IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. …
Transcript of IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. …
Hig
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of H.P
.IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 3366/2020
Reserved on: 12.7.2021
Decided on : 20.7.2021
Varun Dhiman …..Petitioner
VersusState of H.P. & ors. ….Respondents
Coram:
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.The Hon’ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes
For the Petitioner: Mr. Sanjay Jaswal, Advocate.
For the Respondents: Mr. Ajay Vaidya, Sr. Addl. A.G. for respondents No.1 and 2. Mr. Sanjeev Kumar Motta, Advocate, for respondent No.3. (Video Conferencing)_____________________________________________________________________
Justice Tarlok Singh Chauhan, Judge
The instant petition has been filed for grant of the
following substantive relief:
“that the writ in the nature of mandamus may kindly be
issued, thereby directing the respondent No.2 to requisition
the name of the petitioner being Sr. No. 6 in the merit wise
waiting panel prepared for the post of Lab Assistant
(Allopathy) against OBC (UR) category (Annexure P/4) and
respondent No.3 also be directed to sponsor his name for
1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
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the said post as the post is lying vacant after nonjoining of
the Serial No.5 candidate of waiting panel against the said
post, with further direction to respondent No.2 to appoint
the petitioner against the post of Lab Assistant (Allopathy)
on contract basis, OBC (UR) Post Code 654.”
2 On 4.9.2017, respondent No.2, i.e. Director, Health &
Family Welfare sent a requisition to respondent No.3, Himachal
Pradesh Staff Selection Commission,Hamirpur, for filling up of
vacant posts of Laboratory Assistant. Pursuant to such
requisition, respondent No.3 recommended 102 candidates, who
eventually were offered appointment on 21.6.2019. However, out
of these 102 candidates, 22 candidates did not join and
consequently, their appointment orders were ordered to be
withdrawn by the Department vide letter dated 20.9.2019. On
20.9.2019 itself, respondent No.3 was requested to recommend
names of 22 candidates from waiting panel. Respondent No.3, in
turn, vide its communication dated 26.10.2019 recommended
names of 22 candidates, who were offered appointment vide letter
dated 23.11.2019.
3 However, out of these 22 candidates, three candidates
again did not join their duties and respondent No.3 on
14.7.2020 was again requested to sponsor names of eligible
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candidates from the waiting panel. This time, the request of
respondent No.2 was turned down by respondent No.3 by
invoking Rules of Business & Procedure of the Commission,
which clearly provide for life of the waiting panel to be valid upto
one year from the date of recommendations in case of nonjoining
of earlier recommended candidates.
4 Since reply(ies) of the respondents was conspicuously
silent as to what transpired from 23.11.2019, when 22
candidates had been offered appointment and out of which 3
candidates had not joined, uptill 5.8.2020, when respondent No.3
informed respondent No.2 that no further appointment could be
made in view of life of waiting panel, we directed the respondents
to produce before us records of the case.
5 We were shocked to note that the officials of
respondent No.2 did not even bother to deal with files during this
period even though 3 candidates out of 22 candidates as
aforesaid had not joined. Meaning thereby, that on account of
sheer negligence of the officials/officers of respondent No.2,
appointment has been denied to 3 persons from waiting list.
6 It was more than four decades back that the Hon’ble
Supreme Court had observed that “it must, therefore, be taken to
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be the law that where the Government is dealing with the public,
whether by way of giving jobs or entering into contracts or
issuing quotas or licences or granting other forms of largesses,
the Government cannot act arbitrarily at its sweet will and, like a
private individual, deal with any person it pleases, but its action
must be in conformity with standard or norm which is not
arbitrary, irrational or irrelevant. The power or discretion of the
Government in the matter of grant of largesses including award
of jobs, contracts quotas, licences etc., must be confined and
structured by rational, relevant and nondiscriminatory standard
or norm and if the government departs from such standard or
norm in any particular case or cases, the action of the
Government would be liable to be struck down, unless it can be
shown by the Government that the departure was not arbitrary,
but was based on some valid principle which in itself was not
irrational, unreasonable or discriminatory (Refer: Erusian
Equipment and Chemicals Ltd. vs. State of West Bengal, AIR
1975 SC 26).
7 The instant case depicts sordid, despotic and nepotic
functioning of respondent No.2 where despite there being 3
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vacancies, it took no steps to fill up the same from the waiting
list.
