2026:HHC:28533 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.4239 of 2019 Decided on: 10.07.2026 Rajan Chauhan ...Petitioner Versus Himachal Pradesh Rajya Chayan Ayog, Hamirpur and others ...Respondents Coram Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting? 1 For the petitioner: Mr. Dilip Sharma, Senior Advocate, with Mr. Ompal and Ms. Anjali Cheedar, Advocates. For the respondents: Mr. Sanjeev Kumar Motta, Advocate, for respondent No.1. Mr. Anup Rattan, Advocate General, with Mr. Amandeep Sharma, Additional Advocate General, for respondent No.2. Mr. J.G. Bagga, Advocate for respondents No.3 & 4. Jiya Lal Bhardwaj, Judge (Oral) The petitioner by way of present petition has prayed for the following substantive reliefs:- “(i) That the department of Ayurveda allotted to the petitioner vide press note dated 10.8.2011, Annexure P-3 may be quashed and set aside; 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2026:HHC:28533 (ii) That the respondent No.1 may be directed to appoint to the petitioner as Clerk in the Department of Secretariat Administration under HP Secretariat on the basis of his merit in the limited direct recruitment conducted by respondent No.1 with all consequential benefits, including maintaining his seniority on the basis of his merit; (iii) That if in order to make room for appointment of petitioner as Clerk in HP Secretariat, it becomes necessary to quash appointment of respondents No.3 to 5 or anyone of them, the same may also be quashed and set aside;” 2. The facts as emerge from the pleadings are that the petitioner, who was working as regular Class-IV employee in the office of the Director, Dental Health Services, Dental Department of the State Government, had applied for the post of Clerk, in pursuance of Advertisement dated 12.10.2010 (Annexure P-1), well before the date fixed to receive the application. The petitioner belongs to Scheduled Caste category. As per Advertisement (Annexure P-1), the candidates will be recommended for appointment to different departments on the basis of merit and choices exercised by them. After issuing the Advertisement, respondent No.1, earlier Himachal Pradesh Subordinate Services Selection Board, (in short Board) vide notice dated 28.01.2011 (Annexure P-2) had bifurcated the posts of Clerk, out of which 22 posts were to be filled up in 3 2026:HHC:28533 Secretariat Administration Department (for short ‘SAD’) 13 posts were reserved for General categories, 4 for Scheduled Caste category, 1 for Scheduled Tribe and 4 for Other Backward Classes (for short’ OBC’). The petitioner appeared in the written screening test and personal interview conducted by the Board on 04.08.2011 and the result was declared on 10.08.2011 and he scored 152 marks, as evident from perusal of Annexure P-3, in which his name figures at Serial No.113. However, he was allotted Ayurveda Department. 3. The petitioner made a representation on 16.08.2011 (Annexure P-4) to the Board stating therein that due to certain reasons, he could not give his preference of Department, in which he wishes to serve, but his first preference is SAD (respondent No.2) and second would be his parent Department i.e. Health and Family Welfare Department (for short ‘H&FWD’). Despite making a representation, no action was taken by the Board and the petitioner joined in the Ayurveda Department on 03.09.2011. Thereafter, he made another representation dated 03.12.2011 (Annexure P-5), requesting that after preparation of the merit list, he was never called upon to 4 2026:HHC:28533 exercise option for allocating him any Department as per merit. He further stated that he is willing to be appointed as Clerk in SAD and many persons, who were appointed having less merit have been allotted SAD, Himachal Pradesh Secretariat. 4. It has also been averred in the petition that the persons who had earlier appeared in the written test and interview, in which he had appeared could not qualify the skill test (typing test), which was only a qualifying test without any marks to be added in merit, they were given another chance to appear in skill test (typing test). On the basis of the skill test so conducted, result was declared, which appeared in ‘Dainik Bhaskar’ on 21.12.2011 and 23 candidates were declared successful. Out of them 7 were allocated SAD and 3 of them belongs to SC category. One of the SC category candidates had scored 99 marks, who has been allotted SAD. However, the Board did not take any decision on the representation and offered appointment to those persons and thereafter the petitioner had obtained information under the Right to Information Act, which was supplied by the Board on 27.06.2012, wherein it was stated that allotment of Department was made in accordance with 5 2026:HHC:28533 his option given at the time of personal interview. It is further intimated that no interim correspondence is made with the candidates under 11.4 Rule of Business & Procedure of the Board. 