High Court of Punjab and Haryana, Chandigarh
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Jagminder Singh @Joginder Singh and anot v. Union of India & Ors. - CWP-13090-2005  RD-P&H 3693 (4 July 2006)
IN THE HIGH COURT OF PUJAB AND HARYANA AT CHANDIGARH.
Case No. : C.W.P.No.13090 of 2005
Date of Decision : March 24, 2006.
Jagminder Singh @
Joginder Singh and another ..... Petitioners Vs.
State of Haryana and others ..... Respondents Coram : Hon'ble Mr.Justice J.S.Khehar
Hon'ble Mr.Justice P.S.Patwalia
* * *
Present : Mr.S.K.Bhardwaj, Advocate
for the petitioners.
Mr.Harish Rathee, Senior DAG, Haryana
Ms.Alka Chatrath, Advocate
for respondents no.3 and 4.
* * *
P.S.Patwalia, J. :
The petitioners have filed the present writ petition claiming appointment to the post of Workshop Attendant on the ground that persons lower in merit to them in the joint merit list prepared by the respondent- State are in service. The petitioners' claim arises from the following factual matrix.
C.W.P.No.13090 of 2005 2
The Director, Industrial Training and Vocational Education, Haryana advertised 64 posts of Workshop Attendants, out of which 36 were in the open category and the rest in various reserved categories including 14 for the Backward Class candidates. In spite of the fact that petitioners had applied for these posts, they were not interviewed for being considered for appointment on these posts. Without considering the petitioners, appointment letters were issued in March 1998 on the basis of a select list prepared by the department. The petitioners being aggrieved against their non-consideration as also selection and appointment made, filed C.W.P.No.11767 of 1998. In that writ petition, even though the petitioner and other candidates had challenged the selection, however, the matter was decided by this Hon'ble Court with the following directions :- "The question that remains to be answered is that at this stage what relief should be granted to the petitioners for having been denied the right of consideration. According to us, the best course would be that the petitioners should be interviewed by a similarly constituted Selection Committee for Jind Zone which was constituted for interviewing the candidates on March 17, 1998 and they be also interviewed with the same criteria as the candidates were interviewed on March 17, 2000.
If all or any one of them make(s) the grade better than any of the candidate(s) appointed in the general category, then as many candidates who had already been appointed might have to make room for the petitioners.
If the posts are lying vacant, in that eventuality the selected persons need not be disturbed." As a result of the directions aforementioned, the petitioners were interviewed afresh. In the meanwhile, a complaint was also made C.W.P.No.13090 of 2005 3
against the merit list prepared by the department. The complaint was inquired and it was found that the merit list initially prepared was without adhering to or following the order of merit. Accordingly, a fresh merit list was prepared. The petitioners were also included in this list. Petitioner no.1, who belongs to General Category, was placed at merit no.68-A and petitioner no.2, who belongs to Backward Class "A" Category, was placed at merit no.13-A in the fresh merit list prepared after the petitioners were interviewed.
On preparation of the fresh list, it transpired that some candidates were lower in merit and did not deserve appointment whereas others higher in merit were to be appointed. These candidates included one Shri Dharmender Singh in the General Category, who had merit rank of 69, Shri Ajmer Singh in the General Category having merit no.111 and Shri Safia in the Backward Class "A" Category having merit no.18. The State Government issued show cause notices to the aforementioned candidates and after giving them opportunity of being heard, terminated their services vide order issued in January, 2001. The aforementioned three persons along with others, whose services were terminated, filed writ petitions in this Court, which were ultimately dismissed by a learned Single Judge. The matter was then taken up in appeal. The Division Bench allowed these LPAs (LPA Nos.28, 29, 51 and 52 of 2002) as also LPAs filed by the aforementioned three candidates, vide orders dated February 21, 2002, with the following directions :-
"We have considered the respective arguments.
In our opinion, the appeals deserve to be allowed because dismissal of their petitions by the learned Single Judge is based on a patently erroneous interpretation of the directions given by the Division Bench in CWP Nos.11767 and 11962 of 1998 that selected candidates C.W.P.No.13090 of 2005 4
should not be disturbed if vacant posts of Workshop Attendant are available. If the said direction is considered in the backdrop of the fact that the candidates who had been selected on the basis of interviews held in March, 1998 had been impleaded as party respondent in those petitions and, therefore, they did not get opportunity to represent their cause, there can be no difficulty in holding that the Court wanted to protect the services of those who had already been appointed on the basis of joint merit list. If the Division Bench, which had dealt with CWP Nos.11767 and 11962 of 1998, had been apprised of the true position of vacancies, then it would have given a clear direction to the official respondents to adjust those who were already in service. However, as the respondents had misrepresented the facts about the vacancy position, the Bench did not give explicit direction and felt satisfied by directing that they may not be disturbed if vacant posts are available. In our considered view, that direction has to be interpreted as entitling the appellants to be adjusted against the posts which were available as on the date of preparation of fresh combined merit list and as a large number of vacant posts were available on that day, the cancellation of their appointments cannot be sustained."
The Division Bench, therefore, was clearly of the view that those persons who were already in service, were to be adjusted against posts which were available on the date of preparation of fresh combined merit list.
