Punjab-Haryana High Court
Mukesh vs State Of Haryana And Others on 3 April, 2014
Author: Augustine George Masih
Bench: Augustine George Masih
CIVIL WRIT PETITION NO.6512 OF 2014 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: APRIL 03, 2014
Mukesh
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. Yesh Paal Malik, Advocate,
for the petitioner.
*****
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioner has approached this Court, praying for issuance of a writ of mandamus, directing the respondents to appoint him on the post of Demonstrator in Physical Education (for short, "DPE") in the reserved category of scheduled caste as he is a duly selected candidate, who has been placed in the waiting list.
It is the contention of counsel for the petitioner that the petitioner, in pursuance of advertisement No.6/2006, dated 20.07.2006, applied for the post of DPE. 62 posts were reserved for the scheduled caste category, to which the petitioner belongs. Interviews for the said posts were held in July 2009 but prior to declaration of the result, an advertisement dated 13.08.2009 was published by the Haryana Staff Selection Commission, Panchkula-respondent No.3 for filling up 287 posts of DPE, Khurmi Rakesh 2014.04.07 09:35 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.6512 OF 2014 :{ 2 }:
out of which 61 posts were for reserved categories alongwith 7 posts of backlog of scheduled caste category. The result of the earlier selection was declared on 22.04.2010, where the petitioner was placed in the waiting list at Sr.No.6. Out of 62 posts reserved for scheduled caste category advertised in the year 2006, 60 candidates joined, leaving 2 posts vacant. The second advertisement, which was published on 13.08.2009, ended up in the declaration of result in the year 2011.
Counsel for the petitioner contends that action of the respondents in issuing a fresh advertisement dated 13.08.2009, which contained 7 backlog posts of scheduled caste category, is not sustainable as the petitioner was available for appointment, who had been duly selected in pursuance of the advertisement No.6/2006 dated 20.07.2006 and placed in the waiting list at Sr.No.6. He, thus, contends that a direction may be issued to the respondents to appoint the petitioner against the said backlog posts.
This contention of counsel for the petitioner cannot be accepted in the light of the fact that the petitioner only had a right for consideration for appointment to the posts, which were advertised and in pursuance whereof he had put-forth his claim. Admittedly, out of the 62 posts advertised for the scheduled caste category, 60 candidates had joined, leaving only two posts, which could have been filled up from the waiting list. Since the petitioner is placed at Sr.No.6 in the waiting list, he could not have been appointed against the two posts belonging to the scheduled caste category, which had remained vacant. The right of the petitioner, therefore, in pursuance of the advertisement No.6/2006 dated 20.07.2006, stood extinguished and, therefore, the petitioner was not having any right for Khurmi Rakesh 2014.04.07 09:35 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.6512 OF 2014 :{ 3 }:
consideration for the backlog posts, which had not been advertised prior to the advertisement dated 13.08.2009. A candidate who applies for appointment in pursuance of a particular advertisement, can only be considered against those advertised post(s) and he cannot be allowed to stake his claim against the posts(s), which is/are advertised prior or subsequent to the advertisement in pursuance whereof, he had applied. Without the advertisement of the posts, no person can be appointed to the said public post(s) as it would amount to violation of Articles 14 and 16 of the Constitution of India.
An argument has been raised by counsel for the petitioner that the posts, which have become available within a period of one year from the date of publication of the result, had to be filled up from the waiting list. However, he could not produce any statutory rules/instructions before this Court to justify his said argument. In the absence of any statutory rules/instructions to that effect, this contention of counsel for the petitioner cannot be accepted and is, therefore, rejected. He further states that there are certain judgements, which have been passed by this Court in this regard. However, he could not produce any such judgement.
I am of the considered view that without there being a mandate of law, posts, which have not been advertised, cannot be filled without the same having been put to public domain, giving chance to all eligible candidates to participate in the said selection, failing which it would amount to violating the basic principles of selection to a public office, amounting to not following Articles 14 and 16 of the Constitution of India. The same cannot be permitted.
Khurmi Rakesh 2014.04.07 09:35 I attest to the accuracy and integrity of this document
CIVIL WRIT PETITION NO.6512 OF 2014 :{ 4 }:
The writ petition, therefore, being devoid of merit, stand dismissed.
April 03, 2014 ( AUGUSTINE GEORGE MASIH )
khurmi JUDGE
Khurmi Rakesh
2014.04.07 09:35
I attest to the accuracy and
integrity of this document