8 No doubt, a candidate in the waiting list has no
indefeasible right to be appointed because notification merely
amounts to an invitation to qualified candidates to apply for
recruitment and on their selection they do not acquire any right
to the post. It is also settled that unless the relevant recruitment
rules so indicate, the State is under no legal duty to fill up all or
any of the vacancies. However, that does not mean that the State
has the licence of acting in an arbitrary manner and there has to
be a conscious decision not to fill up the vacancies, which has to
be taken bona fide for appropriate reasons.
9 In Miss Neelima Shangla v. State of Haryana and
Others, (1986) 4 SCC 268, the Hon'ble Supreme Court observed
that it is always open to the Government not to fill up all the
vacancies for a valid reason, but the selection cannot arbitrarily
be restricted to a few candidates, notwithstanding the number of
vacancies and the availability of qualified candidates.
10 The ratio laid down in this judgment was affirmed by
Constitution Bench of the Hon'ble Supreme Court in
Shankarsan Dash vs. Union of India, 1991 (3) SCC 47, wherein
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it was held that if a number of vacancies are notified for
appointment and adequate number of candidates are found fit,
still the successful candidates acquire an indefeasible right to be
appointed. According to the Hon'ble Supreme Court, notification
merely amounts to an invitation to qualified candidates to apply
for recruitment and on their selection they do not acquire any
right to the post. Unless the relevant recruitment rules so
indicate, the State is under no legal duty to fill up all or any of
the vacancies. However, the Hon'ble Supreme Court also stated
that it does not mean that the State has the licence of acting in
an arbitrary manner and the decision not to fill up the vacancies
has to be taken bona fide for appropriate reasons. It was
declared that if the vacancies or any of them are filled up, the
State is bound to respect the comparative merit of the
candidates, as reflected at the recruitment test, and no
discrimination can be permitted.
11 In Mrs. Asha Kaul vs. State of Jammu and
Kashmir, 1993 SCC (2) 573, the Hon'ble Supreme Court again
reiterated that mere inclusion in the select list does not confer
upon the candidates included therein an indefeasible right to
appointment. The Hon'ble Supreme Court also stated that there
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is obligation of the Government to act fairly and the whole
exercise cannot be reduced to a mere farce. It was further
observed that having sent a requisition/request to the Public
Service Commission to select a particular number of candidates
for a particular category in pursuance of which the commission
issues a notification, holds a written test, conducts
interviews, prepares a select list and then communicates to
the Government, the Government cannot quietly and without
good and valid reasons nullify the whole exercise and tell the
candidates when they complain that they have no legal right to
appointment.
12 In view of the aforesaid exposition of law, it can
legitimately be concluded that even though the selected
candidate has no vested right in the qualifying examination for
getting appointed against the posts advertised/notified, yet the
State cannot withdraw the seats arbitrarily without there being
any bona fide or appropriate reasons and the selection cannot
arbitrarily be restricted to a few candidates, notwithstanding the
number of vacancies and the availability of qualified candidates.
13 Discussion in this regard would be incomplete in case
we do not take note of the recent judgment of the Hon'ble
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Supreme Court in Dinesh Kumar Kashyap and ors. Vs. South
East Central Railway and ors. (2019) 12 SCC 798.
14 In this case the facts were respondent No.1, South
East Central Railway (for short the SECR) issued an
advertisement on 15.12.2010 inviting applications for filling up
5798 posts in the pay scale of Rs.5200Rs. 20,200 + Grade Pay
of Rs.1800/ in Raipur, Bilaspur and Nagpur divisions and
workshops. The claim of the original writ petitioners who filed
applications before the Central Administrative Tribunal (for short
CAT) was that as per the existing instructions the select list was
prepared with 20% extra candidates. Therefore, the result of
6995 candidates was declared who were successful. The
appellants fell in the category of extra 20%. The SECR did not
make the appointments from these 20% extra candidates though
624 posts remained unfilled in the general category itself. The
appellants who fell in the 20% category of extra candidates filed
applications before the CAT praying that the SECR be directed to
fill in the unfilled vacancies from this list of 20% candidates. This
application was rejected by the Tribunal. Allowing the appeal, the
Hon'ble Supreme Court observed as under:
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5. The main issue which arises before us is whether the
SECR could have ignored the 20% extra panel despite the
letter dated 02.07.2008 without giving any cogent reason
for the same. No doubt, it is true, that mere selection does
not give any vested right to the selected candidate to be
appointed. At the same time when a large number of posts
are lying vacant and selection process has been followed
then the employer must satisfy the court as to why it did
not resort to and appoint the selected candidates, even if
they are from the replacement panel. Just because
discretion is vested in the authority, it does not mean that
this discretion can be exercised arbitrarily. No doubt, it is
not incumbent upon the employer to fill all the posts but it
must give reasons and satisfy the court that it had some
grounds for not appointing the candidates who found place
in the replacement panel. In this behalf we may make
reference to the judgment of this Court in R.S. Mittal vs.
