Punjab-Haryana High Court
Joginder Singh And Others vs State Of Haryana And Others on 7 February, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
CIVIL WRIT PETITION NO.8500 OF 2011 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: FEBRUARY 07, 2014
C.W.P. No.8500 of 2011
Joginder Singh and others
.....Petitioners
VERSUS
State of Haryana and others
....Respondents
C.W.P. No.19343 of 2010
Joginder Singh and another
.....Petitioners
VERSUS
State of Haryana and others
....Respondents
C.W.P. No.21772 of 2010
Meenakshi and others
.....Petitioners
VERSUS
State of Haryana and others
....Respondents
C.W.P. No.24319 of 2011
Sunita and another
.....Petitioners
VERSUS
State of Haryana and others
....Respondents
C.W.P. No.3379 of 2012
Rajesh Kumar and others
.....Petitioners
VERSUS
State of Haryana and others
....Respondents
Khurmi Rakesh
2014.02.21 09:31
I attest to the accuracy and
integrity of this document
CIVIL WRIT PETITION NO.8500 OF 2011 :{ 2 }:
C.W.P. No.9436 of 2012
Manoj Kumar
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
C.W.P. No.16868 of 2012
Harvinder
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
C.W.P. No.21412 of 2012
Sunil Dhillon and another
.....Petitioners
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. R. K. Malik, Sr.Advocate with
Mr. Sangram Malik, Advocate,
for the petitioners.
Mr. Harish Rathee, Sr.DAG, Haryana,
for the State.
*****
AUGUSTINE GEORGE MASIH, J. (ORAL)
By this order, I propose to decide Civil Writ Petition Nos.8500 of 2011, 19343, 21772 of 2010, 24319 of 2011, 3379, 9436, 16868 and 21412 of 2012.
Khurmi Rakesh 2014.02.21 09:31 I attest to the accuracy and integrity of this document
CIVIL WRIT PETITION NO.8500 OF 2011 :{ 3 }:
In Civil Writ Petition No.19343 of 2010, the prayer made by the petitioner is for considering his claim for appointment as Taxation Inspector and also for direction that reservation shall not be made more than 50% of the total posts advertised. In the other writ petitions, petitioners are seeking appointment on the unfilled JBT posts.
Since the issue involved and the ultimate prayer made in these writ petitions are identical i.e. the claim is based upon the fact that reservation could not be more than 50% of the total posts advertised and the petitioners being in the waiting list are required to be appointed against the unfilled ex-servicemen (general) posts. These petitions are taken up together and being decided by this common judgement. For the sake of convenience, facts are being taken from Civil Writ Petition No.8500 of 2011, on the request made by counsel for the parties.
Haryana Staff Selection Commission (for short, "the Commission") issued an advertisement dated 13.8.2009, where applications were invited for appointment to 9647 posts of JBT teachers, which included 349 posts of backlog of reserved categories of Rohtak and Sonepat Districts. Out of these advertised posts, 2734 posts were for general category, 1340 posts for general female, 223 posts for ex-servicemen (ESM) general and 102 ESM general female. There was reservation for other categories as well but the details are not being given as the issue involved in the present writ petitions revolves around the unfilled ESM general category posts.
Petitioners, being eligible, applied in response to the advertisement in the general category. The result of the selection was declared on 18.9.2010 and the petitioners were shown selected in the Khurmi Rakesh 2014.02.21 09:31 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.8500 OF 2011 :{ 4 }:
waiting list of general category. As per the result declared, out of the 223 posts reserved for ESM general category, only 132 candidates were available and the remaining 91 posts remained vacant. Out of 102 advertised posts reserved for ESM general female, only 8 candidates were found eligible and selected, resulting in 94 posts remaining vacant. Petitioners are staking their claim for appointment against these 185 [91 ESM general category (male) + 94 ESM general category (female)] vacant posts. This claim of the petitioners is based upon instructions dated 2.7.2010 (Annexure P-3). Reliance has also been placed upon instructions dated 7.10.2008 (Annexure P-7).
