High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH AT

SHIMLA

CWPOA No. 86 of 2019 a/w

CWPOA No. 137 of 2019

Reserved on: 10.9.2020

Decided on : 17.9.2020

CWPOA No. 86 of 2019

Amar Nath

…Petitioner

Versus

State of H.P. and others

…Respondents

CWPOA No. 137 of 2019

Rai Singh

…Petitioner

Versus

State of H.P. and others

…Respondents

___________________________________________

Coram

Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes

________________________________________________

For the petitioner(s) : Mr. Karan Singh Kanwar,

Advocate.

For the respondents : Mr. Hemant Vaid, Addl. A.G.

with Mr. Vikrant Chandel, Dy.

A.G. for the respondent(s)

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Mr. Vivek Singh Attri, Advocate,

for the private respondents.

(through video conferencing)

Sureshwar Thakur, Judge

Since writ petitions, respectively bearing No(s).

CWPOA No. 86 of 2019 , and, No. CWPOA No. 137 of

2019, are directed against a common thereto

notification, of, 1.10.2016, hence both the afore writ

petitions, are, amenable for common verdict (s), being

pronounced thereon(s).

2. The apposite advertisement, is, borne in

Annexure, A -5, wherethrough the respondents

concerned, strived to make recruitment(s), of, multi

purpose workers, vis-à-vis, Nahan Circle. The last date,

prescribed therein, for applications, being lodged, by the

aspirants concerned, is, 1.12.2016. Through both the

afore writ petitions, the writ petitioner(s), cast

challenge(s), vis-à-vis, the awarding of marks, to the

selected candidates, who become arrayed as, private

respondents, in both the writ petitions. The challenge,

as, made by the writ petitioner(s), vis -a-vis, the,

unfortunate happening(s), of, erroneous awarding(s),

of, marks, and, consequent therewith occurrence, of,

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flawed selection(s), of, the private respondents, in both

the writ petitions, is, focused upon, (a) the awarding of

marks, to, each of the selected candidates, on anvil, of

their apposite experience certificate(s), hence palpably

contravening the mandate borne, in clause (k) and (kh),

of, Annexure A-5, (i) wherein, vis-à-vis, the contested

besides apposite experience certificate (s), qua

wherewith, marks became allotted, to the arrayed hence

private respondents, rather becoming, untenably meted

to them, (ii) as, the apposite experience certificate(s)

hence possessed, by the selected private respondents,

emanated not from any, of, the government

undertaking(s) or agencies, as become enumerated, in,

clause (k) and (kh), of, Annexure A -5, rather all the

experience certificates, emanated from purportedly

prohibited private entities/institutions concerned .

However, the afore made contest, vis-à-vis, awarding(s)

of marks, to the arrayed herein private respondents, in

both the writ petitions, has yet, to, withstand the test,

of, the apposite rules, and also, the touchstones, borne

in various Annexures, appended with the reply(s), filed

to the writ petition(s), by the respondent(s) concerned.

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Hence before proceeding to adjudge the

meritworthiness, or otherwise, of, all the espousals,

raised by the learned counsel, for, the writ petitioners, it

is imperative, to, allude to the certified copy, of, the

apposite Recruitment, and, Promotion Rules, of,

31.5.2016, as become placed on record, by the learned

Addl. A.G. On a reading of clause 7 thereof, which stands

extracted hereinafter:

Minimum

Educational

& other

qualification

required for

direct

recruit(s)

a) Essential Qualifications

(i) He/she should be 8

th

pass from an Institute

recognized by the

Government of HP

(ii) He/she must have an

experience in

Gardening for one

year.

OR

He/she should have

experience of

housekeeping/cooking

for at least one year.

b) Desirable qualification

Knowledge of customs,

manners, and dialects of

Himachal Pradesh and

suitability for appointment in

the peculiar conditions

prevailing in the Pradesh.

