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SONIA SABHARWAL versus STATE OF HARYANA & ORS

High Court of Punjab and Haryana, Chandigarh

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Sonia Sabharwal v. State of Haryana & Ors - CWP-6215-2004 [2006] RD-P&H 2148 (30 March 2006)

In the High Court of Punjab and Haryana at Chandigarh

C.W.P. No. 6215 of 2004

Date of Decision: 21.4.2006

Sonia Sabharwal

...Petitioner

Versus

State of Haryana and others

...Respondents

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE M.M.S. BEDI

PRESENT: Mr. N.D. Achint, Advocate,

for the petitioner.

Mr. Harish Rathee, Sr. DAG, Haryana,

for respondent No. 1.

Mr. H.N. Mehtani, Advocate, and

Mr. G.C. Shahpuri, Advocate,

for respondent No. 2.

Mr. Anil Malhotra, Advocate,

for respondent No. 3.

JUDGMENT

M.M. KUMAR, J. (Oral)

This petition filed under Article 226 of the Constitution prays for issuance of direction to the respondents to comply with Rule 8 Part-D of the Haryana Civil Services (Judicial Branch) Rules, 1951 (for brevity, `the Rules') with a further direction to respondent No. 1 State of Haryana to forward the name of the petitioner to respondent No. 3 the High Court for inclusion of her name in the roll of register maintained under the Rules.

A further direction has been sought to respondent No. 3 the High Court to recommend the name of the petitioner to respondent No. 1 for appointment to the Haryana Civil Service (Judicial Branch) Service as the name of the petitioner falls within 5 additional names considered for filling up unforeseen vacancies which have arisen within a period of one year C.W.P. No. 6215 of 2004

from the date of selection of the candidates as a result of the competitive examination.

Brief facts of the case are that the respondent-State issued an advertisement in February, 2000 for filling up 12 posts of Haryana Civil Service (Judicial Branch). Out of 12 posts, 6 posts were reserved for General Category and the remaining 6 posts were reserved for candidates belonging to Scheduled Castes and Backward Classes. In the present case, the issue concerns the General Category as the petitioner had applied for a post in respect of General Category. On 18.8.2000, the result was declared and the petitioner had secured 55% marks in aggregate (P-1). On 30.8.2000, the respondent-State issued Gazette Notification and the name of the petitioner was placed in order of merit at Sr. No. 11 (P-2). However, the petitioner was not considered for appointment and on 19.10.2000 she made a representation to the respondent-State (P-3). On 6.10.2003, the petitioner sent a reminder/representation under Registered Post. She thereafter filed Civil Writ Petition No. 20333 of 2003, which was disposed of on 20.12.2003 by a Division Bench of this Court directing the respondents to consider her representation and pass a speaking order within three months. Her claim was rejected on 17.3.2004 (P-5). On 5.4.2004, the petitioner again represented that there existed more than 8 unforeseen vacancies, which were rendered vacant within a period of one year from the date of selection as a result of the examination held in May, 2000 and she claimed that her representation has been illegally rejected on 17.3.2004 (P-5) by a non-speaking order. However, she filed the instant writ petition claiming that the unforeseen vacancies arising between the period commencing from 15.11.2000 to 15.11.2001 are required to be filled up by offering one of the vacancies to her as her name had appeared at Sr. No. 11 in order of merit. It has been claimed that in the case of Kuldeep Singh v. State of Haryana & others, 2003(1) RSJ 419, three candidates have been granted the relief in respect of unforeseen vacancies as contemplated by Rule 8 of the Rules in addition to six vacancies which were filled up on the basis of order of merit as recommended by respondent No. 2 Haryana Public Service Commission.

C.W.P. No. 6215 of 2004

Respondent Nos. 1 and 3 (Punjab and Haryana High Court) have filed separate written statements but have taken a common stand that all the unforeseen vacancies as contemplated by Rule 8 have arisen between 12.9.2000 to 11.9.2001 and no vacancy had arisen thereafter. The aforementioned stand is evident from the perusal of para Nos. 1 and 2 of the preliminary objections and para Nos. 10, 11, 15 and 18 of the reply on merits of the written statement filed by respondent No. 1. In sum and substance the stand taken by the respondent Nos. 1 and 3 is that the result was declared by the Public Service Commission on 4.8.2000, which was notified in the official gazette on 30.8.2000. However, the same was published in the Haryana Government Gazette Extra Ordinary on 12.9.2000 (P-2). In these circumstances it has been claimed that the relevant date for the purposes of working out unforeseen vacancies, which may occur within one year from the date of selection of candidate(s) as a result of an examination would be 12.9.2000. Any unforeseen vacancy arising on or before 11.9.2001 was required to be filled up by appointing the candidates who are available in order of merit as determined by the Public Service Commission after conducting the examination. Three vacancies, which have occurred prior to 12.9.2001 were offered to the candidates whose names had appeared at Sr. No. 7, 8 and 9 in accordance with the view taken by a Division Bench of this Court in the case of Kuldeep Singh (supra).

