Punjab-Haryana High Court
Shiv Charan S/O Dalmir Singh vs State Of Haryana And Others on 15 May, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
CWP No.1774 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CWP No.1774 of 2011
Date of Decision: 15.05.2012
Shiv Charan s/o Dalmir Singh
.....PETITIONER
VERSUS
State of Haryana and others .....RESPONDENTS
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
PRESENT: Mr. Vikas Kuthiala, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana.
Mr. H.N.Mehtani, Advocate,
for HPSC.
AUGUSTINE GEORGE MASIH, J.
Petitioner has approached this Court praying for issuance of a writ of certiorari for quashing the result dated 31.12.2010 (Annexure P-6) of the screening test only to the extent of making eligible the Dependents of Ex-Servicemen (hereinafter referred to as 'DESM') category for the post of Hindi Lecturer when eligible Ex- Servicemen Category candidates are available and for treating the petitioner as eligible for participating in the selection process of Lecturers in Hindi under the ESM Category.
CWP No.1774 of 2011 2
It is the contention of the petitioner that the petitioner being eligible for appointment to the post of Lecturer in Hindi (School Cadre) applied in response to the advertisement dated 18.06.2009 issued by the Haryana Public Service Commission (hereinafter referred to as 'Commission') for filling up 1317 posts of Lecturers in various subjects, out of which 240 posts were earmarked for appointment to the post of Lecturer in Hindi. Out of these 240 posts, 12 posts were reserved for the Ex-Servicemen Category, out of which, 8 posts were reserved for the male category and 4 posts were reserved for the female category. Screening test was held on 26.12.2010 and the result was declared on 31.12.2010 by the Commission. In the said result, the cut off marks, which were fixed for the EXM Category, were 56 whereas for the DESM Category, the marks were fixed at 49 which, the petitioner contends, cannot be done in the light of the fact that the petitioner had obtained 55 marks and he being higher in merit, as per the marks obtained in the screening test, is entitled to be called for interview and cannot be overlooked in the light of the fact that the posts have been reserved for the ESM Category and DESM Category Candidates can only be considered in case none from the ESM Category is available for appointment to the posts advertised.
Notice in this petition was issued to the respondents and reply has been filed on behalf of respondent No. 3-Commission, wherein it has been stated that initially the cut off marks for short CWP No.1774 of 2011 3 listing, as per the screening test for calling the candidates for interview for the ESM Category, were fixed at 56 and as the petitioner had secured 55% marks, he was not called for interview but thereafter, some of the candidates, who had obtained the cut off marks, were found to be ineligible resulting in the rejection of their candidature which lowered the cut off marks for the ESM Category. Petitioner came within the zone of eligibility of consideration for appointment to the post of Lecturer in Hindi (School Cadre) and was accordingly, called for interview and has been found to be not making the grade and was not within the zone of selection on declaration of the result.
Counsel for the petitioner has argued the claim of the petitioner on the basis that in the presence of the Ex-Serviceman Category candidates being eligible, the Dependents of Ex- Serviceman Category candidates cannot be considered for appointment to the post of Lecturer in Hindi. In support of this contention, reliance has been placed upon a Division Bench judgment of this Court passed in Rajesh Kumar Tahlan vs. State of Haryana and others, 2002 (3) SLR 782 and a Single Bench judgment of this Court in the case of Dr. (Major) Harsh Vivek Singh vs. State of Punjab and another, 2009 (4) SCT 457, wherein it has been held that the Selection Board is required to consider the claim of ESM in the first instance before the claim of DESM is to be considered. If the ESM Category candidates are found eligible and CWP No.1774 of 2011 4 fit for selection than the DESM Category candidates cannot be considered for appointment. Accordingly, prayer has been made that the present writ petition deserves to be allowed.
Counsel for the respondents, in the light of the written statement filed by the Commission, submits that the present writ petition has been rendered infructuous as the candidature of the petitioner under the ESM Category has been accepted and he has been declared eligible in the screening test for participation in the interview.
I have considered the submissions made by the counsel for the parties and with their assistance, have gone through the records of the case.
It is by now well settled in the light of the Division Bench judgment of this Court in Rajesh Kumar Tahlan's case (supra) that the claim of the ESM Category is to be considered in the first instance by having their eligibility considered independently before claims of DESM Category are to be considered. If the ESM are found ineligible and are not selected then against the balance unfilled posts, the selection was required to be made from amongst the DESM Category. This dicta flows from the judgment of the Supreme Court in Dilwan Singh and others vs. State of Haryana and others, 1996 (2) RSJ 514, wherein the Supreme Court has held that the object of reservation of the ex-servicemen is to rehabilitate them after their discharge from the defence services. As per the instructions issued by the State Government, in the absence of CWP No.1774 of 2011 5 availability of the ex-servicemen instead of keeping those posts unfilled, the dependents of ex-servicemen would also be considered. The object thereby would be that the Selection Board should consider the case of ESM category candidates independently in the first instance before the claims of the dependent children of the ex- servicemen are considered and if they are found eligible and selected leaving some posts unfilled, these posts can be filled up by selection from the dependents of ex-servicemen category. Same as is the law laid down by this Court in Dr. (Major) Harsh Vivek Singh's case (supra).
In view of the above, the present writ petition deserves to be allowed and it is held that since the petitioner under the ESM Category was available, dependents of ex-servicemen could not be shortlisted for selection for consideration for appointment to the post of Lecturer in Hindi. However, so far as the relief prayed for in the present writ petition is concerned the same has been rendered infructuous as the prayer made by the petitioner primarily was for considering his claim for participation in the selection process i.e. interview for the post of Lecturer in Hindi under the ESM Category, which has been exceeded to by the respondents.
The present writ petition is allowed in the above terms.
(AUGUSTINE GEORGE MASIH) JUDGE May 15, 2012 pj CWP No.1774 of 2011 6 CWP No.1774 of 2011 7