5. The petitioner has approached this Court against the action on the part of the Board in not recommending him to the SAD (respondent No.2), inter alia on the grounds that he had secured 152 marks in the selection process and he was at serial No.4 in the merit of SC category candidates and at Serial No.21 in the general merit. There were 22 vacancies available in Himachal Pradesh Secretariat, 13 for general category and 4 for SC category. It has further been averred that soon after declaration of the result of selection by the Board, he submitted representation dated 16.08.2011 (Annexure P-4) to the Board pointed out therein that he was interested to join SAD, however, no action was taken. It has further been averred that the Board had recommended the candidates for appointment to different Departments on the basis of merit and choices exercised by them, inasmuch as respondent No.2 adopted the policy of pick and choose in a most arbitrary manner. It has also been averred that once the candidate had not qualified the skill 6 2026:HHC:28533 test (typing test), which was only a qualifying test without any marks to be added in merit and the candidates were given chance to clear the same, which test was conducted later on and result was declared on 21.12.2011, the action on the part of the Board in not recommending his name on the basis of merit in SAD is unjust. It has further been averred that the allotment of Department of Ayurveda to the petitioner, vide letter dated 10.08.2011 is liable to be set aside, thereby recommending his name in SAD. 6. Respondent No.1-Board filed reply and not disputed the facts with respect to the advertisement and making the representations by the petitioner. It has been averred that as per the advertisement dated 12.10.2010, the candidates will be recommended for appointment to different Departments on the basis of merit and options exercised by them. The selection process for the posts of Clerk by 20% quota of Limited Direct Recruitment (in short LDR) Scheme was finally completed on 10.08.2011 and the result was declared and the candidates as per options exercised by them at the time of personal interviews were allotted the Departments. It has further been averred that the petitioner had opted for Health and Family Welfare 7 2026:HHC:28533 Department (Annexure P-8) and since there was no post in his opted Department and as such, he was allotted Ayurveda Department, which is also sister concern of Health and Family Welfare Department. The Board has not disputed the fact that the candidates, though qualified the written screening test and failed to qualify the typing test in the prescribed speed, were again afforded an opportunity to qualify the typing test and the candidates bearing Roll Nos. 10384 and 10391 opted the HP Secretariat and as such they were rightly allotted the Secretariat Administration Department as per their option. The candidate bearing Roll No. 10588 opted PWD at the time of personal interview and he was also rightly allotted PWD, as per his option. 7. Respondent No.2-State filed reply and averred that it has been arrayed as a necessary party, which is not maintainable as no injustice or illegality has been committed by it. As per the requisition sent by the Department of Personnel to the Board on 12.10.2010, 22 posts of Clerk were earmarked to SAD to be filled in through LDR. The Board had recommended the names of 13 candidates and all the candidates have already been offered appointment in the HP Secretariat, who had joined their 8 2026:HHC:28533 duties. Similarly another requisition was sent by the Department of Personnel to the Board on 14.11.2011 and 21 posts were earmarked to the SAD to be filled up through LDR. The Board had recommended six candidates and all have been offered appointments in SAD, who joined their duties. Out of six candidates, respondents No.3 and 4 have been recommended for appointment, but respondent No.5 has not been recommended. It has further been averred that respondent No.2 is only an appointing authority, since the issue in controversy pertains to the selection/recommendation of candidates by the recruiting agency i.e. respondent No.1, therefore, the Board has not committed any injustice or illegality and, therefore, the petition is not maintainable. 8. Respondents No.3 & 4 filed replies and averred that the petition is not maintainable and is liable to be dismissed. It has further been averred that respondent No.4 was already working in the SAD Department. They have been allotted the SAD as per the option made by them at the time when they applied for the concerned post. Therefore, the petitioner cannot claim the posting in SAD on the basis of higher merit and further cannot challenge their 9 2026:HHC:28533 appointments. 9. I have heard the learned counsel for the parties and also perused the record carefully. 