Punjab-Haryana High Court
Shavita Vijweshwar And Others vs State Of Punjab And Another on 6 May, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No.25418 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 06.05.2013
CWP No.25418 of 2012
Shavita Vijweshwar and others .....PETITIONERS
VERSUS
State of Punjab and another .....RESPONDENTS
CWP No. 25579 of 2012
Jyoti Jindal .....PETITIONER
VERSUS
State of Punjab and another .....RESPONDENTS
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
PRESENT:Mr.R.K.Chopra, Sr. Advocate,
with Mr. Pawan Kumar, Advocate,
for the petitioners.
Ms. Monica Chhibbar Sharma, Deputy Advocate General,
Punjab, for the respondents.
AUGUSTINE GEORGE MASIH, J. (ORAL)
By this order, I propose to dispose of two writ petitions i.e. CWP No. 25418 of 2012 titled as Shavita Vijweshwar and others vs. State of Punjab and another and CWP No. 25579 of 2012 titled as Jyoti Jindal vs. State of Punjab and another, as common questions of law and facts are involved in these writ petitions. For convenience, facts are being taken from CWP No. 25418 of 2012. CWP No.25418 of 2012 2
Petitioners have approached this Court praying for quashing of the impugned show cause notice dated 25.10.2012 (Annexure P-5) as also the memo dated 13.12.2012 (Annexure P-7), vide which a decision was taken to terminate the services of the petitioners.
Briefly the facts are that the respondents, vide Advertisement dated 23.09.2009 (Annexure P-1), sought applications from candidates for appointment to the post of Hindi Master/Mistress. 713 posts were advertised, out of which 376 posts fell to the share of the general category. Petitioners applied for appointment under the general category. First counseling was held in which the posts, which were advertised for the various categories, were not filled up.
Faced with this situation, respondents issued a public notice regarding counseling/production of original certificates and verification of documents dated 28.06.2011 (Annexure P-2) in various newspapers. In this public notice, 07.07.2011 was fixed as the date for counseling of the candidates of Punjabi Master and Hindi Master/Mistress. It was not mentioned in the said public notice as to what would be the cut off percentage of marks for the candidates to participate in the counseling. It called all candidates, who were eligible to participate in the counseling. However, it was mentioned that the selection would be done on the basis of the merit of the candidates who appear on the date and time of the counseling. Petitioners participated in the counseling held by the respondents. CWP No.25418 of 2012 3 They were shown as selected and accordingly, the appointment letters were issued to the petitioners on 09.11.2011 (Annexure P-4). In pursuance to the said appointment letters, petitioners joined service as Hindi Masters/Mistresses.
Thereafter, a show cause notice dated 25.10.2012 (Annexure P-5) was issued to the petitioners along with four other candidates, who had been selected. In the said show cause notice, it was mentioned that due to a computer error, while determining the position of the last candidate, the cut off was mentioned as 62.1667 instead of 62.3667 in the selection result. Because of this, these seven candidates have been selected. In this show cause notice, it was not mentioned that any candidate, who had though participated in the counseling but had not been appointed, leading to his ouster or non-selection. Petitioners sought information under the Right to Information Ac from the respondents to file reply to the show cause notice. In pursuance to the letter submitted by the petitioners dated 01.11.2012 (Annexure P-6) seeking information from the respondents, a reply was given to the petitioners giving information to the extent that 351 candidates have been selected and appointed in the general category out of 376 posts advertised. In this very reply, it was mentioned that the petitioners have not filed the reply to the show cause notice and, therefore, ex-parte decision will be taken on the basis of merits and demerits. This letter is dated 13.12.2012 (Annexure P-7), which has been challenged by the petitioners in the present writ petition.
Notice of motion was issued by this Court on 20.12.2012 CWP No.25418 of 2012 4 and interim order was passed in favour of the petitioners by observing that the services of the petitioners shall not be dispensed with.
Reply to the writ petition has been filed by the respondents, wherein it has been stated in para-2 of the preliminary submissions as follows:-
" That in this regard it is submitted that the
Department had given an Advertisement dated
23.09.2009 in the Daily Newspaper for eligible candidates for various posts in different subjects including for the posts of Hindi Master/Mistresses in the Education Department. The petitioners applied for the posts of Hindi Master/Mistresses in general category. They were registered with registration No. 20063666, 20074273 and 20057635 with the department for said posts and their merit calculated by the Department was 62.2999, 62.2862 and 62.2742 respectively. The department made first counseling for the selection of Hindi Master/Mistress as per the merit of the candidates, since the merit of the petitioners was less than the merit of last candidate selected in first counseling, therefore they were not selected in the first counseling. After the first counseling, some posts of Hindi Master/Mistresses remained vacant. In order to fill these posts, the department held second counseling from dated 06.07.2011 to 11.07.2011 and counseling for Hindi posts was held on 07.07.2011. The CWP No.25418 of 2012 5 department issued second provisional merit list of candidates for posts of Hindi Masters/Mistresses along with names of the petitioners whereas the merit of last candidate was shown as 62.1667. The petitioners were issued appointment orders dated 04.11.2011 accordingly as per their merit in the selection. It is pertinent to mention here that the merit of the last candidate selected in the second counseling was shown as 62.1667 that was wrong due to clerical mistake/printing mistake, However it was 62.3667. However, the petitioners were selected even being in lower merit and due to this mistake. Since the merit of the petitioners was less than the merit of the last candidate (62.3667) they were otherwise not entitled for appointment of Hindi Master/Mistresses. After coming into the knowledge, the Chairman of the Selection Committee, recommended vide letter dated 23.08.2012 for the removal of the seven selected candidates, who were selected due to clerical mistake/computer mistake otherwise they were lower in merit than the last candidate merit i.e. 62.3667. As per the recommendation of the Chairman, Selection Committee, the department issued show cause notice vide order No. 20/272-2012 Establishment-2(6) Dated 25.10.2012 to the concerned all the seven candidates, including the petitioners of this petition, why their services not be terminated since their merit is less than the merit of the last candidate 62.3667. CWP No.25418 of 2012 6 The petitioners did not reply to said show cause notice properly rather raised queries, vide letter dated 01-11-12. The Department replied the said letter vide letter dated 13-12-12 by answering the questions in letter (P-7) and stated that the Department has given appointment only to two candidates with merit No. 62.68 and 62.5 and there are about 90 candidates between the merit of the petitioners and merit of the last candidate selected (62.3667). Since the merit of the petitioners was less than the merit of the last candidate merit 62.3667 and they were selected by ignoring the other eligible candidates having more merit than the petitioners therefore they cannot be allowed to continue their services with the Department and also the candidates having more merit will lose their right to appointment. After getting no proper representation from the petitioners, the department finally considered the cases of the petitioners on merit and found that the petitioners have lower merit than the last candidate merit and therefore passed order dated 20.12.2012 on the basis of record with effect to terminate the services of the petitioners immediately in each respective case (Copy Annexed as Annexure R-1, R-2 and R-3), which are fully justified in the eyes of law."
