Punjab-Haryana High Court
Venus vs State Of Punjab And Another on 5 October, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.20148 of 2012 /1/
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.20148 of 2012
JUDGMENT RESERVED ON. OCTOBER 05,2013
DATE OF DECISION: OCTOBER 25, 2013
Venus .......Petitioner
Versus
State of Punjab and another .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.HC Arora, Advocate for the petitioner.
Ms.Sudeepti Sharma, Deputy Advocate General,
Punjab.
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TEJINDER SINGH DHINDSA, J.
The petitioner had applied for the post of Vocational Mistress (Taxation Practices) in response to an advertisement dated 23.9.2009, Annexure P1, issued by the Punjab School Education Department (Secondary Education). A total of 78 posts of Vocational Masters/Mistresses (Taxation Practices) had been advertised, out of which 39 were to be filled up from the General Category. The petitioner belongs to the General Category and in Malik Sushama Rani 2013.10.28 11:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.20148 of 2012 /2/ pursuance to the selection process and merit position determined, her name figures at Serial No.1 in the waiting list.
2. It has been asserted on behalf of the petitioner that against 39 posts pertaining to the General Category, only 19 candidates have joined and even in pursuance to a public notice dated 24.12.2011, Annexure P-3, calling upon selected candidates to join on the post, 20 posts of Vocational Masters/Mistresses (Taxation Practices) are still vacant. As such, prayer in the petition is for issuance of directions to the respondent-Authorities to issue appointment letter to the petitioner on the post in question w.e.f. 14.1.2012 i.e. the extended last date given for joining to the selected candidates in the merit list along with all consequential benefits.
3. Upon notice of motion having been issued, reply on behalf of respondents 1 and 2 has been filed wherein the broad facts have not been disputed. It has been stated that yet another public notice dated 9.1.2013 had been issued in the leading newspapers to provide one more opportunity to the selected candidates to join on the post. On such basis, the State Government has ostensibly justified its action in not offering appointment to the petitioner who is otherwise, admittedly, at Serial No.1 in the waiting list.
4. During the course of hearing on 27.8.2013, this Court had directed for the filing of an additional affidavit of the Director, Education Department (Secondary Education) Punjab justifying such course of action whereby in spite of repeated opportunities having been given to the selected candidates and who were Malik Sushama Rani 2013.10.28 11:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.20148 of 2012 /3/ issued appointment letters as far back in the year 2011 and who have chosen not to join and, on the other hand, a candidate at Serial No.1 in the waiting list i.e. the petitioner who is willing to join on the post, is being denied consideration for appointment.
5. In compliance of the directions dated 27.8.2013, an additional affidavit dated 20.9.2013 of the Director, Public Instructions (Secondary Education), Punjab has been placed on record. A perusal of such additional affidavit would reveal that the State Government is taking a stand not to operate the waiting list on the basis that vide letter dated 20.3.2013, Annexure R-II, the selection initiated in the light of advertisement dated 23.9.2009 has been referred to the Department of Vigilance, Punjab for enquiry. Further more, it has been stated that even the public notice dated 9.1.2013 vide which an opportunity was provided to the selected candidates for joining on the post in question had since been withdrawn vide Government order dated 19.9.2013 at Annexure R-IV. Accordingly, it has been contended on behalf of the State that mere placement of the name of the petitioner at Serial No.1 in the waiting list would not vest in her any right of appointment, and more so, on account of the fact that no candidate having an inferior merit position had been allowed to join.
6. Learned counsel for the parties have been heard at length and the pleadings on record have been perused.
7. The Hon'ble Supreme Court in the land-mark judgment of Shankarsan Dash v. Union of India, 1991(2) SLR 779 had crystalized the proposition that if a number of vacancies are Malik Sushama Rani 2013.10.28 11:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.20148 of 2012 /4/ notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire an indefeasible right to be appointed. A notice/advertisement was held to be merely an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. The State was under no legal duty to fill up all or any of the vacancies. Having so held, the Hon'ble Supreme Court further observed that the decision not to fill up the vacancies has to be taken bonafide for valid reasons and the State would not have the licence of acting in an arbitrary manner in choosing not to fill up the vacancies from amongst the selected candidates.
8. In the light of such categoric enunciation, the short question that arises for consideration is as to whether the action of the respondent-Authorities in the light of the peculiar facts of the present case in denying appointment to the petitioner to the post in question is just, fair and reasonable?
