Hoshiyar Singh vs STATE OF HP
- Court
- High Court of Himachal Pradesh
( 2026:HHC:31275 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
High Court of H.P.
CWPOA No.165 of 2019
Reserved on 15.06.2026
Decided on: 29.07.2026
Uploaded on: 29.07.2026
Hoshiyar Singh ...Petitioner
Versus
State of H.P. and others ...Respondents
Coram
Hon’ble Mr.Justice Jiya Lal Bhardwaj, Judge.
1
Whether approved for reporting? Yes
_________________________________________________
For the petitioner: Mr. Radhey Shyam Gautam,
Advocate.
For the respondents: Mr. Hemant Kumar Verma,
Deputy Advocate General for
respondents No. 1 to 4-State.
Mr. Rajesh Sharma, Advocate for
respondent No.5.
Jiya Lal Bhardwaj, Judge
The petitioner by way of present petition has prayed for
the following substantive reliefs:-
“i ) That impugned selection and appointment of respondent No.
5 to the post of P.E.T. Teacher (C&V) made by the
respondents No. 1 to 4 on the basis of interview conducted
on 28.02.2008 in Distt. Kullu, H.P. may be quashed and set
aside.
ii) That the respondents may be directed to offer appointment
letter to the applicant being at serial No.2 in the merit or in
the alternative direction may be kindly be issued to conduct
fresh interviews for the said post.”
1
Whether the reporters of Local Papers may be allowed to see the judgment?
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High Court of H.P.
2. The facts as emerge from the pleadings are that the
petitioner after doing matriculation in the year 1991, did 10+2 from
the H.P. Board of School Education. Thereafter, he obtained three
years Bachelor of Physical Education (for short ‘B.P.E.’) degree in
the year 2002 from Nagpur University and got his name registered
with Employment Exchange, Anni, District Kullu, H.P. The petitioner
is physically challenged person and has 46% permanent disability of
hearing impairment (Annexure A-3).
3. The respondents-State had decided to fill-up the posts
of Craft and Vocational (for short ‘C&V’) category Teachers and the
name of the petitioner being eligible to hold the post of Physical
Education Teacher (for short ‘P.E.T.’) in District Kullu, H.P. under a
special drive from amongst the reserved category of disabled
persons, was also sponsored by the Employment Exchange, Kullu,
H.P. and the petitioner was issued the interview letter dated
16.01.2008 (Annexure A-4) to remain present in the office of
respondent No.3 on 27.01.2008. A note was given in the interview
letter that the candidates are required to bring with them domicile
certificate of Kullu District issued by the competent authority to
avoid the outsider candidate on fake address.
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4. The petitioner appeared in the interview held on
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27.01.2008, on which date, only two candidates from District Kullu
remained present i.e. petitioner and one Shri Thakur Dass.
However, subsequently, the interviews taken on 27.01.2008 were
cancelled citing the reason that the State Government has
constituted a Selection Committee for the interview of Class-III i.e.
C&V Teachers and other category and the petitioner vide interview
letter dated 23.02.2008 (Annexure A-5) was again directed to
appear before the Special Selection Committee for interview on
28.02.2008 at 10.00 a.m. sharp along-with original documents. The
petitioner appeared in the interview held on 28.02.2008 in the office
of respondent No.4, who was the Chairman of the Selection
Committee and total four candidates, including the petitioner and
three other persons, namely, S/Sh. Thakur Dass from Kullu District,
Praveen Kumar from Mandi District and respondent No.5 from
Hamirpur District, appeared in the interview. After the interview,
respondent No.5 was selected and appointed to the post of P.E.T. in
the pay-scale of Rs.5000-8100/- plus usual allowances as sanctioned
by the Himachal Pradesh Government from time to time vide office
order dated 01.03.2008 (Annexure R-1) issued by respondent No.3
appended with the reply.