Petitioners are also staking claim for appointment against 50% of the seats, which were advertised on the ground that as per the Haryana Government instructions dated 12.9.1997 (Annexure P-2), reservation for appointment to the posts cannot exceed more than 50% even if there is a backlog. These instructions are based upon the judgement passed by the Supreme Court in Indra Sawhney Vs. Union of India, 1992 (Suppl.) 3 SCC
217. On this basis, it is contended that posts for the reserved categories cannot exceed more than 4823 and, therefore, the candidates in the general category being available, they should be appointed against the remaining unfilled posts so that the general category candidates come to occupy 50% of the posts advertised. Contention is that 4442 candidates of general category and 5205 candidates for the reserved category were recommended for appointment. In any case, it has been contended that as per the instructions dated 2.7.2010 (Annexure P-3), 185 posts of ESM general category male/female were available and, therefore, the petitioners should Khurmi Rakesh 2014.02.21 09:31 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.8500 OF 2011 :{ 5 }:
fall within the said zone and are entitled to be appointed against those posts. Reliance has also been placed upon the Haryana Government instructions dated 7.10.1998 (Annexure P-5) to contend that if the candidates of the original list do not accept the offer or some candidate is declared ineligible, then the next candidate in the waiting list is entitled to appointment. The petitioners are, therefore, entitled to be offered such unfilled posts in the general category as well.
In reply, which has been filed by respondent Nos.1 and 2, it has been stated that out of the advertised 9647 posts of JBT teachers, Commission has recommended 8401 candidates, which include 4257 candidates of general category and 4144 of reserved category. On this basis, it has been submitted that there is no recommendation in excess of 50% of the advertised posts and infact more general category candidates have been recommended than all the reserved category. As regards the Haryana Government instructions dated 7.10.1998 (Annexure P-5), it has been stated that 83 selected candidates of the general category did not join their duties and according to these instructions, appointment letters have been issued to the candidates in the waiting list as per their merit. Petitioners, being lower in merit, could not be issued the appointment letters.
Referring to instructions dated 12.9.1997, Annexure P-2, it has been stated that said instructions have been amended vide Haryana Government instructions dated 6.11.2001, Annexure R-2. This amendment has been brought in the light of amendment made to the Constitution of India, whereby Article 16(4B) has been incorporated in the Constitution by the Constitution (Eighty first Amendment) Act, 2000. In pursuance to the Khurmi Rakesh 2014.02.21 09:31 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.8500 OF 2011 :{ 6 }:
said Article, it has been decided that the posts which have remained unfilled in the earlier years i.e. backlog and/or carry forward vacancies would be treated as a separate and distinct group and will not be considered together with reserved vacancies of the year in which they are being filled up for determining the ceiling of 50% on filling up of reserved vacancies. Since the advertisement included the backlog of reserved categories, the contention of the petitioners that the reservation exceeded 50% of the posts advertised, does not prevail.
Learned senior counsel for the petitioners submits that the petitioners are entitled to appointment to 185 posts reserved for ESM general male/female category in the light of the Haryana Government instructions dated 12.9.1997 (Annexure P-2) as also the instructions dated 7.10.2008 (Annexure P-7). According to these instructions, on reconsideration of the matter by the Government, it has been decided that the horizontal reservation is a similar compartment within the bigger compartment of vertical reservation should be given effect to in case no candidate is found suitable for appointment even on re-advertisement of the vacancies reserved for ESM of a particular category and will be filled up from amongst the same category candidates. Similar is the position with regard to the Outstanding Sports Persons (OSP) and in this regard reliance has been placed upon the instructions dated 7.10.2008 (Annexure P-7).
Learned senior counsel has referred to the judgement passed by this Court in Civil Writ Petition No.13384 of 2011 (Garima Jindal Vs. Haryana Vidyut Parsaran Nigam Ltd. and another), decided on 6.8.2012 (Annexure P-8), wherein a similar claim against the unfilled ESM category posts was Khurmi Rakesh 2014.02.21 09:31 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.8500 OF 2011 :{ 7 }:
considered and directions issued to fill up the said posts through the general category candidates. Letters Patent Appeal No.1775 of 2012 (Haryana Vidyut Prasaran Nigam Limited Vs. Garima Jindal and another), stands dismissed vide order dated 9.11.2012. Special Leave to Appeal (Civil) No.1493 of 2013 preferred by Haryana Vidyut Prasaran Nigam Limited also stands dismissed by the Hon'ble Supreme Court on 23.9.2013. On this basis, he contends that the judgement having attained finality would cover the claim of the petitioners in their favour, entitling them to the claim as has been made by them in the present writ petitions.
