Punjab-Haryana High Court
Jagmal vs State Of Haryana And Others on 10 October, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No. 8494 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.M. Nos. 10392, 6673 of 2012 and
CWP No. 8494 of 2010 (O&M)
Date of Decision : October 10, 2012
Jagmal .... PETITIONER
Vs.
State of Haryana and others
..... RESPONDENTS
CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. Rajesh Bansal, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana,
for the respondents.
AUGUSTINE GEORGE MASIH, J.
C.M. No. 10392 of 2012 Allowed as prayed for. Annexures P-18 to P-21 are taken on record.
C.M. No. 6673 of 2012 Allowed as prayed for. Annexures P-15 to P-17 are taken on record.
CWP No. 8494 of 2010 (O&M) 2CWP No. 8494 of 2010
Written statement on behalf of respondents No. 1 to 3 filed in Court, taken on record.
Prayer in this writ petition is for quashing the order dated 11.03.2010 (Annexure P-6) whereby the claim of the petitioner for appointment to the post of Inspector, Food and Supplies, Haryana, stands rejected.
Petitioner, in pursuance to an advertisement issued by the Haryana Staff Selection Commission dated 06.03.2006, applied for the post of Inspector, Food and Supplies under the reserved category of SC-A, for which nine seats were kept. Written examination was held on 23.07.2006, result thereof was declared on 28.08.2006. Petitioner participated in the interview as he was shortlisted and the final result was declared on 01.10.2006. Petitioner was placed in waiting list in the category of SC-A. One Sh. Balbir Singh, who had been selected as an Inspector, Food and Supplies, belonging to the same category as the petitioner, joined on 22.12.2006. Thereafter, he tendered his resignation on 18.04.2007, thus, leaving a seat vacant out of the selection. Petitioner being placed at number one in the waiting list submitted a representation for appointing him on the post, which was now vacant on the acceptance of the resignation of Sh. Balbir Singh.
Various representations were made but with no response. A letter dated 26.02.2008 was received by the petitioner CWP No. 8494 of 2010 (O&M) 3 from the Director, Food and Supplies, Haryana-respondent No. 3 to appear before the Civil Surgeon for medical examination and submit a report so that further action can be taken for appointment of the petitioner. Petitioner was issued the medical fitness certificate on 03.03.2008. Numerous representations were made by the petitioner seeking appointment but all in vain. Thereafter, representation dated 25.05.2009 was submitted by the petitioner which when was not responded to, petitioner filed CWP No. 20191 of 2009, which was disposed by this Court vide order dated 23.12.2009 directing respondents to decide the representation of the petitioner within a period of two months from the date of receipt of certified copy of the order. In pursuance to the said direction, the claim of the petitioner stands rejected by the Director, Food and Supplies, Haryana- respondent No. 3 vide letter dated 11.03.2010 (Annexure P-6).
Counsel for the petitioner contends that the petitioner is entitled to appointment to the post which became vacant on acceptance of the resignation of Sh. Balbir Singh. The claim of the petitioner has been denied relying upon the instructions dated 03.08.2009 issued by the Government of Haryana, which are based upon a judgment passed by the Supreme Court in Mukul Saikia and others vs. State of Assam and others, (2009) 1 Supreme Court Cases 386, according to which, the currency of the select list/waiting list shall be deemed to be expired as soon as the posts advertised are filled. These instructions, counsel for the petitioner contends, CWP No. 8494 of 2010 (O&M) 4 stand withdrawn by the Government of Haryana vide instructions dated 07.05.2010 (Annexure P-9) and, therefore, the rejection of the claim of the petitioner cannot sustain. He has placed reliance upon the instructions earlier issued by the State of Haryana where there is no such impediment from filling up of the vacated seats through candidates from the waiting list. He, on this basis, contends that the claim of the petitioner deserves to be allowed. Reliance has also been placed upon the information supplied to him under the Right to Information Act on 20.11.2007 (Annexure P-4) where one Sh. Kutub Din son of Sh. Abdul Rashid, who was in the waiting list of general category, was appointed against a vacancy of a Junior Engineer caused on account of resignation of Sh. Dinesh Kumar belonging to the general category and for another vacancy meant for ESM (General), which was caused after acceptance of resignation of Sh. Umed Singh ESM (General), the next candidate in merit from the waiting list was held entitled to appointment. On this basis, he contends that the impugned order cannot sustain.