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5. The petitioner feeling aggrieved by the appointment of
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respondent No.5 had challenged the same inter alia on the grounds
that neither his name was sponsored by the Employment Exchange
nor any interview letter was issued to him and further one Shri
Praveen Kumar from Mandi District was also interviewed and the
Selection Committee had allowed them to appear in the interview. It
has been averred that the post of P.E.T. (C&V) Teachers category
were proposed to be filled up by the respondents-Department under
special drive from amongst the category of physically disabled
persons exclusively reserved for candidates, who belong to the
District, in which the posts were to be filled up. It has further been
averred that the respondents-Department proposed to fill up certain
similar posts of P.E.T. in District Shimla from amongst the physically
disabled persons and the petitioner and one Shri Thakur Dass were
also the candidates. The petitioner did not appear in the interview,
but said Shri Thakur Dass had appeared in the interview held on
25.02.2008 and was not selected on the ground that he belonged to
District Kullu and being an outsider, he was not considered for
appointment. Similarly, candidates from outside were not considered
and as such the post of P.E.T. in question, which was exclusively
required to be filled up from amongst the candidates belonging to
Kullu District, could not be offered to candidates from outside Kullu,
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as they were not eligible for consideration. The action on the part of
High Court of H.P.
Selection Committee to select and appoint respondent No.5 to the
post of P.E.T. is illegal, unjust, arbitrary, discriminatory and against
the instructions and rules and the same deserves to be quashed and
set aside. The appointment of respondent No.5 has not been made
by the Selection Committee on the basis of merit, but seems to have
been made on extraneous considerations at the behest of influential
persons by ignoring the merit and against the norms/instructions.
The petitioner had been legitimately expecting, after interview, that
he will definitely be selected and appointed on the basis of merit and
performance and thus sought the relief that appointment of
respondent No.5 be quashed and further the respondents-State may
be directed to offer him appointment as P.E.T.
6. Respondents No.1 to 3 filed reply to the petition and
averred that the petition is not maintainable against the
respondents. Respondent No.5 has been interviewed and selected
being a deserving handicapped person of General Physically
Handicapped (Ortho). Hence, his selection is genuine on the basis of
reservation roster point available for the said category. It has further
been averred that since the C&V Teachers category is a District
cadre, hence while issuing interview letter, special note was
mentioned, but the appointment letters of candidates are to be
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issued as per the requisition received from the Labour
High Court of H.P.
Commissioner-cum-Director Employment and Training (Special Cell
of Physically Handicapped) Shimla. As per the letter dated
14.09.2007, it was informed that the requisitions were sought from
the Labour Commissioner-cum-Director Employment and Training
(Special Cell of Physically Handicapped) Shimla. Some of the
Departments were doing this for the first time and some points were
made clear for the benefit of the Department. Hence, due to non-
availability of aforesaid letter, the interviews were conducted on
27.01.2008, which were later on cancelled on 30.01.2008. The
requisition was thereafter sought from Labour Commissioner,
Shimla, who sponsored the names of candidates available and
registered with their office. Hence the special note given in the
interview call letters has no relevance, since the Labour
Commissioner sponsored the names of physically handicapped
person from whole of Himachal Pradesh registered with them and in
view of requisition, office of respondent No.3 conducted interview
and selected the candidate from one of the District, who fulfills all
the conditions. It has further been averred that respondent No.5
was interviewed and selected being a deserving handicapped person
of General Physically Handicapped (Ortho), since the post was
reserved for General Physically Handicapped (Ortho). The selection
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of respondent No.5 was pleaded to be genuine. It has also been
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averred that the petitioner belongs to General Handicapped (hearing
impaired), but the post was reserved for SC/PH (hearing impaired),
hence the petitioner was not eligible for selection as such and thus
not appointed.
7. Respondent No.5 did not file reply to the petition.
8. The petitioner filed rejoinder to the reply filed by
respondents No.1 to 3 and controverted the facts. It has also been
averred that the respondents had failed to mention in both the
interview letters that the post was reserved for physically
handicapped persons or reserved for SC/ST or for Physically
handicapped (Ortho) or hearing impaired and only a note has been
given that the post was to be filled up from the candidates
belonging to District Kullu. A perusal of Annexure R-II attached with
the reply reveals that the post was reserved for SC/PH (hearing
impaired), then why candidate from General Ortho category was
selected/appointed. Further, when roster was available with the
respondents then why candidates from other categories were called
for attending the interview. The Hon’ble Supreme Court in Mahesh
Gupta and others vs. Yashwant Kumar Ahirwar and others,
AIR 2007 SC 3136 has held that ‘A disabled is a disabled’. The
question of making any further reservation on the basis of caste,
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creed or religion ordinarily may not arise. They constitute a special
High Court of H.P.
class.
