Punjab-Haryana High Court
State Of Punjab And Another vs Shavita Vijweshwar And Another on 19 February, 2014
Bench: Jasbir Singh, Harinder Singh Sidhu
In the High Court of Punjab and Haryana, at Chandigarh
1. Letters Patent Appeal No. 1000 of 2013 (O&M)
State of Punjab and Another
... Appellants
Versus
Shavita Vijweshwar and Another
... Respondents
AND
2. Letters Patent Appeal No. 999 of 2013 (O&M) State of Punjab and Another ... Appellants Versus Smt. Jyoti Jindal ... Respondent Date of Decision: 19.2.2014 CORAM: Hon'ble Mr. Justice Jasbir Singh.
Hon'ble Mr. Justice Harinder Singh Sidhu.
Present: Mr. Manoj Bajaj, Additional Advocate General, Punjab, for the appellants.
Mr. R.K.Chopra, Senior Advocate with Ms. Maninder Kaur, Advocate for the respondents (In both the appeals).
Ms. Alka Chatrath, Mr. Ashok Bhardwaj, Mr. Nitin Kant Setia, Advocates for the intervenors.
Jasbir Singh, Judge (Oral) This order will dispose of two appeals viz. Letters Patent Appeal Nos.1000 of 2013 titled as "State of Punjab and Another v. Shavita Vijweshwar and Others" and No. 999 of 2013 titled as "State of Punjab and Another v. Smt. Jyoti Jindal", as the common questions of law and facts are involved therein. To dictate order, facts are being taken Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 2 from Letters Patent Appeal No. 1000 of 2013.
This appeal has been filed against an order dated 6.5.2013 passed in Civil Writ Petition No. 25418 of 2012, filed by the respondents, which was allowed by the learned Single Judge and letter dated 13.12.2012 (Annexure P7) was quashed. Vide that letter, service of respondent No.1-Shavita Vijweshwar was terminated on the ground that about 90 candidates, between her merit and the merit of last selected candidate, were left out of service when it was offered to her. Appellant- State issued a public notice on 23.9.2009 (Annexure P1) inviting applications for recruitment of the Lecturers in the subjects including the posts of Hindi Master/Mistress. In all, 713 posts of Hindi Master/Mistress were advertised. It was provided in the advertisement that posts are earmarked in the ratio of 50:50 between men and women. The respondents being eligible applied in response to above advertisement. It is necessary to mention here that criteria for selection was mentioned in the advertisement. It was stated that there shall be 80 marks on the basis of percentage of marks obtained by each candidate in basic educational and professional qualifications. In addition thereto, 5 marks were earmarked for higher qualification, another 10 marks for another higher qualification and 10 marks were reserved for teaching experience for ten years i.e. 1 mark for each year of experience. The respondents No.1 to 3, stated that as per the criteria mentioned above, they had secured following percentage of marks:-
"1. Respondent No.1 62.2999
2. Respondent No.2. 62.2862 Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 3
3. Respondent No.3 62.2742"
It was their further case that as per the merit list prepared, their names appeared in the selected candidates and thereafter posts were offered to them and they joined against them. It was further stated that after completion of first counseling, to fill up the remaining posts, a public notice was issued on 28.6.2011 and it was an open invitation to all to appear for counseling from 6.7.2011 to 11.7.2011. For the posts of Hindi Masters/Hindi Mistresses counseling was fixed for 7.7.2011. It was case of the respondents that they appeared on the date fixed and in the fresh merit list, their names were shown in the selected candidates. Thereafter, posts were offered to them and they joined against the same. Thereafter, they received Show Cause Notice on 25.10.2012 stating that actually candidates upto the marks 62.3667 were selected but due to some mistake of the computer, letter was issued to them. They were lower in merit having secured less marks than the marks as mentioned above. Reply was filed by the respondents to the said Show Cause Notice. Thereafter, detailed information regarding vacant posts was not supplied despite request which compelled the respondents to approach this Court challenging Show Cause Notice dated 13.12.2012 which was set aside by the learned Single Judge vide the impugned judgment. Hence, this appeal.
Before the learned single Judge, it was categoric stand of the State Government that in the second counseling, candidates having secured marks upto 62.3667 were called for counseling. As the respondents have secured less marks than the cut off marks, they were Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 4 not supposed to appear in counseling. Further due to some mistake, their certificates were checked up and they were shown in the merit list. When mistake was detected, Show Cause Notice was issued.
