Punjab-Haryana High Court
Rajeev Kumar Beri vs Punjab & Haryana High Court & Others on 30 October, 2013
Bench: Hemant Gupta, Fateh Deep Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 30.10.2013
CWP No.8044 of 2005
Rajeev Kumar Beri ...Petitioner
Versus
Punjab & Haryana High Court & others ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. D.S.Patwalia, Advocate, for the petitioner.
Mr. B.S.Walia, Advocate, for respondent No.1.
Mr. Pavit Mattewal, Addl. AG, Punjab, for respondent No.2
and 3.
HEMANT GUPTA, J.
Challenge in the present writ petition is to the communication dated 12.01.2005, whereby in response to the representation submitted by the petitioner, he was informed that he has been assigned seniority below Shri Jaspinder Singh, at No.165 in the batch of 1995 Examination.
Punjab Public Service Commission - respondent No.3 advertised 44 posts of Punjab Civil Services (Judicial Branch) in May, 1995. The written examination was conducted in August/September, 1995. The result of the same was declared and published in Punjab Government's Gazette on 15.12.1995 after conducting viva voce. In pursuance said Kumar Vimal publication, the names of 41 candidates were recommended for 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.8044 of 2005 2 appointment including 22 of General category. The said publication has also a list of 43 candidates, who have qualified, but were not recommended for entry into High Court Register for appointment. The last of 22 General category candidates as per the original merit joined on 29.05.1996. The name of the petitioner finds mention at Sr.No.1 out of the 11 candidates, who were declared unqualified and four of them have failed in Punjabi language and, therefore, not called for interview.
The petitioner herein filed a writ petition bearing CWP No.1112 of 1996 claiming that he has obtained 32.66% marks in the paper of Punjabi Language and if the marks were rounded off, he would obtain the requisite 33% marks and, thus, would qualify the written test. The said writ petition was allowed by the Division Bench of this Court vide order dated 27.03.1996. The operative part of the order reads as under:
"Consequently, we have no option but to allow this writ petition in the same terms as in Asha Mehta Vs. State of Punjab & another 1993 (3) RSJ 1 and hold that the petitioner would be deemed to have obtained 33% marks in the subject of Punjabi. Let these marks be counted for considering the eligibility of the petitioner for being called for interview. If by counting these marks, he is held eligible for being called for interview, let the Public Service Commission, respondent No.2, fix a date for that purpose expeditiously. Needless to mention that if after interview, the petitioner is found to be more meritorious than the last candidate appointment in the general category from the batch in which the petitioner had taken the written examination, then the petitioner would be given appointment w.e.f. the date of last candidate was given appointment in the general category. However, in the eventuality, the petitioner would not be entitled to the pay for the back period, but that date of appointment would be counted towards seniority and other benefits."(Emphasis Supplied) Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.8044 of 2005 3 The Special Leave Petition against the said order was dismissed on 25.03.1997. It was on 16.12.1997, the name of the petitioner was recommended for appointment after he was called for interview.
After the name of the petitioner was recommended on 16.12.1997, the petitioner was offered letter of appointment on 23.05.1998.
Condition No.6 in the letter of appointment reads as under:
"6. As stated by the State Government, in its letter No.4/6/96- 3Judl.(I)/1214 dated 15.05.1998, his name may be added after the name of Shri Jaspinder Singh, the last successful candidate belonging to General Category as intimated vide Government letter No.4/30/96-3Judli.(I)/1326 dated 28.05.1997. His seniority will be determined later on alongwith other candidates as per orders of the Hon'ble High Court."
It is, thereafter, the petitioner joined as Civil Judge (Junior Division) on 03.06.1998.
On the other hand, some of the candidates from Sr.No.1 to 15 of the Gazette Notification (the candidates who have qualified the examination but were not recommended) invoked the writ jurisdiction of this Court claiming that their names are required to be entered in the High Court register in order of merit for consideration of appointment to Punjab Civil Services (Judicial Branch). Such writ petitions were allowed on 01.10.1996 by a Division Bench of this Court in a judgment delivered in CWP No.1044 of 1996. In pursuance of the direction of the Division Bench, names of 13 candidates i.e. from Sr.No.3 to 15 were forwarded to the High Court for entering the same in the High Court register maintained for the purpose of appointment vide communication dated 30.01.1997. All such candidates have joined earlier than the joining of the petitioner. Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.8044 of 2005 4
The petitioner submitted a representation on 28.05.2001 praying that his date of joining should be reckoned as 29.05.1996. It is the date on which, Ms. Harreet Kaur Chahal, whose name appears at Sr.No.22 of the General Category candidates originally recommended for appointment joined as Civil Judge. The petitioner claimed that he be assigned seniority after Shri Naval Kumar in the gradation list keeping in view his aggregate marks. In para 5 of the representation, the petitioner has averred to the following effect:
"5. .....As peer the record, last candidate who was given the appointment in the General category was Miss Harreet Kaur Chahal, who joined the post on 29.05.1996. As per the orders of the Hon'ble High Court, date of appointment of undersigned is to be reckoned as 29.05.1996 though the undersigned joined actually on 03.06.1998."
