Punjab-Haryana High Court
Garima Jindal vs Haryana Vidyut Parsarannigam Ltd. & Anr on 6 August, 2012
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
CWP No.13384 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.13384 of 2011
Date of decision: 06.08.2012
Garima Jindal ......Petitioner(s)
Versus
Haryana Vidyut ParsaranNigam Ltd. & anr. ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. R.K.Malik, Sr. Advocate with Mr. Jitender Bedwal, Advocate
for the petitioner(s).
Mr. Parveen Gupta, Advocate for the respondents.
Rakesh Kumar Garg, J.(Oral)
On the recommendation of the Haryana Vidyut Prasaran Nigam Limited, the Haryana Staff Selection Commission vide advertisement No.1/2009 dated 10.012009 advertised various posts including 42 posts of Junior Accountant. The relevant extract of the advertisement reads as follows:-
"Cat. No.38.
42 posts of Junior Accountant (Gen=20, SC=6, BCA=4, BCB=3, ESM GEN=3, ESM SC=1, ESM BCA=1, ESM BCB=1, OSP SC=1, OSP BCA=1, PHC Ortho=1) E.Q i) Bachelor's Degree in Commerce with at least 50% marks for General category and 45% marks for SC category candidates of Haryana Domicile of any recognized University.
ii) Having the working knowledge of
Computer covering the following topics:
a) Computer Fundamentals.
CWP No.13384 of 2011 2
b) Operation of Internet/E-Mail
c) MS Office (MS word, Excel & Power Point)
iii) Hindi/Sanskrit upto Matric Standard.
Pay Scale:Rs.4500-7000 Age:18-40 years Note:-The upper age relaxable to 5 years for SC/ST and BC/Economically BC candidates of Haryana State only. (In the case of employees of DHBVN, HVPNL and HPGCL, age limit is relaxable to the extent of service rendered by them in these organizations provided they apply through proper channel). The upper age is also relaxable in the case of Ex-Servicemen to the extent of Military service rendered by them by adding three years service subject to possessing the requisite certificate."
It is the case of the petitioner that she was fully eligible in all respects and had applied for the said post. She was interviewed vide Roll No.00153. The result was declared on 22.9.2010 and the petitioner was selected and put in waiting list No.1. It has been further averred that the petitioner belongs to the General Category and all the instructions issued by the Haryana Government are applicable to the respondents with regard to reservation of posts. According to her, the Hon'ble Supreme Court in Indira Sawhney v. Union of India AIR 1997 SC 597 has held that reservation shall not exceed more than 50% and that even if there is a backlog even then reservation shall not exceed more than 50%. It is the further case that the Haryana Govt. issued instructions dated 12.9.1997 (Annexure P/1). According to the petitioner, the respondents have not acted as per the instructions (Annexure P-1) as out of total 42 posts, at least 21 posts should have been filled up from general category and if 21 posts would have been filled up from general category, then the petitioner CWP No.13384 of 2011 3 was entitled to be appointed, as only 20 candidates of general category have been appointed and petitioner is at No.1 in the waiting list.
It is the further case of the petitioner that as per the information given by the respondents under the RTI Act, the candidate above the petitioner i.e. Raju Sharma in the general category has already joined service. The petitioner also filed representations on 19.4.2011 and 1.7.2011 to consider her case for appointment but got no reply.
The instant petition has been filed by the petitioner challenging the aforesaid action of the respondents whereby her claim has not been considered for appointment as Junior Accountant in violation of the Govt. Instructions dated 12.9.1997 and thus, has prayed that the aforesaid action of the respondents be quashed and a further direction be given to them to consider her claim for appointment as Junior Accountant with effect from the date when the appointment orders were issued for others.
Upon notice, the respondents have put in appearance and have filed separate written statements.