On the other hand, counsel for the respondents has placed reliance upon instructions dated 07.10.1998 (Annexure R-1), which were based upon the judgment passed by the Supreme Court in the case of Prem Singh vs. Haryana State Electricity Board and others, 1996 (4) SLR 661, which state that where the appointments have been restricted to the extent of the advertised vacancies, the same should be followed meticulously. The appointment from the CWP No. 8494 of 2010 (O&M) 5 waiting list is to be made only if a candidate from the original list does not assume charge of his assignment or any vacancy from this list remains unfilled for any other reason. He, on this basis, contends that even if the instructions dated 03.08.2009 stood withdrawn vide instructions dated 07.05.2010, the 1998 instructions do not entitle the petitioner to the relief claimed once the post is filled up. Reliance has been placed upon the judgments of the Supreme Court in the cases of Surinder Singh and others vs. State of Punjab and others, AIR 1998 SC 18, Mukul Saikia and others vs. State of Assam and others, (2009) 1 Supreme Court Cases 386, Civil Appeal No. 1133- 1135 of 2010 titled as Rakhi Ray and others vs. The High Court of Delhi and others, decided on 01.02.2010 (Annexure R-2), to contend that once the advertised posts are filled up, the selection process comes to an end and there can be no scope for any further appointment. Accordingly, prayer has been made for dismissal of the writ petition.
Counsel for the petitioner has, while referring the instructions dated 07.10.1998 (Annexure R-1), submitted that the instructions do not restrict the appointment from the waiting list to be made, in case any vacancy from the select list remains unfilled for any other reason within the life span of the waiting list. He, on this basis, contends that the claim of the petitioner deserves to be allowed. He has placed reliance on a judgment of the Supreme Court in the case of Gujarat State Dy. Executive Engineers CWP No. 8494 of 2010 (O&M) 6 Association vs. State of Gujarat, 1994 (supplementary) (2) SCC 591 in support of this contention where it is observed that if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon and once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate, the appointments can be made. Accordingly, he prays that the stand of the respondents rejecting the claim of the petitioner is unjustified and is discriminatory viz-a-viz the petitioner when two other similarly placed persons, namely, Sh. Kutub Din and another, referred to above, have been given appointment on resignation of the candidates, who had joined after selection.
I have considered the submissions made by the counsel for the parties and with their assistance, have gone through the records of the case.
The facts are not in dispute and, therefore, need not be revisited. Admittedly, the name of the petitioner was recommended and was placed at Sr. No. 1 in the waiting list. Nine posts reserved for the SC-A category were advertised, stood filled when the candidates, who were selected, had joined. The right of the petitioner extinguished there. He has put forth his claim on the basis of the resignation submitted by one Sh. Balbir Singh, who had joined as Inspector, Food and Supplies, on 22.12.2006 but on acceptance of his resignation, the post became vacant on 18.04.2007. Petitioner CWP No. 8494 of 2010 (O&M) 7 is claiming appointment on the basis of this post, which has become now vacant.
The question, which requires to be addressed in the present case, is whether the petitioner could be issued the appointment letter since a vacancy has arisen now out of the advertised posts and selections made, for which the name of the petitioner stands at Sr. No. 1 in the waiting list?