Conspicuously, of, the underlined portions thereof, does

pointedly earmark, vis-à-vis, the contested experience

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certificate(s), as relied upon, by the aspirants concerned,

becoming amenable, for, allotment, of, marks, vis-à-

vis, holders thereof, (iii) upon the experience

certificate(s) concerned, making articulation(s), vis-à-

vis, the aspirant(s) concerned, holding experience(s),

either in housekeeping or cooking, and, the tenure, of,

the afore experience, lasting upto one year. Significantly,

the apposite recruitment, and, promotion Rules, came

into force, prior to the issuance, of, Annexure A-5, and

hence held vigor and sanctity, in contemporaniety, vis-à-

vis, the issuance, of, Annex ure A-5, and also,

concomitantly, they also held legal force, in

contemporaniety, vis-à-vis, the makings, of, advertised

post(s), by the respondent -concerned. The afore

extracted clause, of, the Recruitment and Promotion

Rules, does visibly, at the very outset, hence benumb,

the efficacy, of, the afore contentions, made by the

learned counsel, for the petitioner(s), (iv) and its

obviously becoming untenably rested, on the afore

clause, borne in the apposite advertisement notice,

hence embodied in Annexure A-5, (v) and its prescribing

the necessity, of, possession, of, the, afore experience

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certificate(s), vis-à-vis, housekeeping and cooking, by

the selected candidates, besides, with a further

necessity, becoming entailed upon , the aspirant(s)

concerned, to seek allotment, of, marks, qua therewith,

from the selection committee concerned, only upon the

apposite experience certificate(s), emanating from

government agencies, as become spelt therein, (vi)

Reiteratedly, rather prominently with the afore

necessities, as embodied in the advertisement notice,

being graphically beyond the ambit, of, the afore clause-

7, as becomes, embodied in the apposite recruitment,

and, promotion Rules, clause whereof, does not, carry

any evident underlining(s), hence supporting the

making(s), of, the afore necessities, rather in the

advertisement notice. Dehors the above, and, even if the

afore clause (k) and (kh), are visibly, beyond the ambit,

and, amplitude of, clause-7, of, the apposite Recruitment

and Promotion Rules, yet the respondents concerned,

appear to, prior to their receiving, the, apposite

application(s), from the aspirant(s) concerned, (vii)

inasmuch as, on 1.12.2016, hence subsequent to the

issuance, of, Annexure A-5, proceeded to issue Annexure

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R-5, wherein, the apposite experience certificate(s),

appertaining, to, housekeeping/cooking, were, enjoined

to unveil, the apposite experience, lasting for one year,

and, also, therein a mandate, is, borne, vis-à-vis, the

experience certificate(s), qua, housekeeping, and,

cooking, being valid, upon, theirs being issued even, by,

private institution(s)/entrepreneurs, (c) and, thereupon,

through Annexure R-5, the respondent concerned, did

mete compliance, with clause-7, of, the apposite

Recruitment and Promotion Rules, clause whereof, as

aforestated, does not, entail the necessity, of, the afore

experience certificates, emanating from any government

agency, or, government undertaking, rather the afore

clause legitimizing, the holding (s), of, apposite

experience certificate, even if, they became issued, by

private agencies or entities concerned

3. The effect, of, the afore discussion, is, that

this Court, holds with fullest aplomb, and, reiterates the

afore inference, hence appertaining to the apposite

experience certificate(s), as, held by the private/selected

respondents concerned, hence not breaching the afore

predominant clause-7, and, even if any purported

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breaches, arise, qua clause (k), and, (kh), as

become(s) borne in Annexure A-5, thereupon rather the

afore purported breach(es), being wholly rudderless

and, not meriting any validation, by this Court.

4. However, the learned counsel appearing for

the petitioner(s), has, also proceeded to make , a,

submission, before this Court, that, with the afore

alluded corrigendum, borne in Annexure R -5, though

hence bringing consonance , with clause-7, of, the

apposite Recruitment and Promotion Rules, and,

conspicuously, with its appertaining, to, experience

certificate(s), relating to experience(s), of, house-

keeping and cooking, and their tenure, lasting upto one

year, besides therethrough(s) validation becoming

conferred upon them, even if they became issued, by

private organization(s), rather yet Annexure R-5,

contravening clause (k) and (kh), of, Annexure A-5, (i)

and, has also proceeded to submit that since Annexure

A-5, became issu ed, on 1.10.2016, and, rather

subsequent thereto, Annexure R-5, became issued, on

9.11.2016, (ii) thereupon, the respondents concerned,

could not, issue Annexure R -5, as thereon(s), the

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mandate, of, the Hon’ble Apex Court, rendered in case,

titled as, Hemani Malhotra versus High Court of Delhi,

reported in 2008 (7) SCC 11, becoming breached, (iii)

