Punjab-Haryana High Court
Shyam Lal vs State Of Haryana And Others on 8 October, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.12236 of 2013 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.12236 of 2013 (O&M)
Date of Decision: 08.10.2013
Shyam Lal ..... Petitioner
Versus
State of Haryana and others
..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Ajay Shekhawat, Advocate,
for the petitioner.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The grievance of the petitioner is that the Revenue & Disaster Management Department has filled up posts of 'B' Class Tehsildars in excess of posts circulated to be filled up by officials on transfer from other Departments. The service rules governing such appointments are called Haryana Revenue (Group-B) Service Rules 1988 (for short "the Rules") as amended in the year 2000 and as further amended on 13.07.2007 and 04.01.2013. Initially seven posts of 'B' Class Tehsildar were circulated on 09.05.2012 to be filled on the principle of promotion on transfer basis. The circular was issued by the Financial Commissioner & Principal Secretary to Govt. Haryana, Revenue & Disaster Management Department to all Commissioners of the State calling names of eligible ASR/Superintendents working in the office of Deputy Commissioners. The selection was from amongst candidates in the category mentioned in Rule 9(1) (b) (iii) of the Mittal Manju 2013.10.22 13:54 I attest to the accuracy and integrity of this document Chandigarh CWP No.12236 of 2013 (O&M) -2- Rules on recruitment conditions mentioned in Appendix-'B' attached to the Rules. The petitioner was one amongst 21 candidates who appeared for the interview on 14.01.2013 before the Departmental Promotion Committee. Twelve names were recommended for appointment on transfer basis as against the seven posts notified. The respondent-Department accepted 9 persons for appointment vide order dated 14.03.2013. The petitioner is before the Court against his non-appointment. The selected candidates were deputed for revenue training as required by Rule 10(1) read with Appendix-'E' of the 1988 Rules as amended from time to time. The Tehsildar departmental examination as prescribed in the rules are required to be qualified by such of the selected candidates as have not passed the departmental examination already while in service.
The petitioner inter alia especially assails the appointment by transfer of Bal Krishan and Rattan Singh. Both originally from the office of the Commissioner, Hisar Division Hisar. The rules recognized two modes of appointment other than by way of direct recruitment, by promotion and by transfer. The academic qualifications and the experience required is prescribed in Appendix-'B'. Rule 9 inter alia provides 20% of the posts to be filled by transfer from amongst five categories of posts, two of which are of Superintendent and Assistant Superintendent of Commissioners' and Deputy Commissioners' office.
This Court by order dated 27.09.2013 called upon the petitioner to produce a chart comparing inter-se merit between himself, Bal Krishan and Rattan Singh to show how the criteria adopted for the selection has been misapplied in the case of the other two. This was with the view to examine Mittal Manju 2013.10.22 13:54 I attest to the accuracy and integrity of this document Chandigarh CWP No.12236 of 2013 (O&M) -3- if any undue benefit had been granted to Bal Krishan and Rattan Singh. Chart has been placed through CM No.14435 of 2013 at Annexure P-13. The chart shows marks assigned under different heads of the criteria. The grand total of marks awarded to Bal Krishan is 75 ½ and Rattan Singh 66 as against 42 awarded to the petitioner. The chart is based on record received under RTI Act, 2005. By wrong calculation of marks, the petitioner reveals in the chart that Bal Krishan ought to have obtained 58 ½ marks, Rattan Singh 61 and the petitioner 45. On his own showing, the petitioner is far less meritorious than Bal Krishan and Rattan Singh and cannot claim preferential right of appointment by transfer over and above the claim of Bal Krishan and Rattan Singh on merit. The remaining selected candidates have not been brought in dispute at the hearing. Therefore, the case is foreclosed qua them.
