Punjab-Haryana High Court
Naresh Kumari vs State Of Punjab And Ors on 10 November, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.21090 of 2013 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.21090 of 2013 (O&M)
Date of Decision: 10.11.2014
Naresh Kumari ..... Petitioner
Versus
State of Punjab and another ... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Kapil Kakkar, Advocate,
for the petitioner.
Mr. A.P.S. Mann, Addl. AG, Punjab.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
This petition arises out of a selection process which called applications from eligible candidates for filling up the vacant posts of Vocational Mistress (Computer Science) in the year 2009. The advertisement was published in newspapers on September 23, 2009 inviting applications to fill up 7654 posts on contractual basis in the teaching and non-teaching cadre in the Department of Education which included 78 posts of Vocational Masters/Mistresses in Computer Science. The petitioner belongs to the reserved category of Scheduled Castes (R&O) and possesses the prescribed qualifications. She applied for the post on line. A tentative merit list was drawn which was put in public domain on December 13, 2009 inviting candidates for scrutiny of their original certificates/documents. The petitioner participated in this process. A category-wise merit list was displayed where her name figured at Sr. No.40 in her reserved category. She MANJU 2014.11.26 15:36 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.21090 of 2013 (O&M) -2- secured 50.1429 marks. For reasons which are not necessary to be gone into a revised combined merit list of male and female candidates was displayed in the last week of February 2011 where her name did not figure though in the earlier one they did. Four candidates in the reserve category of R&O were issued appointment letters allotting them different stations. It transpires that a public notice dated June 29, 2011 was issued for those candidates who could not attend counselling for the various posts advertised informing them that would have another chance to attend counselling a process slated on July 10, 2011 where their documents would be re- checked. She participated in the re-checking exercise.
It is the say of the petitioner that on June 26, 2012 she came to know that appointment letters had been issued to selected candidates and some of whom had joined service but still a large number of vacancies remained unfilled from amongst candidates who were higher in merit than some of those appointed. She sought information under the Right to Information Act, 2005 from the Director, SCERT, Punjab with respect to availability of vacancies. She was informed by letter dated June 26, 2012 that there were 78 posts of Vocational Masters/Mistresses (Computer Science) and out of those 8 were for SC (Mazhbi and Balmiki) and 8 earmarked for SC (R&O). The PIO informed that he could offer no further help in the matter of furnishing information of the result of the selection from his office since the list had been forwarded to the DPI (Secondary Education) Punjab such piece of information could be sought from that office. On information received on August 24, 2012 from the office of DPI (SE) on her application she came to know that out of 8 posts 5 had been MANJU 2014.11.26 15:36 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.21090 of 2013 (O&M) -3- filled while 3 remained vacant.
Aggrieved by the inaction of the respondents in offering an appointment to her as per her merit she made a representation on the day following the receipt of information i.e. on August 25, 2012 praying that she be issued an appointment order. Having met with no success, the petitioner approached this Court by filing CWP No.17696 of 2012 which came up for hearing and was disposed of on the same day with a direction to the respondents to consider her claim as per her merit and take a final decision on her representation by passing a speaking order within three months. The respondents kept the matter lingering till September 09, 2013 when the competent authority passed the impugned order rejecting her claim on the ground that no candidate with lower merit than the petitioner had been appointed though it was admitted that three posts are still lying vacant in the category of the petitioner from the old selection process. Against the impugned order, the petitioner has approached this Court praying for a writ of certiorari for quashing the order dated September 09, 2013 and for issuance of a writ of mandamus to the respondents directing them to appoint the petitioner against one of the three vacant posts.
Learned counsel for the petitioner relies in her petition on the Division Bench decision of this Court in State of Haryana vs. Gajraj Singh; 2011 (4) SCT 207 and Single Bench judgment inVinay Singh vs. State of Haryana, 1993 (2) RSJ 616 to contend that once a post has been offered to a candidate and is not accepted and a meritorious candidate in the merit list is available, the vacancy has to be filled in by inviting the next person in the order of merit.