10. Learned senior counsel representing the petitioner has vehemently argued that as per the advertisement dated 12.10.2010, a condition was mentioned that “the candidates will be recommended for appointment to different departments on the basis of merit and choices exercised by them”. He has candidly admitted that at the time of filling the form, the petitioner had not given the choice of the Department. A perusal of the advertisement dated 12.10.2010 (Annexure P-1) reveals that the last date fixed for receipt of the application form was 15.11.2010. The Board after receipt of the application forms had issued the notice dated 28.01.2011 (Annexure P- 2), where bifurcation of the vacancies was mentioned. It is not in dispute that the petitioner had appeared in the skill test and had qualified the examination with 152 marks and he belongs to SC category. Before declaration of the result, the Board had taken an undertaking regarding option for the post from the petitioner on 04.08.2011 (Annexure P-8), wherein he had mentioned his parental Department as 10 2026:HHC:28533 Health and Family Welfare and further he had signed the said undertaking in which it is also mentioned that any other Department on the basis of merit ranking and proportional allocation. No doubt in this undertaking, the petitioner had mentioned that he submitted his option for the above said post on his selection, mentioning his parent Department i.e. Health and Family Welfare Department, but since it was a printed performa, the petitioner had only to fill up the said performa mentioning his Department. Since there was no seat of Clerk in the Department of Health and Family Welfare, the petitioner ought to have been given the Department as per the merit ranking, which was mentioned in the advertisement and in the option form filled in by him on 04.08.2011. Thus, the action of the Board to allocate the petitioner, the Department of Ayurveda which was not his option is totally illegal, arbitrary, discriminatory, especially when the persons, who did not qualify the typing test, were granted the opportunity to clear the same and furthermore, they had scored less marks than the petitioner. The petitioner ought to have been allocated SAD, since he had scored 152 marks, and respondents No. 3 and 4 had scored 119 and 106 marks, respectively and had not qualified the 11 2026:HHC:28533 typing test and given the chance to clear the same, which they cleared on 21.12.2011. The petitioner had already made a representation on 16.08.2011 and seat was lying vacant in SAD. The Board ought to have allotted the petitioner SAD, since there was no seat available in the Health and Family Welfare Department, where the petitioner was working as Class-IV employee and opted for the post. 11. If the successful persons had qualified and eligible for appointment as on 10.08.2011, when the result was declared and they had been offered appointments and joined their services in SAD, the Board was right in not entertaining the request made by the petitioner. However, once the petitioner had made a representation on 16.08.2011, immediately after declaration of result on 10.08.2011, it was incumbent upon the Board to consider his request, more particularly when he was having 152 marks and the vacancies were not filled up. It has been the specific case of the petitioner that the persons, who had though qualified the written test and interview, but could not qualify the skill test (typing test), they were allowed another chance to appear in the skill test i.e. typing test and once the said test was conducted after the representations 12 2026:HHC:28533 made by the petitioner, it was expected of the Board, to first consider the prayer of the petitioner for the reasons i.e. first, he was having higher in merit than the persons who were given the chance to appear in the typing test, second, there was no seat in Health and Family Welfare Department and the Board at its own allocated the seat in Ayurveda Department, which was not as per the merit in the result declared by the Board and third, he belongs to Scheduled Caste category. If the option Annexure P-8 is perused, no doubt in case the petitioner was allotted the seat in the Health and Family Welfare Department, the Board would have been right in not entertaining his request for change of option, but once there was no seat in the said Department, the request made by the petitioner, ought to have been considered, which has caused injustice to him. 12. Learned Advocate General has forcefully argued that since the petitioner has not served in the SAD and there is no fault on the part of respondent No.2 and further the SAD is not placed at the same pedestal as other Departments of the State Government, such as Ayurveda and Health and Family Welfare Department, the petitioner is not entitled to any relief and his petition deserves to be 13 2026:HHC:28533 dismissed. However, keeping in view the fact that there is no fault on the part of the petitioner and further he had made the representation even before filling up of the vacancies in the Scheduled Caste category and he was having 152 marks and the persons, who did not qualify the typing test, which was mandatory before joining the Department and the persons were allowed to appear again in the typing test, which result was declared on 21.12.2011 and the petitioner had already made the representations, the petitioner cannot be denied the benefit only for the reason that he did not serve in the SAD. The petitioner could not serve the SAD only for the reason that he was not issued the appointment letter, though the persons, who had got less merit were offered the appointments after granting them the chance to clear the typing test again. 