9. I have heard the learned counsel for the parties and
also perused the record carefully.
10. As per the call letters, it was not mentioned that the
post, to be filled up from the P.E.T. (hearing impaired) was reserved
for Scheduled Caste category. Even if the post was reserved for
Scheduled Caste category (hearing impaired), it was against the
mandate contained in the judgment passed by the Hon’ble Supreme
Court in Mahesh Gupta’s case (supra). The Hon’ble Supreme
Court has succinctly dealt with the issue that the post under the
physically handicapped category cannot be reserved for reserved
category. This Court had summoned the record and as per the
same, the post of P.E.T. was reserved for SC physically handicapped
(hearing impaired) and one post for General Physically Handicapped
(Ortho) was also reserved. However, if the interview conducted on
27.01.2008 is perused, the petitioner was interviewed for the post
and he secured 38.11 marks, whereas Thakur Dass another
candidate who appeared under the same category of hearing
impaired secured 37.56 marks. At that point of time, the post of
hearing impaired was not reserved for SC category and, therefore,
the action on the part of respondents-State in not selecting the
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petitioner only for the reason that the post was reserved for SC
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Physically Handicapped (hearing impaired) and he belongs to
general category in the subsequent interview on 28.02.2008 is
illegal, arbitrary and unconstitutional. The post under the physical
handicapped category could not have been reserved for Scheduled
Caste category.
11. The Hon’ble Supreme Court in the aforementioned
judgment in Mahesh Gupta’s case (supra) has held as under:-
10. The State in terms of Article 16 of the Constitution of
“
India may make two types of reservations vertical and
horizontal. Article 16(4) provides for vertical reservation;
whereas Clause (1) of Article 16 provides for horizontal
reservation.
11. The State adopted a policy decision for filling up the
reserved posts for handicapped persons. A special drive was
to be launched therefor. The circular letter was issued only
for the said purpose. A bare perusal of the said circular
letter dated 29.03.1993 would clearly show that the State
had made 3% reservation for blinds and 2% for other
physically handicapped persons. Such a reservation falling
within Clause (1) of Article 16 of the Constitution has
nothing to do with the object and purport sought to be
achieved by reason of Clause (4) thereof.
12. Disability has drawn the attention of the worldwide
community. India is a signatory to various International
Treaties and Conventions. The State, therefore, took a
policy decision to have horizontal reservation with a view to
fulfill its constitutional object as also its commitment to the
international community. A disabled is a disabled. The
question of making any further reservation on the
basis of caste, creed or religion ordinarily may not
arise. They constitute a special class. The
advertisement, however, failed to mention in regard to the
reservation for handicapped persons at the outset, but, as
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noticed hereinbefore, the vacant posts were required to be
filled up for two categories of candidates; one for
Scheduled Castes and Scheduled Tribe candidates and
other for handicapped candidates. Handicapped candidates
have not been further classified as belonging to Scheduled
Castes, Scheduled Tribes and general category candidates.
It is a travesty of justice that despite the State clarified its
own position in its order dated 1.01.2004 and stated that
the posts were vacant under the handicapped quota but it
completely turned turtle and took a diagonally opposite
stand when a contempt petition was filed. In its reply in the
said proceedings, reference was made to the
aforementioned order dated 1.01.2004 but within a short
time, viz., on 4.02.2004 it opined on a presumption that as
the word "handicapped" was not mentioned in the heading
of advertisement they were meant only for Scheduled Caste
and Scheduled Tribe candidates. Rule of Executive
Construction was given a complete go bye. Reasonableness
and fairness which is the hallmark of Article 14 of the
Constitution of India was completely lost sight of. The
officers of the State behaved strangely. It prevaricated its
stand only because a contempt proceeding was initiated. If
the State was eager to accommodate the writ petitioner
respondent, it could have done so. It did not take any
measure in that behalf. It chose to terminate the services of
some of the employees who had already been appointed.