The Division Bench further concluded that on that date a large number of C.W.P.No.13090 of 2005 5
vacant posts were actually available. On this basis, cancellation of appointment of these candidates was annulled.
Thereafter, some other candidates who were higher in merit than Dharmender Singh and Ajmer Singh filed CWP No.6717 of 2004 claiming that once candidates lower in merit than them were in service, there was no justification to deny appointment to them as well. The said writ petition being CWP No.6717 of 2004 was allowed by a Division Bench of this Court with the following order :- "We have heard the learned counsel for the parties.
It appears apparent that two persons, i.e.
Dharmender Singh and Ajmer Singh, who were at Sr.No.69 and 111 respectively in the merit list have been taken into service in compliance of the order of this Court dated 5.3.2002 passed in Latters Patent Appeal No.312 of 2002. It is also the conceded position that in this very list the petitioners figured at Sr.No.62 and 76 respectively. It has been pointed out by Mr.Anmol Rattan Sidhu, the learned counsel for the respondents- State that the petitioners have been left out on account of the fact that Dharmender Singh and Ajmer Singh had to be adjusted as a consequence of the orders of this Court.
The fact that the petitioners are higher in merit, however, has not been denied. In these circumstances, we see no reason as to why while re-casting the list and making appointments there under, the petitioners, who were higher in merit to Dharmender Singh and Ajmer Singh have been left out. We accordingly direct the respondents to re-consider the matter in the light of the C.W.P.No.13090 of 2005 6
above observations and take a decision within a period of two months from the date that a certified copy of this order is supplied to them.
A reading of this order shows that the court was of the view that there was no reason why the petitioners therein, who were higher in merit than Dharmender Singh and Ajmer Singh should be not be offered appointment while these two persons were in service.
The facts of the present case also reveal that the petitioners herein are higher in merit than the candidates who have been appointed. It is the conceded position that petitioner no.1 is at Sr.No.68-A while Dharmender Singh and Ajmer Singh are at Sr.No.69 and 111 i.e. lower in merit than petitioner no.1. Similarly, petitioner no.2 is at Sr.No.13-A and Shri Safia, who is in service, has been appointed at Sr.No.18 i.e. lower in merit than petitioner no.2 in the Backward Class "A" Category. Since persons lower in merit than the petitioners are in service, we are of the opinion that the petitioners, who are higher in merit, also are entitled to be appointed. In this conclusion of ours, we are fortified by the directions given by a Division Bench of this Court in CWP No.6717 of 2004.
At this stage, it would be necessary to deal with an objection raised by Shri Harish Rathee, Senior DAG, Haryana. Referring to paragraph-9 of the Written Statement, Shri Rathee submits that there are no vacant posts of Workshop Attendants available to accommodate the petitioners. It is apposite to note here that in December 2000/January 2001, services of 7 candidates in the General Category and one candidate in the Backward Class "A" Category, were terminated in view of the directions given by this court in Civil Writ Petition No.11767 and 11962 of 1998, which are as hereunder :-
"The question that remains to be answered is that C.W.P.No.13090 of 2005 7
at this stage what relief should be granted to the petitioners for having been denied the right of consideration. According to us, the best course would be that the petitioners should be interviewed by a similarly constituted Selection Committee for Jind Zone which was constituted for interviewing the candidates on March 17, 1998 and they be also interviewed with the same criteria as the candidates were interviewed on March 17, 2000. If all or any one of them make(s) the grade better than any of the candidate(s) appointed in the General Category, then as many candidates who had already been appointed might have to make room for the petitioners. If the posts are lying vacant in that eventuality the selected persons need not be disturbed.
However, the petitioners, if get selected, would get their seniority as per their merit which will be determined as aforesaid. On appointment as such w.e.f. the dates the persons who may be lower in merit had been appointed the petitioners would not get any arrears of pay but such a date should otherwise reckon for benefit in their service career."
These candidates filed writ petitions against their termination which were, in the first instance, dismissed by the learned Single Judge.
The LPA Bench, however, while deciding the Latters Patent Appeal (LPA Nos.28, 29, 51 and 52 of 2002), vide their orders dated February 21, 2002 (already quoted herein above) held that the court in CWP No.11767 and 11962 of 1998 wanted to protect the services of all those, who had already been appointed on the basis of the initial merit list. The Division Bench was further of the opinion that the aforementioned direction had to be C.W.P.No.13090 of 2005 8
interpreted as entitling those candidates to be adjusted against posts which were available as on the date of preparation of the fresh merit list. The Division Bench further held that a number of vacant posts were available on that date. Therefore, cancellation of appointment of the candidates lower in merit was set aside. In view of the aforesaid finding of the Division Bench that the vacancy position had to be considered on the date when the fresh list was again prepared and the further finding that on that date, vacancies were actually available, the argument raised by Shri Rathee can not be accepted.
Accordingly, we allow this writ petition and direct the respondents to appoint the petitioners as Workshop Attendants. The appointment as such would be with effect from the dates, the persons lower in merit had been appointed. However, the petitioners would not be entitled to any arrears of pay for the period they did not discharge their duties. In the circumstances of the case, there shall be no order as to costs.
( P.S.Patwalia )
March 24, 2006 ( J.S.Khehar )
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