Union of India (UOI)1, wherein it was held as follows: 1
(1995) Suppl.2 SCC 230
10. .....It is no doubt correct that a person on theselect panel has no vested right to be appointed tothe post for which he has been selected. He has aright to be considered for appointment. But at thesame time, the appointing authority cannot ignore theselectpanel or decline to make the appointment on itswhims. When a person has been selected by theSelection Board and there is a vacancy which can beoffered to him, keeping in view his merit position,then, ordinarily, there is no justification to ignore himfor appointment. There has to be a justifiable reasonto decline to appoint a person who is on the selectpanel. In the present case, there has been a mereinaction on the part of the Government. No reason
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whatsoever, not to talk of a justifiable reason, wasgiven as to why the appointments were not offered tothe candidates expeditiously and in accordance withlaw. The appointment should have been offered to Mr.Murgod within a reasonable time of availability of thevacancy and thereafter to the next candidate. TheCentral Government's approach in this case waswholly unjustified.
6. Our country is governed by the rule of law. Arbitrariness
is an anathema to the rule of law. When an employer
invites applications for filling up a large number of posts, a
large number of unemployed youth apply for the same.
They spend time in filling the form and pay the
application fees. Thereafter, they spend time to prepare for
the examination. They spend time and money to travel to
the place where written test is held. If they qualify the
written test they have to again travel to appear for the
interview and medical examination etc. Those who are
successful and declared to be passed have a reasonable
expectation that they will be appointed. No doubt, as
pointed out above, this is not a vested right. However, the
State must give some justifiable, nonarbitrary reason for
not filling up the post. When the employer is the State it is
bound to act according to Article 14 of the Constitution. It
cannot without any rhyme or reason decide not to fill up the
post. It must give some plausible reason for not filling up
the posts. The courts would normally not question the
justification but the justification must be reasonable and
should not be an arbitrary, capricious or whimsical exercise
of discretion vested in the State. It is in the light of these
principles that we need to examine the contentions of the
SECR.
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15 Judged in light of the aforesaid exposition of law, the
respondentState has failed to spell out any cogent and
convincing reasons as to why no steps were taken to fill up 3
posts from the waiting list.
16 The officials of respondent No.2 being the government
officials are not free to act like an ordinary individual, in dealing
with the public appointment, as they cannot act arbitrarily at
their own sweet will, rather their action must be in conformity
with some standard or norm which are not arbitrary, irrational or
irrelevant.
17 The action of the respondents must not be arbitrary
or capricious, but must be based on some principle which meets
the test of reason and relevance. After all, it is the principle of
reasonableness and nonarbitrariness in governmental action
that lies on the core of entire constitutional scheme and
structure.
18 The concept of reasonableness and nonarbitrariness
pervades the entire constitutional spectrum and is a golden
thread which runs through the whole fabric of the Constitution.
Thus, Article 14 read with Article 16(1) of the Constitution
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accords right to an equality or an equal treatment consistent with
principles of natural justice. Therefore, any law made or action
taken by the employer, corporate statutory or instrumentality
under Article 12 must act fairly and reasonably. Right to fair
treatment is an essential inbuilt of natural justice.
19 As observed earlier, it is highly regrettable that the
officials/officers of respondent No. 2 have been completely
oblivious to the fact that the office entrusted to them is sacred
and was meant for use and not for abuse.
20 The officials/officers of respondent No. 2 cannot act
as despots or monarchs and are obliged to act in accordance with
the principles of democracy, equity, equality and solidarity.
21 The entire scenario shocks the conscious of this Court
to come across such inaction committed by those who are at the
helm of affairs of respondent No. 2.