In the reply filed by the State, in para No. 2 (Preliminary Submission), it was stated as under:-
"2. 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 of 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/Mistresses 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 department issued second provisional merit list of candidates for posts of Hindi Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 5 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 Chairmen 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. The petitioners did not reply to said show cause notice properly rather raised queries. Vide letter dated 01-11-12. The Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 6 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."
It was stated that there are 90 candidates who have secured more marks than the respondents. It was specifically stated that there were about 90 candidates between the merit of the respondents and merit of the last candidate selected (62.3667). It was further stated that as the marks obtained by the respondents were less than the cut off Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 7 marks i.e. 62.3667, they were wrongly selected and thereafter when mistake was detected rightly Show Cause Notice was issued to them.
The learned Single Judge, no doubt, looked into that averment, however, decided in favour of the respondents primarily on the ground that for the second counseling as per public notice, so issued, it was an open invitation to all to appear on the date fixed so that their certificates be got verified. It was further observed that to the public notice, candidates higher in merit to the respondents failed to put in appearance as such they cannot claim their right to the selection afterwards once they have failed to appear for counseling. By noting above fact, it was stated that as the respondents had appeared for counseling they were rightly selected for the posts in question. To strengthen the above said reasoning that for second counseling it was an open invitation reference was made to public notice dated 28.6.2011. Contents of the notice have been reproduced in the judgment. By making reference to the above said public notice, it was stated that against open invitation, once the candidates, higher in merit than the respondents, have failed to appear in counseling, they do not have right to claim appointment for the posts in question. In that regard, it was stated as under:-
"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 Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 8 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 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 translated copy placed on record as Annexure P2 of the public notice was not correct. Important note as mentioned in the Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 9 heading of the public notice directing candidates to see their merit position as per the website mentioned therein is not mentioned. Note given at the end of public notice is also not mentioned.
Under the circumstances, there is nothing on record to show that the candidates were called in the second counseling only upto the marks secured i.e. 62.3668 and not beyond that. Taking note of above said position, this Court in connected appeal viz. Letters Patent Appeal No. 999 of 2013, passed the following order on 21.5.2013:-
"Notice of motion for 5.7.2013.
Process dasti as well.
Meanwhile the appellant-Department is directed to issue a public notice to the candidates higher in merit who have been deprived of appointment. If those candidates give their willingness to join the post, their inter se merit shall be prepared and placed before this Court on the next date of hearing. Those candidates shall also be at liberty to become party to these proceedings. There shall be a show-cause notice to the respondents that if candidates higher in merit express their willingness to accept the appointment, why the termination order passed against them be not given effect.
A photocopy of this order be placed on the file of connected case.
A copy of this order be given dasti to learned State counsel for information and necessary compliance."
The State Government was directed to issue a public notice to Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 10 the candidates higher in merit than the respondents who were deprived of their chances of appointment. It was further stated that if they are willing to join the post inter se merit would be prepared and placed before this Court. Liberty was also granted to those candidates to be a party in the present proceedings. When public notice was not issued as per the directions given, this Court, on 5.7.2013, passed the following order:-
"We have gone through the public notice purportedly issued in compliance to the order dated 21.5.2013 passed by this Court. The said notice is nothing but yet another attempt to circumvent the Court orders and ensure back door entry of less meritorious candidates. We accordingly, direct the respondents to place on record the inter se merit list of the candidates who have expressed their willingness to accept appointment against the posts in question after issuing a fresh public notice in terms of the order dated 21.5.2013. There shall be also a show cause notice to the departmental authorities as to why the matter be not referred to the State Vigilance Bureau for investigation.
List again on 5.8.2013."
Appellant-State was directed to put on record inter se merit list of the candidates who had expressed their willingness to accept the appointment against the post in question. It is also apparent on record that in response to the notice issued, 782 candidates responded, out of those, 66 candidates were found eligible and were found higher in merit Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 11 as compared to the respondents. Upon noting above fact, following order was passed by this Court on 5.8.2013:-
"It is informed by Mr. Puri, learned Additional AG, Punjab that pursuant to the order dated 05.07.2013 a fresh notice has been issued and in response thereto, 82 candidates have responded, out of which 66 candidates are eligible. He further submits, on the basis of instructions received by him, that most of them are higher in merit than the private respondents.
Since numerous candidates higher in merit than the private respondents, who apparently managed their back-door entry, are before us and/or have responded to the public notice, operation of the impugned judgment passed by learned Single Judge is stayed and the Department is directed to relieve the private respondents or any other candidate[s] lower in merit forthwith, irrespective of any order passed in their favour by learned Single Judge or the Contempt Court, and to keep the posts vacant till the exercise to fill up the posts strictly as per merit is completed."