MANJU2014.11.26 15:36 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.21090 of 2013 (O&M) -4-
The respondent-State has contested the case by filing reply by way of counter affidavit of the Assistant Director (Secondary Education), Punjab on behalf of the Director Public Instructions (Secondary Education), Punjab. It is pleaded that the last candidate selected and appointed in the category of Scheduled Caste (Ramdasia and Others) is at 50.2632 merit points. However, the merit of the petitioner as per the criteria has been calculated at 50.1429 by the Departmental Selection Committee (Teaching) which obviously is lower than the next above. Therefore, the name of the petitioner did not exist in the selection zone on account of the fact of her being lower in merit than the last selected candidate in her category. The impugned order is defended as being a reasoned order and based on the record of the selection. The impugned order is neither illegal nor arbitrary nor unjust nor unfair and deserves to be sustained as legal and valid.
I have heard the learned counsel for the parties in support of their respective cases.
The Division Bench of this Court in intra court appeal in Gajraj Singh's case (supra) have expressed the following view:-
"It is well settled that once a post has not been consumed and a meritorious candidate in the merit list is available then the vacancy could be filled in by inviting next person in merit. The direction issued by the learned Single Judge are consistent with the principles of equality laid down in Articles 14 and 16(1) of the Constitution. The post of Lecturer in Hindi has to be offered to the most meritorious candidate who may be next in the merit after Vinod Kumar under the exserviceman category. Therefore, no exception is provided to interfere in the view taken by the learned Single Judge. The appeal is wholly without merit and does not warrant admission. Accordingly, the appeal fails and the same is dismissed."MANJU 2014.11.26 15:36 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.21090 of 2013 (O&M) -5-
Per contra, Mr. A.P.S. Mann, Addl. AG, Punjab relies on a decision of the Supreme Court in Raj Rishi Mehra and others vs. State of Punjab and another, AIR 2013 SC 3580 to contend that once appointments are made against the advertised posts the select list stands exhausted and those who are placed below the last person appointed cannot claim appointment as a matter of right against a post which subsequently becomes available. The Supreme Court relied on its earlier decision in Mukul Saikia vs. State of Assam, (2009) 1 SCC 386 where the principle had been laid down as above. In Rakhi Ray vs. High Court of Delhi, (2010) 2 SCC 637 again, the Supreme Court went into the question and by referring to a number of judicial precedents observed :-
"It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law."
In State of Punjab vs. Raghbir Chand Sharma, (2002) 1 SCC 113 a two Judge Bench of the Supreme Court considered the question as to MANJU when the recruitment process can be said to have come to an end and 2014.11.26 15:36 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.21090 of 2013 (O&M) -6- whether the select list can be operated qua the posts/vacancies which become available due to resignation of the existing incumbent and answered the same in the negative by making the following observations:
"With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently. The circular order dated 22-3-1957, in our view, relates to select panels prepared by the Public Service Commission and not a panel of the nature under consideration. That apart, even as per the circular orders as also the decision relied upon for the first respondent, no claim can be asserted and countenanced for appointment after the expiry of six months. We find no rhyme or reason for such a claim to be enforced before courts, leave alone there being any legally protected right in the first respondent to get appointed to any vacancy arising subsequently, when somebody else was appointed by the process of promotion taking into account his experience and needs as well as administrative exigencies."