In the written statement filed on behalf of the Haryana Staff Selection Commission, it has been stated that the respondent- Commission is merely a recruitment agency and carries out the recruitment as per requisition of the post sent to the Commission. Furthermore, the calculation of vacancies as per reservation policy is made by the respective department i.e. HVPNL in the instant case. It has been further stated that instructions dated 12.9.1997 have been further amended by the Government vide instructions dated 6.11.2001 (Annexure R-2/2), according to which and as per the provisions of Article 16(4B) of the Constitution, it has been decided by the State of Haryana that the reserved vacancies for SC/ST in all cases of direct recruitment and CWP No.13384 of 2011 4 promotion wherever applicable which have remained unfilled in the earlier years 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%. It was further submitted that the Garima Jindal-petitioner belongs to General Category and she is a selected candidate in the waiting list in General Category. According to the Govt. Instructions dated 7.10.1998 (Annexure R-2/1), the appointment from the waiting list is required 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.
Respondent No.1 in its reply has stated as under:
"That the contents of Para 5 of the writ petition are denied for factually misleading and legally mis-conceived. It is further respectfully submitted that out of the advertised 42 posts of Junior Accountants, in fact 23 posts were meant to be filled from the persons belonging to the general category only. It is pertinent to submit that the 3 posts for ESM General category were in addition to the 20 posts for general category and therefore the 23 posts were for the persons belonging to the general category out of the total 42 posts and therefore the reservation for the reserved category persons was less than 50% and therefore the action of the respondent is fully legal just and fair and is fully in accordance with law. The details of the break-up of the CWP No.13384 of 2011 5 percentage of the posts to be filled from the persons belonging to the reserved category as per the instructions issued by the Government from time to time is as under:-
"Total Posts Advertised 42(Jr. Accountant) General Category =20 Out of Total 14% Horizontal reservation for ESM category, 7% Horizontal reservation for ESM general candidate =03 ____ Total posts for general category =23 As per the Reservation Policy for SCs/BCs services in Haryana Govt. table below sums up the present position quantum of reservation both vertical and Horizontal.
THE PRESENT STATUS OF RESERVATION (In direct recruitment for class-III & IV) Category Vertical Horizontal SC 20% 2% ESM + 1% Sports BC-A 16% 2% }ESM + 1% Sports BC-B 11% 3%} PH *3% ---50% 7
General 50% 7% ESM + 1% Sports
Category
Total 100% 14% + 3% Sports
Person=17 %
That the contents of this Para of the writ
petition are matter of record.
That the contents of this Para of the writ
petition relating to the submissions of the
representations by the petitioner are matter of record. However, it is respectfully submitted that CWP No.13384 of 2011 6 the petitioner is not entitled for the appointment in view of the fact that she is in the waiting list and the waiting list is operative for a period of one year from the date of making recommendations.
Moreover, the person from the waiting list is
considered for appointment only when the
persons above him/her do not join the service at all. The waiting list is not operative when some of the candidates in the higher merit have joined the post and assumed charge and thereafter they have resigned subsequently (Annexure R-1). Because after joining the duties, the vacancy is deemed to be consumed and the waiting list is not operational and the candidate in the waiting list cannot seek appointment on the ground of the persons higher in merit having resigned sometime after assuming the charge. As per the recommendations dated 22.09.2010 (Annexure P-
3)sent by the respondent No.2 to the respondent No.1 (at page 19/20), it is stipulated that the candidate selected in the waiting list should not be considered against the fresh vacancies. The persons higher in merit having once joined and subsequently resigned would render the vacancies as being fresh which can not be filled up from amongst the persons placed in the waiting list."
and thus, it has been prayed that the writ petition having no merit be dismissed.
The petitioner has also filed replication to the written statement filed by respondent No.1. Along with replication, the petitioner has placed letter dated 22.9.2010 (Annexure P-6) and instructions dated 26.7.2001 (Annexure P7).