Taking note of merit position of the respondents, the State Government was directed to relieve them from their respective positions.
Before us, it is not in dispute that vide public notice issued on 28.6.2011, to look into the merit list, the candidates were advised to go to the website http://recruitment-cdacmohali.in. Downloaded copy of that Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 12 has been produced before us showing provisional revised merit list and last candidate was Ritu Gandhi having secured 62.3667 marks. If that is so, there was no question of any candidate securing less marks than above said cut off marks, appearing for counseling on the date fixed. This wrong and incorrect supply of information was also noticed by the Contempt Court in COCP No. 1667 of 2012 in order dated 27.5.2013. It was specifically noticed that impugned judgment in this appeal has been passed on account of supplying incorrect information. In the above judgment, it was observed as under:-
"A perusal of the aforesaid would show that the plea taken by the State that the public notice was for all the candidates, is incorrect as list (Annexure P-6 with the contempt petition) of candidates called for interview uploaded on the website was only upto merit rank of 62.3667. Thus, it stands established on record that the officials of the respondent-State has taken two separate defences in the contempt petition and the writ petition. In fact it stands established on record that the respondents have concealed material facts from the notice of the Writ Court in CWP No. 25418 of 2012 and CWP No. 25579 of 2012 obviously to help the seven candidates who were lower in merit but still every effort has been made to save their appointments.
Not only this, in the written statement filed on behalf of the respondents in CWP No. 25418 of 2012 and CWP No. 25579 of 2012, no mention has been made of the various Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 13 orders passed by this Court, especially the order dated 1.4.2013 vide which the contempt Court has already given a finding that 90 more candidates who had secured marks lower than 62.3667 but higher than 62.1667 and were above in merit of seven candidates (who have already been given appointments). Even the Writ Court has been misled by the petitioners of CWP No. 25418 of 2012 by placing on record the incomplete copy of Public Notice Annexure P-2 and the said misleading fact has been further compounded by the official respondents as they have failed to bring to the notice of the Court the complete facts which resulted into the findings of the Court that those 90 persons never participated in the counseling.
Not only this, after being caught on wrong foot, the respondents have tried to hush up the matter by giving appointments to the petitioners to circumvent the real issue i.e. the fate of 90 more such candidates as the petitioners, who are higher in merit than the seven persons appointed by the respondents and who were never called for counseling. Thus, the official respondents are guilty of concealing the material facts from the knowledge of the Writ Court as well as the Contempt Court which has resulted into miscarriage of justice and the same amounts to contempt of this Court. Thus, in view of this Court, the respondents are not only guilty of concealing the true facts from the knowledge of this Court but Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 14 are also guilty of misleading this Court by taking false plea in the writ petition that all the candidates were called for second counseling."
Plea of the respondents and also State authorities that all the candidates were called for counseling on the date fixed was found to be incorrect. Those candidates who had secured marks more than 62.3667 were called for interview.
The learned Single Judge fell in error because correct information was not supplied as referred to above. As per the public notice dated 28.6.2011, candidates were required to look into the provisional merit list as displayed in the website http://recruitment- cdacmohali.in as mentioned therein.
We have seen the downloaded copy of the provisional merit list which shows that the candidates who have secured marks upto 62.3667 were called for second counseling. It is very surprising that despite that, the respondents were selected who have marks less than the last candidate selected. The marks of the respondents were as under:-
"1. Respondent No.1 62.2999
2. Respondent No.2. 62.2862
3. Respondent No.3 62.2742"
When this mistake was detected, Show Cause Notice to terminate their services was rightly issued. As per the orders passed by this Court from time to time on various dates as is reproduced in the preceding paragraphs of this judgment, it now transpires that between Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 15 the last candidate selected and the respondents, 66 more candidates higher in merit are available for appointment. If that is so, appointment given to the respondents cannot be sustained.
In view of above, we allow both the appeals. The judgment passed by the learned Single Judge is set aside. The appellant-State is directed to give appointment to those candidates, who are higher in merit as per the merit list now prepared against the available vacant posts.
If any candidate is not satisfied with the merit list, so prepared, he shall have the liberty to challenge the same.
Before doing the exercise, grievance of the petitioners in writ petition viz. Civil Writ Petition No. 978 of 2014 and the intervenors be also considered and speaking orders be passed qua their claim to the posts. Necessary exercise be done within six weeks from today.
(Jasbir Singh) Judge (Harinder Singh Sidhu) Judge February 19, 2014 "DK"
Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document