The reliance placed on these judgments by Mr. Mann are inappropriate in deciding the issue raised in this case where the recruitment process has not come to an end inasmuch as three vacancies in the SC (R&O) category remain unfilled and for the wrong reason are being stonewalled. If they remain unfilled then the matter has to be examined in the light of the principles laid down by the Supreme Court in Asha Kaul (Mrs.) & Another vs. State of Jammu & Kashmir, (1993) 2 SCC 573 where it opined that Courts must look into the reasons why posts have remained unfilled as were duly advertised and select list drawn of the successful MANJU candidates. If the reasons for non-filling a vacant post in a direct recruitment 2014.11.26 15:36 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.21090 of 2013 (O&M) -7- process are found justified then the Court may refuse to interfere in the matter. It is not far to see cases where Courts may deny relief. For instance, after the selection process a cadre review has taken place and some posts are abolished and are found not necessary to be manned for carrying out the administration of the Department which can easily go on in the numerical strength of those already appointed as per merit. There can be reasons of financial stringency or austerity measures adopted as are consistent with the efficiency of administration and which burden the State treasury may not support in footing salary bills etc. for the posts held back for future reference or revision. It also can be where a glaring mistake has been committed while counting existing and anticipated vacancies at the time of initiating the recruitment process which were miscalculated by an oversight or by an improper feedback on vacancies by the functionaries of the State who were charged with such duty. However, these reasons are evidently not exhaustive and are only supplied by way of illustration for a better understanding of the several dimensions of the case might have and if a direction were issued to the respondents as claimed by the petitioner then what may be the consequences and the fallout. None of these serious roadblocks are present in this case since the only defence against non-filling of vacant posts is that no person lower in merit has been appointed. This ground is not found sufficient or plausible reason not to fill up the advertised posts undisputedly calculated after proper counting of existing vacancies or anticipated vacancies likely to arise during but before the selection process becomes a dead ball.
This leaves the Court to examine the reason given in the MANJU 2014.11.26 15:36 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.21090 of 2013 (O&M) -8- impugned order and whether that is sufficient to sustain it. Indisputably, the three vacant posts were advertised in 2009. A selection process was initiated. The merit was prepared as per criteria in which the last selected candidate in R&O category secured 50.2632 while the petitioner was close at heel with 50.1429 merit points. It is not that her name never figured in the select list except in the last one which is the impugned part of the selection process. The impugned order admits candidly that the three posts remain vacant on account of non-joining of certain candidates. If that is so, then the reason ascribed to deny the claim is neither germane nor relevant to the issue of keeping back three posts and still lying unfilled only to re-advertise them in a subsequent recruitment process by applying the principle of carry forward of vacancies. But the carry forward principle is not applicable in the presence of suitable, available and qualified candidates claiming reserve roster points meant for SC (R&O) as per their merit achieved in direct recruitment. Relief has been denied only for the reason that no candidate with lower merit than the petitioner has been appointed. This may be a good argument in case all the advertised posts were filled, then the petitioner would have had no right to appointment. It appears that the Director Public Instructions (Secondary Education), Punjab, Ajitgarh has picked on a flimsy reason to deny appointment while searching for reasons or a legal principle to reject the claim. It is not the case of the respondent State that the petitioner does not make the grade on merit on the prescribed criteria. It is not pleaded that she has failed the examination/test/selection process according to the criteria prescribed and therefore has no case. It is also not said in the impugned order that waiting lists are not prepared. When there is MANJU 2014.11.26 15:36 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.21090 of 2013 (O&M) -9- no denial that the petitioner has not made it on merit then the reason that no candidate having less merit than her has been appointed is to beg the question of the petitioner's right to consideration for appointment. It may well be settled legal position that a mere selection does not give a candidate an indefeasible right to appointment but that principle does not hold good in this case where three candidates failed to join the posts offered to them which as a consequence remain vacant. It is equally clear that the State cannot deny appointment to a person duly selected without a justifiable cause. It is an equally well embedded proposition of law that if the reasons contained in an administrative order are found illegal, arbitrary, unreasonable and unconstitutional the order must fall in its entirety and cannot be sustained by supplying reasons just as a superior court of law can do while testing a judicial order of a court below in its appellate power.