especially when, it becomes voiced therein, qua, the

apposite clause, or echoing(s), borne in the apposite

advertisement notice, being un-amenable, for thereafter,

theirs’ becoming changed or altered. However, the afore

submission also, does not, carry any weight, as, clause

(k) and (kh), borne in Annexure A -5, were palpably,

beyond the ambit, of, the apposite mentoring clause-7,

of, the relevant Recruitment and Promotion Rules, and,

(i) thereupon, when through Annexure R -5, the

respondents concerned, strived to harmonize the

essential necessities hence appertaining, to, the apposite

experience certificate(s), obviously with the predominant

clause-7, of, the, Recruitment and Promotion Rules, (ii)

thereupon, there cannot be any invalid departures, of,

transgression(s), by the contesting respondents

concerned, in theirs through Annexure R -5 hence

modifying clause (k) and (kh), as become borne in

Annexure A-5. The reason, for, making the afore

inference, is, grooved in the trite factum, qua none of,

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the afore conditions, prevailing in Annexure A-5, neither

predominating, nor, prevailing upon, mentoring clause-7,

of, apposite Recruitment and Promotion Rules, hence

containing the afore contra therewith, emphatic

underlining(s), nor can, hence any valid striving(s), of,

the respondent concerned, to bring interse harmony,

hence interse clause-7, of, the Recruitment and

Promotion Rules, vis-à-vis, the apposite canonized

necessities when rather amiss in Annexure A-5, become

deprecated, (iii) especially when the relevant selection

process, would become, completely, validated thr ough

issuance, of, Annexure R -5. The further potent

reason(s), for making the afore inference, is, deriveable

from the evident fact, that, the afore corrigendum,

emanating, prior to the initiation, of, the relevant section

process, and, also, when all the participants recoursed all

the relevant selection process(es), hence they cannot

merely in the garb, of, in-correctly entered necessities,

in the advertisement notice, strive for invalidation, of,

awarding, of, marks, to the private respondents, (iv)

reiteratedly, when allotment, of, marks to the private

respondents, on anvil, of their respective apposite

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experience certificate(s), is, governed, and, regulated by

the apposite clause-7, of, the apposite Recruitment, and,

Promotion Rules, and, not by disconcurrent therewith

necessity(ies), as, become borne in the Advertisement

notice.

5. Be that as it may, even if the corrigendum, as,

borne in Annexure R-V, does not, carry therein any ad-

verbatim language, with the one, as borne in Clause 7,

of, the apposite Recruitment and Promotion Rules, and,

even if, the subsequent thereto language, as becomes

employed, in Annexure R-6 and R-7, and appertaining,

to, the purported valid holding(s), of, apposite

experience certificate, also, does not, bear compatibility,

vis-à-vis, the phraseology, borne in Annexure R -5,

Annexure whereof became issued, rather to bring

harmony, with, the peremptory apposite conditions, as

become embodied in the relevant Recruitment and

Promotion Rules, (i) thereupon, also none of the afore

mis-matches, do not, either hold prevalences(s), vis-à-

vis, the predominant Rule(s), as, become borne in the

Recruitment and Promotion Rules, nor also, either

Annexure R-6,nor Annexure R -7, though holding

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enumeration(s), vis-à-vis, the experience certificate(s),

in house-keeping and cooking, rather enjoining theirs’

emanating, from, government agencies, likewise, hold no

tenacity or vigor, nor therefrom any leverage can be

drawn, by the learned counsel for the petitioner(s), for

invalidating all the effects, of, experience certificate(s),

as, held by the selected candidates.

6. In addition, the learned counsel appearing, for

the petitioner(s), has not challenged, either Annexure A-

5, nor Annexure R-6, nor, has he cast any challenge,

upon, the afore extracted clause-7, of, the Recruitment

and Promotion Rules, carrying therein, the afore

underlined prescription(s), vis-à-vis, the aspirants

concerned, becoming entailed with a necessity to

possess, the, apposite experience certificate(s), hence

holding a tenure of one year, and theirs’ emanating from

private organizations or entity(ies), (i) thereupon when

rather the counsel for the petitioner(s), was enjoined,

to, make challenge(s), to, the predominant, and, all

prevailing clause-7, of, the apposite Recruitment and

Promotion Rules, whereas, his making omission(s), qua

therewith, (ii) thereupon, the afore omissions, obviously,

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draw a conclusion, vis-à-vis, the legal potency, and the

legal vigor, of, clause-7,becoming acquiesced by him,

hence to remain both intact and undisturbed, (iii) and

resultantly, this Court is enjoined, to, mete deference

thereto.