CWP No.13384 of 2011 7
In the replication, the petitioner has specifically averred that as per letter dated 22.9.2010 (Annexure P-6), 3 Ex-serviceman General Category posts remained vacant because of non-availability of the candidates. It has been further averred that in view of the instructions vide Annexures P-7 and P-8 when reservation is horizontal and candidates are not available then it will go to the same main category. According to the learned counsel for the petitioner, out of total 42 advertised posts, 20 posts were meant for general category and 3 posts for General Ex-Serviceman Category on the basis of horizontal reservation and since no Ex- Serviceman General Category candidate was available, three candidates of General Category next in merit were to be appointed and thus, the petitioner was entitled to be appointed.
I have heard learned counsel for the parties and perused the 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 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 CWP No.13384 of 2011 8 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 No.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 P-1.
At this stage, learned counsel for the petitioner has further prayed that the petitioner is entitled for appointment as Junior Accountant from the date her other batchmates were appointed and was also entitled to all consequential benefits. In support of his claim, learned counsel for the petitioner has relied upon a judgment of this Court in CWP No.15415 of 2009 decided on 30.11.2009. The relevant paragraph reads thus:
"During the pendency of this petition, the petitioner stands appointed. The only grievance of the petitioner now is that he has to be granted the benefit of appointment from the date, the other selected candidates were appointed. Similar directions were issued in the judgment of this Court dated April 11, 2005 passed in CWP CWP No.13384 of 2011 9 No.15043 of 2004. Since the petitioner was wrongly denied appointment and now he has been selected recognizing his eligibility, it is directed that the petitioner's appointment shall relate back from the date when other selected candidates were appointed. The petitioner shall be granted the benefit of length of service, seniority etc. on the basis of his merit position. However, the petitioner shall not be entitled to any monetary benefit during the interregnum."
Similarly in CWP No.1405 of 2009 (Vikash Kumar versus Haryana State Pollution control Board and another) decided on 13.1.2010, this Court held as under:
"The petitioner seeks for the treatment of the appointment as having been effected from the date when persons lower in merit had been appointed. The appointment to the petitioner had been denied on a wrong basis and therefore, the petitioner must be taken as appointed from a retrospective date. Learned Senior Counsel would say that he is prepared to forego the benefits from due date of appointment to the actual date of appointment that shall be done by virute of this order. The deemed date of appointment to be applied is indeed novel, but the issue has come up before this Court in Hawa Singh Sangwan Vs. Union of India and others CWP No.13384 of 2011 10 1991(6) SLR 753, when this Hon'ble Court dealt with a case of selection by direct recruitment of Sub Inspector and the actual appointment was made only in 1974 when the selection had taken place in the year 1970. The delay in appointment was seen as arising due to procedural defects and the Court held that a person, who has unduly denied the appointment was entitled to arrears of salary, confirmation, seniority and other benefits. The same approach has also been rendered by a subsequent judgment of this Hon'ble Court in Dr. Rajneet Singh and others Vs. State of Punjab, through its Principal Secretary and others in C.W.P. No.11280 of 2007 dated 02.07.2009. The learned Judge had observed that the right of appointment along with others, which had been frustrated by an illegal action could be compensated only by directing the appointment to be effective from the date when others were appointed and they were also granted consequential benefits arising from the deemed date of appointment other than arrears of salary. In terms of the aforesaid two judgments, the petitioner shall be deemed to have appointed on the same day when the appointment orders were issued for others and the date shall be reckoned for all service benefits such as seniority etc. from CWP No.13384 of 2011 11 the respective date. The petitioner however shall not be entitled to any remuneration during the period and the remuneration shall be made from the date when he is offered the employment, which shall be issued within a period of two weeks from the date of receipt of copy of the order."
Thus, in view of the aforesaid discussion, the writ petition is allowed and the respondents are directed to consider the claim of the petitioner for appointment as Junior Accountant with effect from the date her other batchmates were appointed. However, it is made clear that in case the petitioner's claim is accepted, she will not be entitled to any remuneration from that date and the remuneration shall be made from the date when she is offered employment. However, such deemed date shall be reckoned for all service benefits such as seniority etc. Needful be done within one month from the date of receipt of certified copy of this order.
August 06, 2012 (RAKESH KUMAR GARG) ps JUDGE