The argument of the petitioner is that in terms of Rule 8 of the Punjab Civil Services (Judicial Branch) Rules, 1951, the seniority has to be determined as per the merit prepared by the Public Service Commission. Since the petitioner was declared ineligible, his name does not find mention in the merit list finalized by the Public Service Commission, but keeping in view 572 aggregate marks obtained by the petitioner, he is required to be assigned seniority after Shri Naval Kumar, who has obtained 573 marks and above Shri Lalit Kumar Singla, who has obtained 564.50 marks. It is the said representation, which was declined vide order impugned in the present writ petition.
It is argued that the order of this Court in the earlier writ petition filed by the petitioner deals with only date of appointment and not Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.8044 of 2005 5 of seniority, therefore, the order passed is against the statutory rule of seniority.
On the other hand, it is pointed out that in the letter of appointment itself, it was ordered that the name of the petitioner be added after Shri Jaspinder Singh though the seniority was to be determined later on along with other candidates. The representation of the petitioner has been considered and he has been assigned seniority after the last General category candidate appointed in pursuance of the selection process in which petitioner was earlier declared unqualified. It is contended that the order of the High Court in the earlier writ petition filed by the petitioner specifically stipulate that the petitioner will be given appointment with effect from the date, the last candidate was given appointment in the General category. This will include all the candidates of General category in the same selection process. Thus, the name of the petitioner has been rightly placed after the last candidate of the General category i.e. Jaspinder Singh.
A perusal of the record shows that the petitioner was an unqualified candidate in the Gazette Notification published on 15.12.1995 (Annexure P-1). Though the writ petition filed qualified candidates was s decided subsequently to the writ petition filed by the present petitioner on 01.10.1996, but the fact remains that their names were recommended for entry in the High Court register on 30.01.1997, whereas the name of the petitioner was recommended for entering in the High Court register on 16.12.1997 that too after conducting viva voce. The petitioner was appointed later than the other 13 candidates. The assignment of seniority to Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.8044 of 2005 6 the petitioner is in terms of the order passed in the writ petition filed by him.
The petitioner cannot take any help from Rule 8 of the Rules, which deals with the determination of seniority on the basis of merit finalized by the Public Service Commission. The writ petition filed by the petitioner was allowed with specific direction that he shall be given appointment with effect from the date, the last candidate was given appointment in the General category. The merit as contemplated in Rule 8 of the Rules was not ordered to be adhered at the time of passing of the order in the writ petition filed by the petitioner. Therefore, the petitioner cannot claim seniority in terms of Rule 8 in view of the specific direction issued in a writ petition filed by him. The petitioner has never made any grievance of that part of the order, by which, the petitioner was ordered to be appointed as a last general category candidate.
It is no doubt correct that 13 General category candidates were appointed after the order was passed by this Court in the writ petition filed by the petitioner, but the fact remains that the petitioner was not even qualified to hold such post without undergoing process of interview. The final result was declared after the appointment of 13 candidates. It was only on finalization of viva voce, the merit of the petitioner could be determined. The 13 candidates were appointed from amongst the list of candidates, who have qualified but their names were not recommended though it was so required in terms of the judgment of the Supreme Court in Miss Neelima Shangla Vs. State of Haryana & others AIR 1987 SC 169. The name of the petitioner was recommended on 16.12.1997 and joined on 03.06.1998. Therefore, except that the order in the writ petition filed by Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.8044 of 2005 7 the petitioner is earlier in point of time, all other actions i.e. recommendation of his name and appointment is subsequent to joining of 13 general category candidates. In fact, the names of such candidates should have been entered in the High Court register without any intervention of Court. Thus, for an unwarranted action of the respondents, the names of the candidates, who have qualified, were not recommended. Such candidates would stand on a better footing than the petitioner, who has not qualified for the reason that he has not obtained 33% marks in the Punjabi language. The right in favour of the petitioner for appointment accrued, only after the Petitioner was subjected to interview in terms of the orders passed by the Division Bench of this Court on 27.03.1996. The petitioner has not initially qualified as he has not obtained qualifying 33% marks in Punjabi language. Even after the order of this Court, the petitioner could not seek appointment unless he is interviewed. After interview, his name has been recommended on 16.12.1997 and has been given seniority after the appointment of last General category candidate.
Therefore, the petitioner cannot claim any seniority after Shri Naval Kumar and before Shri Lalit Kumar Singla only on the basis of marks obtained in view of the specific order passed in the writ petition filed by him. The petitioner cannot claim any seniority over and above 13 candidates appointed, as not only their names were recommended in earlier point of time, but have actually joined earlier. The names of such candidates were not entered in the High Court register though it was a mandate of Supreme Court in Miss Neelima Shangla's case (supra) to make recommendations.
Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.8044 of 2005 8
We find that the decision of the respondents in assigning seniority to the petitioner below Shri Jaspinder Singh is legal and valid and in fact is reasonable and plausible view. This Court in exercise of judicial review will not substitute its decision, when there is no illegality or irregularity found in the order passed.
Consequently, we do not find any merit in the present writ petition. The same is dismissed.
(HEMANT GUPTA)
JUDGE
30.10.2013 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2013.11.07 13:22
I attest to the accuracy and
integrity of this document
Chandigarh