On the other hand, counsel for the respondents submits that the instructions dated 2.7.2010 (Annexure P-3), on which reliance has been placed by counsel for the petitioners, would not be applicable to the case in hand as these instructions have come into existence after the initiation of the selection process. He contends that advertisement was issued on 13.8.2009 and the process of selection had already been initiated, which culminated in declaration of the result on 8.9.2010. The principle of non-change of rules during the selection process would come into force and, therefore, the said instructions cannot be relied upon by the petitioners for the claim made in the present writ petitions. As regards instructions dated 7.10.2008, Annexure P-7, his contention is that the said decision was specific to the OSP category only and would be applicable to that very category and not to any other category. The benefit, therefore, cannot be claimed by the petitioners by expanding its ambit as a general rule, making it applicable to the selection process in question. The judgement in Garima Jindal's case (supra) is sought to be projected as per-incuriam on the ground that the said Khurmi Rakesh 2014.02.21 09:31 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.8500 OF 2011 :{ 8 }:
judgement has been pronounced by this court on the basis of the concession given by counsel for the respondents wherein he did not dispute the fact that the instructions dated 7.10.2008, which related to the OSP category was also applicable to such unfilled posts of ESM general category and, therefore, the posts from the general category candidates could be filled up because of non-availability of candidates belonging to ESM general category. On this basis, he contends that the claim made by the petitioners cannot be granted and the writ petitions deserve to be dismissed.
I have considered the submissions made by counsel for the parties and have gone through the records of the case.
The initial plea, which was taken by the petitioners in the writ petitions, was that reservation could not exceed more than 50%, even if there is a backlog and this assertion was based upon the judgement of the Supreme Court in Indra Sawhney's case (supra) and for that reliance was placed upon the instructions dated 12.9.1997. This claim of the petitioners stands negated in the light of the subsequent instructions dated 6.11.2001 (Annexure R-2), which were issued in the light of the amendment of the Constitution of India by incorporation of Article 16 (4B) by the Constitution (eighty first Amendment) Act, 2000, on the basis of which State Government decided to amend the instructions, according to which the backlog/carry forward reserved vacancies of earlier years would be treated as a separate and distinct group and would not be subject to any ceiling. In view of the subsequent instructions dated 16.11.2001 and that too on amendment of the Constitution, the ground of the petitioners with regard to the excessive reservation of posts cannot sustain. It needs to be mentioned Khurmi Rakesh 2014.02.21 09:31 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.8500 OF 2011 :{ 9 }:
here that out of advertised posts, 349 posts were backlog of the reserved categories.
The second contention based upon the instructions dated 7.10.1998 (Annexure P-5) for appointment of candidates out of the waiting list prepared in case the posts advertised remained unfilled, also cannot be of any help to the petitioners in the light of the fact, as has been stated in reply of respondent Nos.1 and 2, that 83 selected candidates of general category did not join their duties and accordingly appointment letters were issued to 83 candidates from the waiting list as per their merit. Petitioners, being lower in merit in the waiting list, have not been offered appointment to the posts in question.
The only ground which has been pressed into service by the learned senior counsel for the petitioners, which is based upon the instructions dated 2.7.2010(Annexure P-3) and the instructions dated 7.10.2008 (Annexure P-7) with regard to the filling up of unfilled advertised vacant posts belonging to ESM general male/female category, cannot be accepted for the simple reason that the instructions dated 2.7.2010, which deal with ESM category posts, has come into existence and enforced with effect from 2.7.2010, which is much after the issuance of advertisement dated 13.8.2009. By the said time, the process of selection had been initiated. Though the result was declared on 18.9.2010 i.e. subsequent to the issuance of instructions but the same cannot be made effective to the present selection. By now, it is well settled that the rules of game cannot be changed once the selection process starts. Reference in this regard can be made to the judgements of the Hon'ble Supreme Court in the case of Maharashtra State Khurmi Rakesh 2014.02.21 09:31 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.8500 OF 2011 :{ 10 }:
Road Transport Corporation Vs. Rajendera Bhimrao Mandve, 2001 (10) SCC 51, K.Manjusree Vs. State of A.P. and another, 2008 (3) SLR 269, Hemani Malhotra Vs. High Court of Delhi, 2008 (4) SLR 699 and Rakhi Ray and others Vs. The High Court of Delhi and others, 2010 (1) SCT 720. As regards the instructions dated 7.10.2008 (Annexure P-7), suffice it to say that the said instructions relate to only OSP category. It was not a general order or a policy decision, which would be applicable to all categories of candidates. Since this decision was specific to OSP category only, no benefit can be claimed by the petitioners in the present writ petitions where they are claiming appointments against the unfilled posts of ESM general category male/female.