22. To say the least, respondent No.2 which is a ‘State’
within the meaning of Article 12 of the Constitution of India has
conducted in itself of untrustworthiness and like a belligerent
litigant has dragged the petitioner to an unnecessary and
otherwise avoidable litigation. Instead of gracefully accepting its
mistake, respondent No.2 could not resist the temptation of
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litigation and has fought this legal battle as if it was a war. The
battle otherwise is “uneven” as on one side is a public institution
whereas on the other side is a private individual.
23. As such, this Court has no hesitation to conclude that
public money has been wasted because of adamant behaviour of
officers of respondent No.2 due to litigious attitude adopted by these
officers in pursuing the instant litigation before this Court and trying to
justify the inaction, which otherwise is not at all justifiable.
24. It must be remembered that the State defined within
the ambit of State under Article 12 of the Constitution of India, is
not an ordinary party trying to win a case against one of its own
citizens by hook or by crook. The State’s interest is to meet
honest claims, vindicate a substantial defence and never to score
a technical point or overreach a weaker party to avoid a just
liability or secure an unfair advantage, simply because legal
devices provide such an opportunity.
25. In Urban Improvement Trust, Bikaner vs. Mohan
Lal (2010) 1 SCC 512, the Hon’ble Supreme Court observed that
it is a matter of concern that such frivolous and unjust litigations
by Governments and statutory authorities are on the increase. It
was further observed that statutory authorities which existed for
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to discharge statutory functions in public interest should be
responsible litigants and cannot raise frivolous and unjust
objections nor act in a callous and highhanded manner.
26. In Gurgaon Gramin Bank vs. Khazani and
another (2012) 8 SCC 781, the Hon’ble Supreme Court
considered the approach of the Government to litigate and
observed as under:
2. Number of litigations in our country is on the rise, for
small and trivial matters, people and sometimes Central and
State Governments and their instrumentalities Banks,
nationalized or private, come to courts may be due to ego
clash or to save the Officers' skin. Judicial system is over
burdened, naturally causes delay in adjudication of
disputes. Mediation centers opened in various parts of our
country have, to some extent, eased the burden of the courts
but we are still in the tunnel and the light is far away. On
more than one occasion, this court has reminded the Central
Government, State Governments and other instrumentalities
as well as to the various banking institutions to take earnest
efforts to resolve the disputes at their end. At times, some
give and take attitude should be adopted or both will sink.
Unless, serious questions of law of general importance arise
for consideration or a question which affects large number of
persons or the stakes are very high, courts jurisdiction
cannot be invoked for resolution of small and trivial matters.
We are really disturbed by the manner in which those types
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of matters are being brought to courts even at the level of
Supreme Court of India and this case falls in that category.
27. In Punjab State Power Corporation Ltd., Patiala
and others vs. Atma Singh Grewal (2014) 13 SCC 666, the
Hon’ble Supreme Court noted the facts that Courts are burdened
with unnecessary litigation primary for the reason that the
Government or Public Sector Undertakings etc. decide to litigate
even when there is no merit in the claim. It would be apposite to
refer to the relevant observations, which read thus:
8. It is not the first time that the Court had to express its
anguish. We would like to observe that the mind set of the
Government agencies/undertakings in filing unnecessarily
appeals was taken note of by the Law Commission of India
way back in 1973, in its 54th report. Taking cognizance of
the aforesaid report of the Law Commission as well as
National Litigation Policy for the States which was evolved
at an All India Law Ministers Conference in the year 1972,
this Court had to emphasize that there should not be
unnecessary litigation or appeals. It was so done in the
case of Mundrika Prasad Singh v. State of Bihar, 1979 4
SCC 701. We would also like to reproduce the following
words of wisdom expressed by Justice V.R. Krishna Iyer,
who spoke for the Bench, in Dilbagh Rai Jarry v. Union of
India and Ors., 1974 3 SCC 554.
25……..5…... But it must be remembered that theState is no ordinary party trying to win a case
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against one of its own citizens by hook or by crook;for the State's interest is to meet honest claims,vindicate a substantial defence and never to score atechnical point or overreach a weaker party to avoid ajust liability or secure an unfair advantage, simplybecause legal devices provide such an opportunity.The State is a virtuous litigant and looks withunconcern on immoral forensic successes so that if onthe merits the case is weak, government shows awillingness to settle the dispute regardless of prestigeand other lesser motivations which move privateparties to fight in court. The lay out on litigation costsand executive time by the State and its agencies is sostaggering these days because of the large amount oflitigation in which it is involved that a positive andwholesome policy of cutting back on the volume oflaw suits by the twin methods of not being temptedinto forensic show downs where a reasonableadjustment is feasible and ever offering to extinguisha pending proceeding on just terms, giving the legalmentors of government some initiative and authorityin this behalf.
