Punjab-Haryana High Court
Varun Kumar vs Haryana Staff Selection Commissioner ... on 17 July, 2013
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CWP No. 15403 of 2011 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 15403 of 2011
Date of Decision: July 17, 2013
Varun Kumar
.....Petitioner
Vs.
Haryana Staff Selection Commissioner and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr. Madan Gopal Gupta, Advocate
for the petitioner.
Mr.R.D. Sharma, DAG, Haryana.
Mr.Mohinsh Sharma, Advocate for
Mr.Sudhir Hooda, Advocate.
-.-
M.M.S. BEDI, J. (ORAL)
Petitioner has filed this writ petition under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of mandamus directing the respondents to issue appointment letter to the petitioner for the post of Junior Engineer (Electrical) General Category which was advertised as per advertisement No. 4 of 2008 (annexure P-1) and waiting list (annexure P-2/B). The petitioner claims that respondent Gupta Sanjay 2013.08.23 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 15403 of 2011 [2] No.1 Haryana State Staff Selection Commission had issued an advertisement dated 8.7.2008 for appointment to various posts in different Departments. The petitioner applied for the post of Junior Engineer (Electrical). As per the advertisement, there were total 160 vacancies out of which 70 were meant for general category and rests for other categories.
Respondent No.1 after completion of the process of selection forwarded the selection list for the post of Junior Engineer (Electrical) against the abovesaid advertisement. Copy of the selection list dated August 11, 2010 has been appended with the petition as annexure P-2. Annexure P-2/A is the recommendation list of the candidates for the post of Junior Engineers (Electrical). Annexure P-2 is in fact a letter sent by the Secretary of Haryana Staff Selection Commission, Panchkula, to the Managing Director of Uttar Haryana Bijli Vitran Nigam Limited, Panchkula, hereinafter referred to as "UHBVNL". The said letter was accompanied by a list of 58 selected candidates whereas annexure P-2/B is the recommendation list of candidates kept in waiting list for the post of Junior Engineers (Electrical) general category. Similar communication was sent to respondent No.3 by respondent No.1 vide letter dated August 11, 2010 annexure P-3, giving all the particulars of the selected candidates in the main selection list for Dakshin Haryana Bijli Vitran Nigam Limited (for short "DHBVNL") in the order of merit. The petitioner's name was mentioned in the waiting list at Sr.No.4 in annexure P-2/B. From the waiting list annexure P-2/B, two candidates, namely, Aman Kumar and Gupta Sanjay 2013.08.23 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 15403 of 2011 [3] Gajraj shown at Sr. No.1 and 2 were appointed on March 11, 2011 vide annexure P-4 and third candidate shown at serial No.3 in annexure P 2/B was appointed on June 6, 2012 vide annexure P-5 in UHBVNL, as three candidates from original list of general category did not join. One candidate Nitin Garg in the main list of general category at Sr. No.13 in annexure P-3/A joined on September 11, 2010 but resigned on the same very day. One vacancy of Junior Engineer (Electrical) of general category out of 70 was lying vacant due to resignation submitted by Nitin Garg which was accepted as he was working somewhere else on a better post.
In view of the above circumstances, the petitioner claims that he was on the top of the waiting list and requested the respondents for issuance of appointment letter. The representation submitted by the petitioner in the office of respondent No.3 was forwarded to respondent No.1 for further necessary action vide letter dated December 22, 2010 (P-6). The petitioner was not being appointed, his case was also sent by respondent No.3 to respondent No.2 for consideration vide annexure P-8 but no action was taken.
The stand of respondent No.1 in the reply filed is to the effect that the name of petitioner was placed in the waiting list at Sr. No.4, annexure P-2/B of the general category and that further action to appoint him as per rules and instructions is required to be taken by UHBVNL being the appropriate authority in the matter. It is not disputed that as per Government instructions dated October 7, 1998 (P-9), the appointments Gupta Sanjay 2013.08.23 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 15403 of 2011 [4] from the waiting list are 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 remain unfilled for any other reason. The stand of respondents No.2 and 3 is that though one vacancy of Junior Engineer (Electrical) of the general category became available due to resignation of Nitin Garg which was accepted, the representation submitted by the petitioner in the concerned office of DHBVNL was duly forwarded to the Haryana Staff Selection Commission vide memo dated December 22, 2010, annexure P-6 for clarification and taking further necessary action. The case of the petitioner was also sent to the Managing Director, UHBVNL, Panchkula vide office letter dated June 20, 2011 (P-8) for taking decision in the matter in terms of Chief Secretary to Government of Haryana letter dated October 7, 1998. Reliance was placed on the Government instructions dated August 3, 2009 passed on the basis of the judgment dated November 18, 2008 of the Apex Court in Civil Appeal No. 6690of 2008, reported as (2009) 1 SCC 386, deciding that the selection/ waiting list shall expire as soon as the number of posts advertised are filled up. Once the number of vacancies advertised by Haryana Staff Selection Commission has been filled or validity of selection list or waiting list expired whichever event was earlier in point of time, the waiting list shall be deemed to be inoperative. Any vacancy arising thereafter due to any reason cannot be filled from relevant waiting list. Copy of the instructions has been placed on record as annexure R-3/7.