9. Facts are not in dispute. Insofar as 39 posts of Vocational Masters/Mistresses (Taxation Practices) to be filled up from the General Category are concerned, 20 have remained vacant. This is for the reason that inspite of candidates having been selected and having been offered appointment, they have chosen not to join. It is not the case set up on behalf of the respondent-Authorities that a conscious decision has been taken on account of administrative exigencies not to fill up the vacancies. To the contrary, the endeavour of the State Government has been to fill up the vacancies. This would be apparent from the fact that a public notice dated 24.12.2011 had Malik Sushama Rani 2013.10.28 11:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.20148 of 2012 /5/ been issued calling upon the selected candidates to join on the post in question. Such action was re-iterated by the issuance of yet another public notice on 9.1.2013. In this regard, it would be pertinent to take notice of the statement made by Ms.Sudeepti Sharma, Deputy Advocate General, Punjab, upon instructions from Shri Shashi Gagg, Legal Assistant, office of DPI (Secondary Education), Punjab, Chandigarh during the course of hearing on 20.9.2013, wherein this Court was apprised that all the unfilled posts of Vocational Mistresses (Taxation Practices) that were initially advertised on 23.9.2009 would now be filled up by resorting to a fresh process of recruitment. Clearly, the State is wanting to fill up the posts that were advertised in the initial advertisement dated 23.9.2009 in response to which the petitioner had applied. It is by now well settled that once a post duly advertised has not been consumed, then the candidate next in order of merit as determined in a regular process of selection, if available, has to be invited for filling up such vacancy.
10. The justification sought to be furnished by the State for not operating the waiting list in terms of having referred the entire selection process to the Vigilance Department is utterly frivolous. As per Annexure R-III dated 9.8.2013, it has been stated that certain candidates who had applied in response to the initial advertisement dated 23.9.2009 had represented that some candidates lower in merit had been duly selected. Even if that be so, there would be no embargo in the matter being enquired into by the Vigilance Department and based upon any findings returned, the necessary corrective/remedial measures would be Malik Sushama Rani 2013.10.28 11:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.20148 of 2012 /6/ taken strictly in accordance with law. As of date, the selection process has not been scrapped. Rather, candidates have been appointed and are working. Even if the candidate at Serial No.1 in the waiting list i.e. the petitioner was to be appointed, the consequences of an enquiry entrusted to the Vigilance Department would apply equally to her along with the other selected and appointed candidates. Merely referring the matter to the Vigilance Department for enquiry cannot be construed as a justifiable basis for denying consideration for appointment to the petitioner on the post in question strictly in terms of her merit position.
11. Even otherwise, this Court is of the considered view that the petitioner has been discriminated against. The positive and categoric averments made in the petition that one Shri Roshan Lal whose name appeared in the waiting list at Serial No.1 in the category of Backward Class candidates has been issued appointment letter on 8.11.2011 and in pursuance to which he joined duties on 15.11.2011 at Government Senior Secondary School Wariyam Khera, Tehsil Abohar, have not met with any rebuttal in the written statement. Apparently, the waiting list pertaining to the category of Backward Class candidates for the post in question has been operated upon. On the ground of parity, the petitioner being at Serial No.1 in the waiting list against the General Category, and coupled with the fact that the selected candidates having chosen not to join in spite of repeated opportunities having been granted, she would be vested with the right to be appointed as Vocational Mistress (Taxation Practices). Malik Sushama Rani 2013.10.28 11:34 I attest to the accuracy and integrity of this document
CIVIL WRIT PETITION NO.20148 of 2012 /7/ The action of the State Government is held to be arbitrary and violative of Article 14 of the Constitution of India.
12. For the reasons recorded above, the writ petition is allowed. The respondents are directed to issue appointment letter to the petitioner as Vocational Mistress (Taxation Practices) forthwith. Such appointment shall relate back to 14.1.2012 i.e. the extended last date for joining given to the selected candidates as per merit list. The petitioner shall be entitled to the consequential benefits of continuity in service, seniority etc., but shall not be granted any arrears of salary for the period in question i.e. from 14.1.2012 till her actual date of joining.
13. Petition allowed in the aforesaid terms.
( TEJINDER SINGH DHINDSA )
OCTOBER 25, 2013 JUDGE
SRM
Note: Whether referred to the Reporter? (Yes/No)
Malik Sushama Rani
2013.10.28 11:34
I attest to the accuracy and
integrity of this document