A perusal of the judgement passed by the learned Single Judge in Garima Jindal's case (supra) would show that the claim of the petitioners in the said writ petition against the posts reserved for ESM general category was allowed by this Court on the basis of concession given by counsel for the respondents. The relevant part of the judgment, which deals with this aspect reads as follow:-
"I have heard learned counsel for the parties and perused the pleadings as well as the documents placed on record of the case. Facts are not in dispute.
Admittedly, the respondents advertised 42 posts of Junior Accountants out of which 20 posts were meant for General Category and 3 posts (on the basis of 7% horizontal reservation) were reserved for ESM General Category. It is further not in dispute that the petitioner was fully eligible for Khurmi Rakesh 2014.02.21 09:31 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.8500 OF 2011 :{ 11 }:
the aforesaid post and in fact, she was selected and was kept in waiting list. It is further not in dispute that all the general category candidates in the merit above the petitioner have been appointed. It is also not in dispute that three posts of ESM General Category on the basis of horizontal reservation are still lying vacant and the petitioner is at Serial No.1 of the waiting list in General Category. It may further be noticed at this stage that as per Annexure P-8, unfilled posts of horizontal reservation provided in the category of Outstanding Sports Person in General Category were to be filled up amongst the candidates of General Category, Outstanding Sports Person. Learned counsel appearing on behalf of the respondents could not dispute the fact that the aforesaid instructions Annexure P-
8 are also applicable to such unfilled posts of ESM General Category (reserved on the basis of horizontal reservation) and are to be filled up from the General Category candidate in case of non-availability of candidates belonging to ESM General Category and, thus, learned counsel for the respondents could not dispute that the petitioner was entitled to be considered for appointment being at Serial 1 in the waiting list in General Category candidates and there being three vacancies available belonging to ESM General Category. Thus the petitioner is held entitled to be considered for appointment as Junior Accountant in the General Category on the basis of her result for the posts as advertised vide Advertisement Annexure Khurmi Rakesh 2014.02.21 09:31 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.8500 OF 2011 :{ 12 }:
P/1............" (underline is mine) The said judgement, thus, cannot be said to be a precedent as the same is based upon a concession given by a counsel, which, on the basis of the instructions as mentioned above, is not based on correct appreciation with regard to applicability and interpretation of the instructions. The said judgement would, therefore, be per-incuriam. Merely because the Letters Patent Appeal and the Special Leave to Appeal have been dismissed, would not make it a binding precedent.
There is another ground, which dis-entitles the petitioners to the claim as has been made in the present writ petitions i.e. the advertisement dated 13.8.2009 has not been challenged. What the petitioners are basically contending is that there could not be more than 50% reservation. The petitioners were fully aware of the posts for which they were staking their claim and if they were of the view that the posts for the general category should have been more than what have been advertised, the challenge to such reservation of posts should have been made by the petitioners at the very initial stage. Petitioners having participated in the selection and having not succeeded, cannot now at this belated stage be allowed to make a grouse of excessive reservation of posts in the advertisement. The principle of estoppel would be applicable and the petitioners cannot now be allowed to back-track and take a plea that the advertisement was erroneous.
In any case, there being no challenge to the advertisement in the present writ petitions, the prayer made in the writ petitions cannot be granted as all advertised posts of the general category have been filled up Khurmi Rakesh 2014.02.21 09:31 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.8500 OF 2011 :{ 13 }:
and the claim of the petitioners now against the reserved category, which were so advertised for that category cannot be filled from a different category to which the petitioners belong, as this would amount to filling up those posts, which were not available for selection to the general category.
In view of the above, finding no merit in these writ petitions, the same stands dismissed.
February 07, 2014 ( AUGUSTINE GEORGE MASIH )
khurmi JUDGE
Khurmi Rakesh
2014.02.21 09:31
I attest to the accuracy and
integrity of this document