9. In its 126th Report (1988), the Law Commission of India
adversely commented upon the reckless manner in which
appeals are filed routinely. We quote hereunder the relevant
passage therefrom:
2.5. The litigation is thus sometimes engendered byfailing to perform duty as if discharging a trust. Powerinheres a kind of trust. The State enjoys the power todeal with public property. That power has to bedischarged like a trust keeping in view the interests ofthe cesti que trust. Failure on this front has been moreoften commented upon by the court which, if it wastaken in the spirit in which it was made, would havelong back energised the Government and the publicsector to draw up its litigation policy. When entirelyfrivolous litigation reaches the doorsteps of theSupreme Court, one feels exasperated by the inactionand the policy to do nothingness evidenced by blindlyfollowing litigation from court to court. Dismissing a
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Special Leave Petition by the State of Punjab, the Courtobserved that the deserved defeat of the State in thecourts below demonstrates the gross indifference of theadministration towards litigative diligence. The courtthen suggested effective remedial measures. It may beextracted:4. We would like to emphasize that Government mustbe made accountable by parliamentary Social audit forwasteful litigative expenditure inflicted onthecommunity by inaction. A statutory notice of theproposed action under Section 80 Code of CivilProcedure is intended to alert the state to negotiate ajust settlement or at least have the courtesy to tell thepotential outsider why the claim is being resisted. NowSection 80 has become a ritual because theadministration is often unresponsive and hardly livesup to the parliament's expectation in continuingSection 80 in the Code despite the Central LawCommission's recommendations for its deletion. Anopportunity for setting the dispute through arbitrationwas thrown away by sheer inaction. A litigative policyfor the State involves settlement of governmentaldisputes with citizens in a sense of conciliation ratherthan in a fighting mood. Indeed, it should be adirective on the part of the State to empower its lawofficer to take steps to compose disputes rather thancontinue them in court. We are constrained to makethese observations because much of the litigation inwhich governments are involved adds to the case loadaccumulation in courts for which there is publiccriticism. We hope that a more responsive spirit will bebrought to bear upon governmental litigation so as toavoid waste of public money and promote expeditiouswork in courts of cases which deserve to be attendedto.
Nearly a decade has passed since the observations but not
a leaf has turned, not a step has been taken, and the Law
Commission is asked to deal with the problem.
2.6. A little care, a touch of humanism, a dossier ofconstitutional philosophy and awareness of futility ofpublic litigation would considerably improve the
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situation which today is distressing. More often it isfound that utterly unsustainable contentions are takenon behalf of Government and public sectorundertakings.
10. Even when Courts have, time and again, lamented
about the frivolous appeals filed by the Government
authorities, it has no effect on the bureaucratic psyche. It is
not that there is no realisation at the level of policy makers
to curtail unwanted Government litigation and there are
deliberations in this behalf from time to time. Few years ago
only, the Central Government formulated National Litigation
Policy, 2010 with the "vision/mission" to transform the
Government into an efficient and responsible litigant. This
policy formulated by the Central Government is based on
the recognition that it was its primary responsibility to
protect the rights of citizens, and to respect their
fundamental rights and in the process it should become
"responsible litigant". The policy even defines the expression
'responsible litigant' as under:
Responsible litigant" means
(i) That litigation will not be resorted to for the sake of
litigating.
(ii) That false pleas and technical points will not be
taken and shall be discouraged.
(iii) Ensuring that the correct facts and all relevant
documents will be placed before the Court.
(iv) That nothing will be suppressed from the Court and
there will not attempt to mislead any court or tribunal.
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2. That Government must cease to be a compulsive
litigant. The philosophy that matters should be left to
the courts for ultimate decision has to be discarded.
The easy approach, "Let the Court decide", must be
eschewed and condemned.