The instructions dated 07.10.1998 (Annexure R-1), which are based upon the judgment of the Supreme Court in Prem Singh's case (supra), provide that the appointments have to be restricted to the extent of advertised vacancies and the appointment from the waiting list will be made only if a candidate from the original list does not assume charge of his assignment or any vacancy from this list remains unfilled for any other reason. With reference to these instructions, subsequent instructions dated 03.08.2009 (Annexure P-
8) were issued by the Government of Haryana, which were further based upon the judgment of the Supreme Court in Mukul Saikia's case (supra), wherein it was stated that the currency of the select list/waiting list shall deem to expire as soon as the posts advertised are filled up. Once the number of vacancies advertised have been filled, validity of the select list or waiting list expired whichever event was earlier in point of time. Any vacancy arising thereafter due to any reason(s) shall not be filled out of the waiting list. These instructions dated 03.08.2009 were withdrawn by the Government CWP No. 8494 of 2010 (O&M) 8 vide instructions dated 07.05.2010 (Annexure P-9) on the ground that the said judgment was a judgment in personam and not a judgment in rem. This, in my considered opinion, is an erroneous conclusion drawn by the Government of Haryana.
Hon'ble Supreme Court in the case of Mukul Saikia (supra) in para 15 has held as follows:-
"15. At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The select list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17.07.2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules." CWP No. 8494 of 2010 (O&M) 9
In the judgment passed by the Supreme Court in Prem Singh's case (supra), the judgment relied upon by the counsel for the petitioner in Gujarat State Dy. Executive Engineers Association (supra) was also considered. Reliance has also been placed upon on an earlier judgment of that Court in Madan Lal and others vs. State of Jammu and Kashmir, 1995 (3) SCC 486 as also the State of Bihar vs. Madan Mohan Singh and others, 1994 Supp.(3) SCC 308 to conclude that the advertisement and the whole selection process comes to an end as soon as the vacancies, which were advertised, were filled up. If the same list or the waiting list is kept alive for the purpose of filling up of other vacancies, it would amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and the selection process.
In the case of Surinder Singh and others (supra) also, the Hon'ble Supreme Court has observed that if the waiting list in one examination was to operate as an infinite stock for appointment, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from a service CWP No. 8494 of 2010 (O&M) 10 cannot be permitted as the same does not pass the test of reasonableness. In Rakhi Ray's case (supra) also, it has been held that once the notified vacancies are filled up, the selection process came to an end and thereafter, there could be no scope of any further appointment. In the light of the above settled position of law, the contention of the counsel for the petitioner cannot be accepted.
It is not in dispute that even if the instructions dated 03.08.2009 (Annexure P-8) stand withdrawn vide instructions dated 07.05.2010 (Annexure P-9), instructions dated 07.08.1998 (Annexure R-4/1) would hold the field. Even as per the instructions dated 07.10.1998, the claim of the petitioner cannot be accepted. The relevant portion of the said instructions read as follows:-
"Subject:- Appointment of candidates out of the waiting list prepared by the Haryana Staff Selection Commission. Sir, I am directed to invite your attention on the subject noted above and to say that it has been decided by the State Government that while making recruitment to various class-III posts on the basis of recommendations made by the Haryana Staff Selection Commission, the judgment of the Hon'ble Apex Court in case "Prem Singh vs. Haryana State Electricity Board", reported 1996 (4) SLR 661, wherein the appointments have been restricted to the extent of advertised vacancies should be followed meticulously. Consequently, the appointment from the waiting list will be made only if a CWP No. 8494 of 2010 (O&M) 11 candidate from the original list does not assume charge of his assignment or any vacancy from this list remains unfilled for any other reason. The instructions issued vide Memo No. 42/43/84-5GSI, dated 20.1.88 shall be deemed to have been modified to the above extent."
A perusal of the above instructions also would not lead us to the conclusion, as is being tried to be projected by the counsel for the petitioner, wherein he has made an effort to bring the vacancy, which has come into existence due to resignation by stating it to be a 'post unfilled for any other reason'. These instructions do not provide for the same. The guiding and golden principle under the rules and instructions applicable thus is that once a candidate from the original list assumes charge of his assignment, the said post stands exhausted and no appointment against that post can be made from the recommended list of candidates of that selection.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
(AUGUSTINE GEORGE MASIH )
October 10, 2012 JUDGE
pj