Having heard the learned counsel at a considerable length, we are of the view that this petition is devoid of any merit and the same is, thus, liable to be dismissed.

It would first be appropriate to make a reference to Rule 8 Part-D of the Rules, which reads as under:- "Rule 8. The number of names borne on the High Court Register shall not be more than the vacancies advertised by the Haryana Public Service Commission plus five additional names, for the filling up of unforeseen vacancies that may occur within one year from the date of selection of candidates as a result of an examination."

C.W.P. No. 6215 of 2004

A perusal of the Rule 8 shows that after the result is declared and the selection has been finalised, the number of names to be kept on the High Court Register is not required to be more than the vacancies advertised by the Public Service Commission. It is further provided that five additional names, keeping in view the reservation policy for filling up unforeseen vacancies which may occur within one year from the date of selection of the candidate(s) as a result of an examination have to be forwarded to the High Court. According to the view we propose to take, the correct interpretation of Rule 8 of the Rules in respect of unforeseen vacancies is that such vacancies can be filled up within one year from the date of selection of candidate(s) as a result of the examination because it is admitted position by both the parties that only three unforeseen vacancies had arisen up to 12.9.2001. The other unforeseen vacancies have occurred only after 12.9.2001 when the period of one year from the date of publication of the result in the official gazette has expired. Therefore, we do not find that the petitioner, on the basis of Rule 8 of the Rules, could stake her claim to the unforeseen vacancy which had arisen after the expiry of period of one year. For the aforementioned conclusion we draw support from the Division Bench judgment in Kuldeep Singh's case (supra) which has categorically observed in para 18 and 19 as under:- " 18. For determining the date, when the period of one year commences, discretion in the authorities should be minimised and the date normally should co-relate to appointment which can be knowingly effective and publicly relevant when a document is notified and gazetted in the official gazette, which shall be deemed to have been brought to the notice of all concerned and declaration of the result in the official gazette binds the government and the concerned authority to the correctness thereof. The Public Service Commission has no jurisdiction to declare the result. It only forwards the name of the candidates who have cleared the written test by securing minimum marks and have been subjected to viva-voce in accordance with the procedure.

C.W.P. No. 6215 of 2004

19. We may at this stage usefully refer to the recent judgment of the Hon'ble Apex Court in the case of Union of India vs. Ganga Dass, 2000(9) S.C.C. 461, wherein it was held that publication in the official gazette was sufficient proof and no further action would be required thereof even while issuing exemption notification under Section 25. Their Lordships held that it is established practice that publication in the official gazette i.e. the gazette of India is a ordinary method of bringing a rule or subordinate legislation to the notice of the person concerned. The role of any of the authorities after publication of the result is quite limited one, leaving the exceptions apart. After publication of the result, selection (??) the main phase of process of selection is completed and the matter in relation to appointment of the candidates commenced."

Similar observations have been made in para 28 to conclude that the date of publication of notification in the official gazette would be the basis for counting the period of one year. It is admitted position that the candidates were shown to have been selected by publication of their result in the official gazette on 12.9.2000. It follows that a period of one year would come to an end on 11.9.2001. Admittedly, three unforeseen vacancies, which have arisen till that period, have been filled up and the other two unforeseen vacancies have arisen on 15.10.2001 and 31.10.2001 which are beyond the period of one year.

The argument raised by the learned counsel for the petitioner is that the Division Bench of this Court in Kuldeep Singh's case (supra) has held that period of one year is required to be counted from 16.11.2000.

He has drawn out attention to last two lines of para 26 of the judgment in Kuldeep Singh's case (supra).

The argument raised by the learned counsel is apparently devoid of any substance because firstly the question of cut off date of one year was not before the Division Bench as the unforeseen vacancies had arisen before 11.9.2001. Moreover, the Division Bench has consciously referred to the judgment of the Supreme Court in the case of Union of C.W.P. No. 6215 of 2004

India v. Ganga Dass, (2000) 9 SCC 461, in support of the view that the date of publication of the result in the official gazette in respect of the selection of the petitioner would be the cut off date. No significance could be attached to the date of forwarding the names by respondent No. 1 the State of Haryana to respondent No. 3 the High Court. Moreover, on the true construction of Rule 8 of the Rules, 5 posts would include the reserve vacancies which cannot be ignored as per the mandate of the Rule. If it is presumed that the petitioner was at Serial No. 11, she could stake claim only to such a vacancy. Moreover as per Rule 8 of the Rules there has to be reserve vacancy out of the five. Even on that count the claim of the petitioner would be liable to be rejected. The argument raised for extending the cut off date on the basis of the date of forwarding the names by the State of Haryana to the High Court cannot be accepted as the basis for calculating the period of one year in any case.

For the reasons stated above, this petition fails and the same is dismissed.

(M.M. KUMAR)

JUDGE

(M.M.S. BEDI)

April 21, 2006 JUDGE

Pkapoor/okg


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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