3. The purpose underlying this policy is also to reduce
government litigation in courts so that valuable court
time would be spent in resolving other pending cases
so as to achieve the goal in the national legal mission
to reduce average pendency time from 15 years to 3
years. Litigators on behalf of the Government have to
keep in mind the principles incorporated in the national
mission for judicial reforms which includes identifying
bottlenecks which the Government and its agencies
may be concerned with and also removing
unnecessary government cases. Prioritisation in
litigation has to be achieved with particular emphasis
on welfare legislation, social reform, weaker sections
and senior citizens andother categories requiring
assistance must be given utmost priority.
11. This policy recognises the fact that its success will
depend upon its strict implementation. Pertinently there is
even a provision of accountability on the part of the officers
who have to take requisite steps in this behalf. The policy
also contains the provision for filing of appeals indicating as
to under what circumstances appeal should be filed. In so
far as service matters are concerned, this provision lays
down that further proceedings will not be filed in service
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matters merely because the order of the Administrative
Tribunal affects a number of employees. Also, appeals will
not be filed to espouse the cause of one section of
employees against another.
12. The aforesaid litigation policy was seen as a silver
living to club unnecessary and uncalled for litigation by this
Court in the matter of Urban Improvement Trust, Bikaner v.
Mohan Lal, 2010 1 SCC 512in the following manner:
11. The Central Government is now attempting to dealwith this issue by formulating realistic and practicalnorms for defending cases filed against theGovernment and for filing appeals and revisionsagainst adverse decisions, thereby eliminatingunnecessary litigation. But it is not sufficient if theCentral Government alone undertakes such anexercise. The State Governments and the statutoryauthorities, who have more litigations than the CentralGovernment, should also make genuine efforts toeliminate unnecessary litigations. Vexatious andunnecessary litigations have been clogging the wheelsof justice for too long, making it difficult for courts andtribunals to provide easy and speedy access to justiceto bona fide and needy litigants.
13. Alas, inspite of the Government's own policy and
reprimand from this Court, on numerous occasions, there is
no significant positive effect on various Government officials
who continue to take decision to file frivolous and vexatious
appeals. It imposes unnecessary burden on the Courts. The
opposite party which has succeeded in the Court below is
also made to incur avoidable expenditure. Further, it causes
delay in allowing the successful litigant to reap the fruits of
the judgment rendered by the Court below.
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14. No doubt, when a case is decided in favour of a party,
the Court can award cost as well in his favour. It is stressed
by this Court that such cost should be in real and
compensatory terms and not merely symbolic. There can be
exemplary costs as well when the appeal is completely
devoid of any merit. [See Rameshwari Devi and Ors. v.
Nirmala Devi and Ors., 2011 8 SCC 249]. However, the
moot question is as to whether imposition of costs alone will
prove deterrent? We don't think so. We are of the firm
opinion that imposition of cost on the State/PSU's alone is
not going to make much difference as the officers taking
such irresponsible decisions to file appeals are not
personally affected because of the reason that cost, if
imposed, comes from the government's coffers. Time has,
therefore, come to take next step viz. recovery of cost from
such officers who take such frivolous decisions of filing
appeals, even after knowing well that these are totally
vexatious and uncalled for appeals. We clarify that
such an order of recovery of cost from the concerned officer
be passed only in those cases where appeal is found to be
exfacie frivolous and the decision to file the appeal is also
found to be palpably irrational and uncalled for.
28. In Subrata Roy Sahara vs. Union of India and
others (2014) 8 SCC 470, it was observed by the Hon’ble
Supreme Court that State and its agencies litigate endlessly just
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because of lack of responsibility to take decision. It was observed
as under:
This abuse of the judicial process is not limited to any
particular class of litigants. The State and its agencies
litigate endlessly up to the highest Court just because of the
lack of responsibility to take decisions. So much so that we
have started to entertain the impression that all
administrative and executive decisionmaking are being left
to courts just for that reason. In private litigation as well, the
litigant concerned would continue to approach the higher
Court, despite the fact that he had lost in every court
hithertobefore. The effort is not to discourage a litigant in
whose perception his cause is fair and legitimate. The effort
is only to introduce consequences if the litigant’s perception
was incorrect and if his cause is found to be not fair and
legitimate, he must pay for the same. In the present setting
of the adjudicatory process, a litigant no matter how
irresponsible he is suffers no consequences. Every litigant,
therefore, likes to take a chance even when counsel’s advice
is otherwise.