Learned counsel for the petitioner relies on the decision of the Supreme Court in Rakhi Ray and others vs. High Court of Delhi and others, (2010) 2 SCC 637 to urge that appointments made beyond number of vacancies advertised is without jurisdiction being violative of Article 14 and 16(1) of the Constitution. The excess appointment by transfer is therefore bad. The principle of limiting appointment to advertised posts can be deviated from only in exceptional and rare circumstances, and in an emergent situation, that too after taking a policy decision based on rational grounds. In Rakhi Ray's case, some judicial officers of Delhi had claimed that vacancies which arose subsequently should also be filled up by appointing them as per directions given by the Supreme Court in Malik Mazhar Sultan (3) case, (2008) 17 SCC 703.
Mittal Manju2013.10.22 13:54 I attest to the accuracy and integrity of this document Chandigarh CWP No.12236 of 2013 (O&M) -4-
On facts, the Supreme Court found that Malik Mazhar Sultan (3) case was decided on 04.01.2007 whereas vacancies were advertised subsequently on 19.05.2007 and since the advertisement itself was not challenged, the challenge could not be sustained as to number of vacancies subsequently.
The proceedings of the meeting of Departmental Promotion Committee held on 14.01.2013 under the Chairmanship of the Additional Chief Secretary & Financial Commissioner to Government Haryana, Revenue & Disaster Management Department have been placed on record as Annexure P-6. The criteria adopted was in tune with the criteria earlier adopted in the year 2009 by giving due weightage to qualifications, experience and interview which was as follows:-
"For Qualification
1. Matric with First Division 5 marks
2. B.A/B.Com/BSc 10 marks
3. B.A/B.Com/BSc with 55% marks and above 15 marks
4. M.A/MSc/MCom 15 marks
5. M.A/MSc/MCom with 55% marks and above 20 marks The said Committee fixed 30 marks for interview, 20 marks for experience and 30 marks for ACRs as per following details:
1. Outstanding ACR 3 marks per year
2. Very good ACR 2 marks per year
3. Good ACR 1 marks per year
4. Total marks for 10 years: 30 marks."
The Committee adjudged the suitability of candidates with regard to personality, general bearing, communication skills and working knowledge of revenue Administration. The Committee after adjudging the suitability decided to select 11 candidates i.e. 8 on the basis of old rules and 3 on the basis of new rules. In the old rules, no qualification, age limit of Mittal Manju 2013.10.22 13:54 I attest to the accuracy and integrity of this document Chandigarh CWP No.12236 of 2013 (O&M) -5- Superintendents of Commissioners' office were included but in the new rules notified on 04.01.2013 the age limit was extended up to 56 years. It is borne out from the record of the DPC proceedings that 8 posts fell vacant before 04.01.2013 and 1 post was to fall vacant on 01.02.2013 and since two 'B' Class Tehsildars namely, Ramesh Chander and Ajit Singh were to retire on reaching the age of superannuation on 28.02.2013 and 31.05.2013 therefore, 11 candidates were recommended for appointment. A provision was made to keep one candidate on the waiting list in anticipation of an official seeking retirement in the future on one ground or the other as had happened previously.
There appears to be sufficient explanation for making appointments in excess of the seven notified on 09.05.2012. As a matter of fact, the circular dated 09.05.2012 (P-1) on the subject of acceptance of 'B' Class Tehsildar informed that 7 posts of Tehsildar are vacant at present to be filled on transfer basis. The time lag between 09.05.2012 and the date the DPC which met on 14.01.2013 appears sufficient to justify making alleged excess promotions on transfer basis by selection to meet the exigencies of administration. If the petitioner has failed to make the grade on merit, he can raise no technical arguments of appointments in excess of advertised vacancies so long as his merit remains inferior to the last candidate selected. Where a selection process involved is based on criteria and award of marks failure to make the selection list on merit will not give by itself a right to challenge non-appointment. It is not the case that the petitioner was not considered at the time of interview. Having failed to get selected, he can have no justiciable complaint.
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I do not find sufficient cause to invoke the extraordinary writ jurisdiction in favour of the petitioner to set aside the selection or to include his name in the list of candidates selected and appointed.
There is thus no merit in this petition which fails and is dismissed.
(RAJIV NARAIN RAINA) JUDGE 08.10.2013 manju Mittal Manju 2013.10.22 13:54 I attest to the accuracy and integrity of this document Chandigarh