Gupta Sanjay 2013.08.23 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 15403 of 2011 [5]
Learned counsel for the petitioner has contended that the vested right had accrued to the petitioner to be appointed after having been selected and kept in waiting list, since he was at No.4 in the waiting list. Three persons above him having been absorbed, third having not joined and one candidate Nitin Garg in the main list having resigned on September 10, 2010, the petitioner became entitled to be appointed. But after resignation of Nitin Garg on September 10, 2010, the appointment letter was not issued to the petitioner.
Counsel for the respondents submits that the life of waiting list is one year and that the petitioner cannot be given appointment after the expiry of one year.
I have heard learned counsel for the petitioner as well as counsel for the respondents. The right of wait-listed candidate to claim appointment is linked with the selection or examination for which it is prepared. Reasons for it is that whenever selection is held, except when it is for single post, it is normally prepared by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. In the present case, the selections were held by the Haryana Staff Selection Commission and the lists were prepared under the rules to ensure that the working of the office does not suffer if selected candidates do not join for one reason or the other or the next selection or examination is not held soon. A candidate in the Gupta Sanjay 2013.08.23 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 15403 of 2011 [6] waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. In the present case, the vacancy had arisen due to resignation of Nitan Garg on September 10, 2010. As per the order of merit in the waiting list it was petitioner who deserved to be appointed against the vacancy accrued on account of resignation of Nitin Garg. The petitioner was eligible and qualified candidate, in the order of merit, though he could not find a place in main select list but he found a place at No.4 in the waiting list. Candidates at No.1 and 2 in the waiting list have been absorbed against the vacancies arisen on account of non-joining of the persons from selected list. Sr. No.3 in the waiting list had not joined. Vacancy had arisen on September 10, 2010. There was no reason for respondents No.2 and 3 not to give appointment letter to the petitioner specifically when the stand of respondent No.1 Haryana Staff Selection Commission in the written statement is that action to appoint petitioner was required to be taken by UHBVNL being the appropriate authority in the matter. The Government instructions dated October 7, 1998 (P-9) have been admitted by the respondents No.2 and 3 which lay down that the appointment from the waiting list are 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 remain unfilled for any other reason. The selection list was issued on August 11, 2010, vide forwarding letter annexure P-2. The post became available on September 10, 2010 within a period of one month. The Gupta Sanjay 2013.08.23 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 15403 of 2011 [7] petitioner had submitted request for his selection which was forwarded on December 22, 2010 vide annexure P-6 for clarification to respondent No.1 by respondents No. 3. The petitioner had raised a claim with the competent authority - respondents No.2 and 3 but it was unnecessarily forwarded vide letter dated December 22, 2010. The law that the life of waiting list is valid for one year does not apply to the facts of the present case, as the petitioner had immediately within a period of one month had raised his claim to the vacancy which became available w.e.f. September 10, 2010. Similarly circumstanced persons in the waiting list had been given appointment as such there was no reason for denying the said relief to the petitioner. The action of respondents No.2 and 3 is thus arbitrary, improper, discriminatory and violative of Article 14 of the Constitution of India denying fair opportunity to the petitioner to be appointed on merits. The preparation of waiting list in the present case cannot be considered to be a spinning ground for corruption and denial of constitutional right of equality to eligible candidate awaiting recruitment. In Varinder Singh Hooda Vs. State of Haryana, AIR 1999 SC 1701 and A.P. Aggarwal Vs. Government of NCT of Delhi, AIR 2000 SC 205, it has been held that it is not open to the Government to ignore panel which has already been approved and accepted by it and resort to a fresh selection process without giving any proper reason for resorting to the same as the same would be hit by the rule against arbitrariness violating the article 14 of the Constitution of India. Gupta Sanjay 2013.08.23 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 15403 of 2011 [8]
Learned counsel for the respondents has placed reliance on Satish Kumar Vs. The Vice Chancellor, Kurukshetra University, a judgment of this Court, reported in 1998 (1) SCT 138 to contend that mere selection does not give an indefeasible right of appointment and that once the vacancies advertised are filled up, the waiting list becomes extinct and the select list stands exhausted.
Ratio of the said judgment is not applicable to the facts of the present case because in the present case the petitioner was selected on merits and was put at Sr. No.4 in the waiting list. The waiting list is not in violation of any rules. Vacancy having arisen within a period of one month was required to be filled from available candidate in the waiting list.
In view of the above circumstances, the petition is allowed and it is directed that the petitioner will be appointed against the post of Junior Engineer (Electrical) of general category for which he was selected pursuant to advertisement No.4 of 2008 in the waiting list as the petitioner had become entitled to be appointed the day Nitin Garg, a selected candidate having resigned from the job on September 10, 2010 and the persons above the petitioner having been given appointment in June 2011. The case of the petitioner had been wrongly sent to the Haryana Staff Selection Commission for fresh recommendation. The action of the respondents in denying appointment to the petitioner is declared to be unreasonable, discriminatory, violative of Articles 14 and 16 of the Constitution of India. Gupta Sanjay 2013.08.23 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 15403 of 2011 [9] It is directed that appointment letter will be issued to the petitioner within a period of one month after the receipt of a certified copy of this order.
July 17, 2013 (M.M.S.BEDI)
sanjay JUDGE
Gupta Sanjay
2013.08.23 13:55
I attest to the accuracy and
integrity of this document
High Court Chandigarh