Still further, reservation of posts and vacancies in direct recruitment for scheduled castes in public appointments is not an ordinary trifling matter to be lightly brushed aside but suffers reasonable restrictions on State action and constitutional protections afforded and enabled by Article 16 (4) & 16 (4-A) of the Constitution and State policies of Punjab formulated thereunder. In the face of reservation policies issued through executive instructions under Article 162 of the Constitution full effect has to be given to them to make reservation meaningful till the prescribed percentage is achieved and all the reserved posts advertised are filled. It is also not the case of the respondents that the prescribed percentage of reservation would be exceeded if this writ were allowed. Reservation law presupposes relaxations and concessions to a special category or class of MANJU 2014.11.26 15:36 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.21090 of 2013 (O&M) -10- persons for whom the constitutional benefits are admissible. Withholding posts duly advertised in the category of SC (R&O) may amount to a constitutional tort; the tortfeasor being the recalcitrant administrator not letting go the three vacant posts for an apparently perverse reason and keeping them in his desk drawer for future reference just because it is his wish and he has the power to do so or that relief is going out of his precious wallet. This is perverse thinking in the mind of the administrator to deny a just claim only because he holds the pen.
Let us examine the matter from a hypothesis. Supposing the appointing authority had without any litigation appointed the petitioner to one of the three vacant posts on his own, would the Court have nullified the appointment as one which was illegal, if a challenge were laid? I think not. And by whom would the challenge be laid in a court of law? The answer can only be- the person aggrieved. Who would be the aggrieved person? The answer is- a member of SC (R&O) alone chasing a reserved post and not a candidate from any other category. Is there any other candidate who is a member of the SC (R&O) complaining of right deprivation and in sight? The answer is-none whatsoever. Then the crucial question is put, is the petitioner a failed candidate? The competent authority does not say so in his impugned order neither does the State in the written statement filed before this Court. What were the prescribed cut off marks defining success and failure and at what merit point failure starts in order to understand the difference between merit points 50.2632 and 50.1429 in the matter of appointment? No one knows. The State defence is a clean slate on these questions, the answers to which could turn the fate of the case. MANJU 2014.11.26 15:36 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.21090 of 2013 (O&M) -11-
For the foregoing reasons this petition is allowed. The impugned order dated September 09, 2013 is set aside by issuing a writ of certiorari. A mandamus is issued to the respondent-State to consider the claim of the petitioner for appointment as Vocational Mistress (Computer Science) in the category of Scheduled Caste (R&O) against one of the three vacancies lying unfilled without applying the impugned reason that only because persons lower in merit have not been appointed the petitioner has no right of consideration for appointment. The respondents are directed to consider the claim of the petitioner within 30 days on receipt of a certified copy of this order keeping in view the observations made by this Court in this order.
In passing, I wish to record that since the State has a right to appeal against this order I refrain from imposing exemplary costs, which I had almost made up my mind to, on the maker of the impugned order which is so entirely perverse in its reasoning and shortcomings which appear to be aimed only at willy nilly denying a just claim based on law of reservation and quotas, which is a sacrosanct constitutional obligation, but leave it to the appeal court to examine this aspect in case challenge is brought before it. However, I would record a post script and remind the State functionaries to foster mutual respect of the institutions that make for India and to say that it is not enough today for a Government servant to say- Here is the order you got the High Court to tell me to pass, now do what you can with it! Because these words are inaudible or out of earshot does not mean that the Court does not feel the pulse or lip-read the strong under-currents that lie behind such impugned orders. This is a form of subterranean contempt making a mockery of the law as laid down by Courts worse than ex facie MANJU 2014.11.26 15:36 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.21090 of 2013 (O&M) -12- contempt. This brooding culture must end in Government offices. I have no reason to believe it will not. But if it continues, the Court is not ill-equipped to deal sternly with such aberrations including passing of strictures on a bureaucrat who deliberately and knowingly passes a perverse order which is not in accordance with law and is manifestly aimed at wrongfully depriving reserved category persons of their valuable and constitutionally protected rights.
(RAJIV NARAIN RAINA) 10.11.2014 JUDGE manju MANJU 2014.11.26 15:36 I attest to the accuracy and authenticity of this document High Court Chandigarh