13. Once respondent No.2 had granted the chance to the persons, who did not clear the typing test, the request made by the petitioner ought to have been acceded to by allocating him the SAD, more particularly, when there was no seat available in the Health and Family Welfare Department and further, as per the merit obtained in the result, he was eligible to be recommended for the SAD. As 14 2026:HHC:28533 already discussed above, in the advertisement, it was clearly mentioned that the Departments will be allotted on the basis of the merit and choices, then in that case, the petitioner before allocation to the Department of Ayurveda, which he had not opted and further the Board allocated the SAD to those persons, who were having less merit, the contention raised by the learned Advocate General that he cannot be allowed SAD at this juncture cannot be countenanced and is rejected. Not only this, even when the undertaking was taken, the petitioner had mentioned the Health and Family Welfare Department and thereafter, to allocate the Department on the basis of the merit, ranking and proportional allocation. There was no column filled up by the petitioner that he would be given Ayurveda Department and once there was no vacancy available in the Health and Family Welfare Department, which was opted by him, then in that case, he ought to have been allocated the Department on the basis of the merit. The merit cannot be ignored for the purpose of allocating the Department. 14. Learned Advocate General has also vehemently argued that it is not within the realm of the Court to give the directions to create the post and in case the Court gives the 15 2026:HHC:28533 direction to offer the appointment to the petitioner, it will tantamount to creating the supernumerary posts and financial burden on the State also. Learned Advocate General has placed reliance upon the judgment of the Hon’ble Supreme Court in Official Liquidator vs. Dayanand and others, (2008) 10 SCC 1. There is no quarrel with this proposition of law. In the present case, the Court is not giving the direction to create the post, but at the same time once the candidature of the petitioner was not considered, especially when he had made the representation before making selection and appointment and the post of Clerk was lying vacant in the SAD, the petitioner cannot be denied the benefit only for the reason that he had not served in the SAD. 15. Learned Advocate General has further submitted that in case the Court is inclined to accept the prayer made by the petitioner, then in that case, one of the private respondents has to be sent to the other Department and the amount has to be recovered from him, since the employees working in the SAD are getting special emoluments than the persons serving in Ayurveda. However, this contention is also rejected for the reason that there is no fault on the part 16 2026:HHC:28533 of respondents No.3 & 4, who after joining have been serving in the SAD and, therefore, at this stage, they cannot be sent to other Departments after about 15 years of their service. 16. Learned counsel for the petitioner has vehemently argued that once the candidates were to be recommended for appointment to different Departments on the basis of merit and choices exercised by them, even if they had not given the option, their right cannot be marred, especially when they were higher in the merit. But at the same time, it was also incumbent upon the petitioner to mention the choices of Departments, once there was a column in the Advertisement. Therefore, the petitioner is not entitled to get the entire relief, at this belated stage, especially when the petitioner is now retired on 31.05.2026, but the Court is granting him the appointment in the SAD with all consequential benefits and denying him the monetary benefits till his retirement. The petitioner shall be granted all the benefits notionally till the date of his retirement and on actual basis thereafter as if he had served in the SAD such as granted to respondents No.3 and 4. 17 2026:HHC:28533 17. Consequently, the present petition is disposed of with a directions to the respondents No.1 & 2 that the petitioner is deemed to have served in the Secretariat Administrative Department of Himachal Pradesh as Clerk from the date when respondents No.3 and 4 have been appointed with all consequential benefits on notional basis and on actual basis from the date of his retirement. In case the arrears are not released in favour of the petitioner within three months from today, respondent No.2 shall pay interest @ 6% per annum from today till actual payment. No order as to costs. Pending application(s), if any, also stands disposed of. 10 th July , 2026 ( Jiya Lal Bhardwaj ) (Anurag) Judge