29. Similar reiteration of law can be found in a fairly
recent judgment of the Hon’ble Supreme Court in Rajendra
Shankar Shukla and others vs. State of Chhattisgarh and
others (2015) 10 SCC 400, wherein, the Hon’ble Supreme Court
held in para 32 as under:
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“32. Further, this Court has frowned upon the practice of
the Government to raise technical pleas to defeat the rights
of the citizens in Madras Port Trust vs. Hymanshu
International (1979) 4 SCC 176, wherein it was opined that
it is about time that governments and public authorities
adopt the practice of not relying upon technical pleas for the
purpose of defeating legitimate claims of citizens and do
what is fair and just to the citizens. Para 2 from the said
case reads thus : (SCC p.177)
“2. We do not think that this is a fit case where weshould proceed to determine whether the claim of therespondent was barred by Section 110 of the MadrasPort Trust Act (2 of 1905). The plea of limitation basedon this section is one which the court always looksupon with disfavour and it is unfortunate that a publicauthority like the Port Trust should, in all morality andjustice, take up such a plea to defeat a just claim of thecitizen. It is high time that governments and publicauthorities adopt the practice of not relying upontechnical pleas for the purpose of defeating legitimateclaims of citizens and do what is fair and just to thecitizens. Of course, if a government or a publicauthority takes up a technical plea, the Court has todecide it and if the plea is wellfounded, it has to beupheld by the court, but what we feel is that such aplea should not ordinarily be taken up by agovernment or a public authority, unless of course theclaim is not wellfounded and by reason of delay infiling it, the evidence for the. purpose of resisting sucha claim has become unavailable. Here, it js obviousthat the claim of the respondent was a just claimsupported as it was by the recommendation of theAssistant Collector of Customs and hence in theexercise of our discretion under Article 136 of theConstitution, we do not see any reason why we shouldproceed to hear this appeal and adjudicate upon the
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plea of the appellant based on Section 110 of theMadras Port Trust Act (2 of 1905).”
30 It needs to be noticed that respondent No.2, who very
well knew that there had been inaction on his part or his officials
part, if not earlier, then at least at the time of filing of reply in the
instant petition, instead of candidly admitting such lapses, still
chose to claim that everything in his department was hunky
dory. The State is expected to contest the litigation in a fair and
square manner and not to conceal anything from the Court.
31 As held by the Hon'ble Supreme Court, the
respondents could have been well within their right not to fill up
the posts, but that could have only been for some valid and
cogent reasons. However, here, there is no reason forthcoming
from the side of respondent No.2 and rightly so, because the
entire fault lies upon respondent No.2 and its officials/officers,
who dumped the file.
32 It is high time that respondent No.2 put his house in
order. Such incidence(s) cannot be simply brushed aside and
permitted to be swept under the carpet.
33 Therefore, we direct the Principal Secretary (Health)
to conduct an inquiry into the entire episode and fix
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responsibility of the erring officials/officers irrespective of their
rank(s) and profile(s) and irrespective of the fact whether they
are serving or retired. This exercise be completed within eight
months from today and report compliance on 22.3.2022.
34 However, now the moot question is as to what relief (if
any) can be granted to the petitioner.
35 It is not in dispute that even after offering
appointment to 22 candidates from the waiting list, 3 posts were
still lying vacant on account of nonjoining of the candidates,
which were required to be filled up from the next in the waiting
list, when the panel was still live unless there was a decision to
the contrary. Since there is no such decision, therefore, the
petitioner cannot be made to suffer for no fault on his part or on
account of the fault of respondent No.2 and its officials/officers.
36 Accordingly, while allowing this writ petition, we
direct respondent No.3 to sponsor names of three candidates
including the petitioner within a period of one week from today
and on such sponsorship, respondent No.2 shall issue
appointment order(s) to the petitioner and two others as
Laboratory Assistant (Allopathy) on contract basis, OBC (UR)
Post Code 654.
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37 Since the petitioner and the remaining two
candidates, who are to be given appointment, have not worked
against the said post(s), they shall not be entitled to any
remuneration for the period of their nonemployment, however in
case seniority is maintained of the similarly situated/appointed
persons, then these persons shall be entitled to seniority on
notional basis from 23.11.2019 the date when 22 candidates
from waiting list were offered appointment as Laboratory
Assistant and shall be placed at the bottom of the seniority list.
38 Pending application(s), if any, also stands disposed of.
The parties are left to bear their own costs.
(Tarlok Singh Chauhan) Judge
(Satyen Vaidya) 20.7.2021 Judge (pankaj)
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