7. Moreover, the learned counsel for the petitioner,

has, neither attributed, any specific malafides, to, any of

the members, of, the selection committee concerned, nor

has attributed any specific malafides, to, any of the

officers concerned, who influenced the selection process,

whereas, casting, of, afore specific malafides, both, upon

the member(s), of, the selection committee, or upon the

persons, who influenced them, was, a dire necessity,(i)

for this Court, to, thereafter, upon apposite material qua

therewith becoming adduced, by the petitioner(s), to,

make a conclusion, that awarding of marks, to the

private respondents, on anvil, of, their experience

certificates, or otherwise, on other parameters, being

tainted with vice, of, malafides, (ii) and, thereupon, their

selection becoming, concomitantly, stained, and hence

warranting interference, by this Court. Sequelly, all the

afore omissions, do garner an invincible conclusion, vis-

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à-vis, the selection committee concerned, with, utmost

transparency, and, also with optimal objectivity, hence

allotting the marks, to, the private respondents, on

anvils, of theirs, possessing, the, apposite experience

certificate(s), and, hence, the allotments, or awarding, of

marks, qua therewith, besides qua other parameters,

being not stained with any vice, of, malafide(s).

8. Even otherwise, both the writ petitioners,

participated in the selection process, and, only after their

un-successful participation, in the selection process, they

proceeded to cast a challenge, to selection, of, the

private respondents, against the advertised posts. The

participation, of, the selected candidates , in, the

selection process, does, constitute estopping conduct

against the petitioner, hence against theirs’ at this

belated stage, casting any challenge, vis-à-vis, the

completed selection process, moreso, when no specific

malafides, stand attributed, to, any of the members of

the selection committee, nor vis-à-vis, any purportedly

influencer concerned.

9. Lastly, the learned counsel for the writ

petitioners, has, made a vehement contention, before

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this Court, that the experience certificate(s), of, the

aspirants concerned, as, become appended, with the writ

petition, rather not, making any bespeaking(s) therein,

hence in consonance, with, the norms, as become borne

in clause-7, of, the apposite Recruitment and Promotion

Rules, (i) and thereupon, also no marks, were ,

awardable to the private respondents concerned, rather,

on anvil thereof. However, even the afore contention, is,

rudderless, as a perusal of the apposite exp erience

certificate(s), as become issued, by private

entrepreneurs/private undertaking(s), who, as

aforestated, were, through the mandate cast, in clause-

7, of, the apposite Recruitment and Promotion Rules,

hence authorized to issue, the, apposite experience

certificate, does, disclose, vis-à-vis, the apposite

experience(s) recited therein, lasting upto one year, and,

also vivid echoing(s),become borne therein, vis-à-vis,

the aspirants concerned, either being engaged in the

apposite task of housekeeping or of cooking.

10. Consequently, when the voicing(s), occurring in

the apposite experience certificate, do, fall in tandem or

are in complete alignment, with the peremptory

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mandate, borne in clause-7, of, the apposite Recruitment

and Promotion Rules, (i) and, also, when no further

evidence has become adduced, vis-à-vis, the

experience(s), enumerated therein being fictitious, nor

when evidence became adduced that rather the apposite

experience certificate(s) vis-à-vis some purported

minors, becoming untenably issued, as they were

working for remuneration, thereupon, it is concluded,

qua the purported minors, working gratuitously, as,

apprentice(s), hence with the consent, of, their lawful

guardian(s) (iii) whereupon, vis-à-vis, both one

Abhishek, and one Kamal Chand Sharma, no iota, of,

doubt, can be cast, vis-à-vis, their apposite experience

certificate(s), inasmuch as their being issued, at a

stage, when they were minors, nor it can be concluded

that they were gaining ex perience(s) with

remuneration(s), becoming tendered to them, by the ir

employers concerned. Significantly, also when no

challenge to the experience certificate, of, the afore

Abhishek and one Kamal Chand Sharma, is anchored

upon, the afore ground rather is anchored, upon, the

afore parameter, vis-à-vis, their apposite experience

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certificate(s), rather emanating, from, non-governmental

undertaking(s), whereas, when for all the afore-stated

reasons, the afore contention, has been rejected, (vi)

thereupon also the learned counsel for the petitioner, is,

incapacitated, to, raise the afore onslaught, against, the

afore Abhishek, and, against Kamal Chand Sharma.

11. Consequently, there is no merit in the

petitions, and, the same are dismissed. Also, all pending

application(s), if any, are disposed of. No costs.

(Sureshwar Thakur)

Judge

17.9.2020

Kalpana

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