case may be]. Reservation meant for Exservicemen [UR or SC or ST or OBC] is to be accorded against the post reserved for respective category falling under horizontal reservation. In these circumstances, the claim of the petitioner [Exservicemen OBC] against unfilled posts of Ex-servicemen SC or ST or UR cannot sustain and the plea is accordingly turned down. 8(iii). No person has an automatic right of appointment. A person has a limited right of consideration which has to accrue in terms of the service Rules. In these circumstances, the claim of the petitioner [Exservicemen OBC] against unfilled posts of Ex-servicemen SC or ST or UR cannot sustain and the plea is accordingly turned down. 8(iii). No person has an automatic right of appointment. A person has a limited right of consideration which has to accrue in terms of the service Rules. As per the specific stand of the State Authorities, once out of 23 posts of JBT, 3 posts remained un-filled and out of these 3 posts none of the un-filled-vacant posts fell to the share of Exservicemen-OBC Category to which the petitioner belongs, therefore, in absence of any vacancy for the petitioner, the mere nomination on 13.01.2004 [Annexure A-3] shall neither create any right nor any locus for automatic appointment on the petitioner. 8(iv). Learned Counsel submits that the petitioner ought to have been sponsored against Exservicemen OBC post, on which, one Shri Sangeet Kumar, Serial No.18 of letter dated 27.12.2003, Annexure A-2 was nominated, on the ground that the petitioner has longer length of service in Armed Forces and was registered prior to him for re-employment also. The above contention is mis-conceived for two reasons; firstly, in case, the petitioner is seeking benefit over and above Sangeet Kumar, then, since Sangeet Kumar has not been impleaded as a party, therefore, this Court cannot comment upon the entitlement of the petitioner vis-à-vis the Sangeet Kumar and secondly, the relevant details as to how and under which provision of rules or norms, the petitioner claims to be senior vis-à-vis Sangeet Kumar are also missing. In this backdrop, the contention of learned counsel for the petitioner cannot be gone into and the same is turned down. 8(v). Material on record i.e. Annexure A-1 and Annexure A-10 negate the claim of the petitioner, for the reason, that once, petitioner has registered himself as an Exservicemen-OBC category candidate and had chosen himself to avail the benefit as an Exservicemen- OBC then, the petitioner has neither any right nor locus to seek appointment against any of the un-filled Exservicemen vacancies, which were in fact meant for Exservicemen-Scheduled Caste or Schedule Tribe etc. in District Kangra. In these circumstances, the plea of petitioner is not tenable and is turned down. 8(vi). Learned Counsel for petitioner contends that, even if, the petitioner belongs to Exservicemen- OBC category, then also, the petitioner ought to have been considered against Exservicemen-UR vacancy. in District Kangra. In these circumstances, the plea of petitioner is not tenable and is turned down. 8(vi). Learned Counsel for petitioner contends that, even if, the petitioner belongs to Exservicemen- OBC category, then also, the petitioner ought to have been considered against Exservicemen-UR vacancy. The above contention of Learned Counsel for the petitioner is mis-conceived, for the reason, that this principle cannot be applied in fact-situation of instant case, for the reason that the selection for post(s) of JBT in District Kangra was undertaken for Exservicemen and the nominated Exservicemen [i.e. petitioner and others] had availed of relaxed standards and once there was no open competition and nothing has been asserted that the petitioner had higher merit vis-à-vis the Exservicemen-UR candidates [as per prescribed norms for selection of Exservicemen for JBTs by Respondent No.3-Sainik Welfare Board- Exservicemen Cell] therefore, in such an eventuality, the normal principle that reserved candidates who score higher merit vis-à-vis the General-UR Category candidates without availing relaxed standards and to be migrated/switched over to General-Unreserved posts, is neither attracted nor applicable, in fact-situation of instant case. Accordingly, the contention of Learned Counsel for the petitioner cannot sustain. DIRECTIONS: 9. In view of above discussion and for the reasons recorded hereinabove, the instant petition, is dismissed, in the following terms:- (i). Non-appointment of petitioner as JBT in pursuance to nomination dated 13.01.2004 [Annexure A-3], for want of Exservicemen-OBC vacancy does not suffer from any infirmity and illegality; (ii). Petitioner being Ex-servicemen-OBC has neither any locus nor any right for appointment as JBT, against the un-filled Ex-servicemen-Schedule Caste [2 posts] or Ex-servicemen-ST [1 post] or Ex- servicemen-UR post as JBT in District Kangra [at relevant time]; (iii). Parties to bear respective costs. In aforesaid terms, the instant petition along with pending miscellaneous application(s), if any, shall also stand disposed of.