A perusal of the above would show that it has been asserted that there are about 90 candidates between the merit of the CWP No.25418 of 2012 7 petitioners and the merit of the last candidate selected i.e. 62.3667. Since the merit of the petitioners is less than that of the other candidates and the appointment to the petitioners has been given ignoring the merit of other eligible candidates who are more meritorious, then the petitioners cannot be allowed to continue in service.
In the reply, which has been filed by the respondents, it has not been stated that any of the 90 candidates, who are stated to be higher in merit than the petitioners, had participated in the second counseling, which was held on 07.07.2011 for the Hindi Master/Mistresses. Rather, at the time of hearing, counsel for the State, on instructions from Mr. Shashi Garg, Legal Assistant o/o Director of Public Instructions (Secondary Education), Punjab, Chandigarh, states that none of these 90 candidates participated in the second counseling. Reference can also be made to para 3 of the additional affidavit dated 02.05.2013 filed by the Director Public Instructions (Secondary Education), Punjab, where it has been stated that the 93 candidates did not participate in the counseling and, therefore, their actual merit could not be ascertained as these candidates were not eligible for the scrutiny of their documents on the basis of their provisional merits being lower than the cut off provisional merit prescribed for the purpose of scrutiny. The fact thus, remains that the candidates did not participate in the second counseling. The only conclusion, therefore, can be drawn is that these candidates despite public notice either were not interested in taking up the appointment to the post of Hindi Master/Mistress or did CWP No.25418 of 2012 8 not have the requisite documents to substantiate the particulars, as have been filled up by them in the applications, which were submitted by them in pursuance to the advertisement dated 23.09.2009 (Annexure P-1).
Keeping in view the above factual position, it cannot be said that the appointment of the petitioners was not in consonance with the process of selection especially when the public notice dated 28.06.2011 (Annexure P-2) does not specify any cut off percentage of marks for appearing in the counseling. The relevant portion of the public notice reads as follows:-
" Recruitment, on contract basis, against the posts of Lecturers, Masters, Vocational Masters, Art & Craft teachers and non teaching staff against the posts, out of 7654 posts, which remained unfilled.
Public Notice regarding Counselling/Original Certificates/Verifications of documents.
Place: Govt. Sr.Sec. School, Date & Time: As shown Phase-3B-1, S.A.S. Nagar in the schedule below (Mohali) Admission: Only to concerned candidates As per the notification published in different news-papers on 23.09.2009 and 06.12.2009, read with subsequent recruitment notification, amendment, recruitment rules and conditions, for recruitment to the following posts, out CWP No.25418 of 2012 9 of 7654 posts, which remained unfilled, eligible candidates are invited, on the basis of merit, to appear on the date, time and place as per details given below:-
Sr. No. Subject/Post Date of Day Time
Counselling
1 Lecturer of Art 06.07.2011 Monday 10.00 to 5.00
& Crafts
teacher.
2 Punjabi Master 07.07.2011 Tuesday 10.00 to 5.00
& Hindi
3 to 6 xxx xxx xxx xxx
What is thus apparent from this public notice was that it was an open invitation to all eligible candidates to participate in the counseling. Each and every candidate was, therefore, entitled to participate in the counseling and petitioners, in pursuance thereto, did join the counseling where their candidature was duly considered. Since the candidates, who came present to participate in the counseling, were to be assessed according to their merit, subject to the availability of the posts, candidature of the petitioners was rightly considered. Having been found to have participated in the counseling and obtained the requisite merit against the post, which was available to be filled in the Hindi Master/Mistress category, they have rightly been issued the appointment letters. The candidates, who may be higher in merit than the petitioners in the provisional merit list, which was prepared by the respondents, if they do not participate in the counseling, would not be entitled for consideration CWP No.25418 of 2012 10 for appointment in pursuance to that counseling process.
In the light of admission on the part of the respondents that 93 candidates, who fall between merits of 62.1667 and 62.3667, had not participated in the second counseling held on 07.07.2011 for the Hindi Master/Mistresses and, therefore, they would not be entitled for consideration for appointment to the post, for which counseling was held as per the public notice dated 28.06.2011 (Annexure P-2). The impugned show cause notice and in furtherance thereto, the letter dated 13.12.2012 (Annexure P-7) being without any basis and justification cannot sustain and is hereby quashed.
The writ petitions are allowed.
(AUGUSTINE GEORGE MASIH)
May 06, 2013 JUDGE
pj