Such a course could not have been taken either in law or in
equity. The State is expected to have a constitutional
vision. It must give effect to the constitutional mandate.
Any act done by it should be considered to have been
effected in the light of the provisions contained in Part IV of
the Constitution of India. The State in terms of the
provisions contained in Part IV should have given effect to
the principles embodied in Article 39 of the Constitution of
India. Whereas a reasonable reservation within the
meaning of Article 16 of the Constitution of India should not
ordinarily exist, 50%, as has been held by this Court
in Indra Sawhney v. Union of India [1992 Supp (3) SCC
212: AIR 1993 SC 477], reservation for women or
handicapped persons would not come within the purview
thereof.”
High Court of H.P.
12. Since the Hon’ble Supreme Court has held that the ‘a
disabled is a disabled’ and the question of making any further
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reservation on the basis of caste, creed or religion ordinarily may not
High Court of H.P.
arise, the action on the part of the respondents to subsequently
reserve the post for Scheduled Caste category (hearing impaired) is
illegal, arbitrary and against the mandate of law laid down by the
Hon’ble Supreme Court in the aforesaid judgment. A perusal of the
result sheet shows that the post of P.E.T. under physical
handicapped category (hearing impaired) to which the petitioner
belongs was not filled up and this fact is also not been disputed by
the respondents while filing reply to the petition.
13. Learned counsel for the petitioner had vehemently
argued that the appointment of respondent No.5 is illegal for the
reason that he belongs to another District. The said contention
cannot be accepted for the reason that the disabled who belonged
to the State of Himachal Pradesh had every right to be considered
for appointment to the post under the category and such restriction
even if imposed was totally arbitrary and illegal.
14. The another plea raised by learned counsel for the
petitioner that one Shri Thakur Dass who, had appeared in District
Shimla was ousted only on the ground that he belonged to District
Kullu, is concerned, the said action on the part of the Selection
Committee was wrong and illegal, but since he did not raise the
issue regarding his rejection, this Court is not entering into that
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arena. The respondents-State cannot restrict the appointment to a
High Court of H.P.
particular District to a physically challenged person and thus the said
plea is rejected.
15. However, the action on the part of the respondents-
State to reserve the post of P.E.T. to be filled up from physically
challenged person of Scheduled Caste category is illegal, arbitrary,
discriminatory and unconstitutional. Since the petitioner had
immediately approached the Court after selection of respondent
No.5 and his candidature was not considered in the subsequent
interview held on 28.02.2008, only for the reason that the post was
reserved for Scheduled Caste category and he belongs to General
category, he being in merit in the first interview and the another
person did not approach the Court, at this stage asking the
respondents to conduct the fresh interview to offer the appointment
would not serve the purpose and, hence, this Court as a special case
is directing the respondents-State to offer the appointment to the
petitioner on the post of P.E.T. since he is a physically challenged
person and special drive was initiated to fill-up the posts from the
categories of the physically challenged persons from the date when
respondent No.5 was appointed with all consequential benefits,
except monetary benefits, which would be notional. The Court is
also alive of the fact that earlier interview conducted by respondent
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No.3 was cancelled, but the Court cannot ignore the fact that when
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the petitioner was earlier interviewed, the post was not reserved
and it seems that it has been done subsequently without any
rationale and against the law as mentioned above.
16. Consequently, the present petition is allowed and the
respondents-State is directed to offer appointment to the petitioner
to the post of P.E.T. from the date when respondent No.5 has been
offered the appointment w.e.f. 01.03.2008 with all consequential
benefits, except monetary benefits, which would be notional. In
case the respondents-State does not offer appointment to the
petitioner within three months from today, he shall be granted the
salary after expiry of three months from today.
17. The writ petition is disposed of in the aforesaid terms.
No order as to costs. Pending applications, if any, also stand
disposed of.
( Jiya Lal Bhardwaj )
th
29 July, 2026 Judge
(naveen)
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