Punjab-Haryana High Court
State Of Haryana Through Secy. ... vs Naresh Kumar on 1 December, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
LPA-1165-2017 (O&M)
State of Haryana and others
... Appellant (s)
Versus
Naresh Kumar
... Respondent (s)
(2) LPA-1166-2017 (O&M)
State of Haryana and others
... Appellant (s)
Versus
Pushpa Devi and others
... Respondent (s)
(3) LPA-1191-2017
State of Haryana and others
... Appellant (s)
Versus
Smt. Sheelwanti and others
... Respondent (s)
(4) CWP-24685-2014
Phool Kumar ... Petitioner (s)
Versus
State of Haryana and others
... Respondent (s)
(5) CWP-2619-2015
Anil Kumar ... Petitioner (s)
Versus
State of Haryana and others
... Respondent (s)
Reserved on : 22.11.2022
Pronounced on : 01.12.2022
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
HON'BLE MS.JUSTICE HARPREET KAUR JEEWAN
Present: Mr. Hitesh Pandit, Additional Advocate General, Haryana
for the appellants in LPA Nos.1165, 1166 & 1191 of 2017 &
for the respondents in CWP Nos.24685 of 2014 &
CWP No.2619 of 2015.
Mr. Amit Dhanda, Advocate for
Mr. Jasbir Mor, Advocate for respondent Nos. 1 to 5
in LPA No.1165 of 2017.
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LPA Nos.1165, 1166 & 1191 of 2017 and CWP No.24685 of 2014 &
CWP No.2619 of 2015 2
Mr. Anurag Goyal, Advocate for
Mr. Karamveer Singh Banyana, Advocate
for the respondents in LPA Nos.1166 & 1191 of 2017.
Mr. Shivam Malik, Advocate for
Mrs. Santosh Malik, Advocate
for the petitioner in CWP-24685-2014.
Mr. Neeraj Kumar, Advocate
for the petitioner in CWP-2619-2015.
****
G.S. Sandhawalia, J.
Present order shall dispose off 5 cases i.e. LPA Nos.1165,
1166 & 1191 of 2017 and CWP No.24685 of 2014 & CWP No.2619 of
2015.
2. LPA Nos.1165, 1166 & 1191 of 2017 raise the issue of
consideration of the judgment of the learned Single Judge wherein he
decided three writ petitions lead case of which was CWP No.21687 of
2015 'Pushpa Devi and others Vs. State of Haryana and others'. Vide
the order under consideration dated 24.01.2017 the learned Single Judge
set aside the order dated 01.05.2015 (Annexure P-11), vide which the writ
petitioners claim for appointment to the post of Social Studies Masters had
been rejected. Resultantly, directions were issued to issue appointment
letters to the writ petitioners within a period of three months and if the
respondents find difficulty in respect to the vacancies concerned being not
available they were to create supernumerary as a one time measure and the
appointment orders were to be issued with notional benefits.
3. In CWP No.24685 of 2014 'Phool Kumar Vs. State of
Haryana and others' and CWP No.2619 of 2015 'Anil Kumar Vs. State
of Haryana and others' the petitioners claim similar relief of
appointment to the post of Social Studies Masters and challenge has also
raised to the speaking order dated 14.11.2014, whereby their claim was
2 of 13
LPA Nos.1165, 1166 & 1191 of 2017 and CWP No.24685 of 2014 &
rejected on the ground that there was one year validity of the select list, in
view of the observations made on 03.11.2014 in COCP No.2511 of 2013
'Phool Kumar Vs. Chander Shekhar'. The said cases have been tagged
in view of the order passed since reliance was being placed on the
judgment already passed.
4. The learned Single Judge while allowing the writ petitions
came to the conclusion that the writ petitioners were in the waiting list and
the ones' who were reflected in the main list did not report for duty within
15 days and therefore, the wait list being in operation for a period of one
year, the official respondents had time to fill up the 35 vacancies between
24.11.2012 to 05.06.2013. On account of lack of reasons for not operating
the wait list, the object of preparing the select list had been defeated and,
therefore, 35 candidates had been denied the right to seek appointment. It
was also noticed that ones who had not reported for duty had been issued
show cause notice for cancellation of appointment to the post of Social
Studies Masters on 12.08.2014 (Annexure P-10).
5. The defence as such that the posts had become surplus was
only as per the data which was available on 10.03.2015 and not regarding
the vacancies of 2009 advertisement. Therefore, the reasoning given that
on account of the Right of Children to Free & Compulsory Education,
2009 coming into force, the writ petitioners were not liable to be
accommodated and were held to be not acceptable and it was only a lame
excuse for not appointing the writ petitioners.
6. We are of the considered opinion that the learned Single
Judge was well justified in coming to the said conclusion and the State in
its usual manner has tried to defend its lack of action and stonewall the
rights of persons who underwent the recruitment process and were
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LPA Nos.1165, 1166 & 1191 of 2017 and CWP No.24685 of 2014 &
successful to the extent of having got their names on the waiting list upto
Sr. No.1. On account of their inaction and for lack of justifiable reasons,
we are of the considered opinion that the argument raised by the State that
there is only a right of consideration and a right of appointment while
relying upon the judgment passed in Shankarsan Dash Vs. Union of
India, (1991) 3 SCC 47 rather is against them in the facts and
circumstances. Relevant observations of the said judgment reads as under:-
"7. It is not correct to say that if a number of vacancies are
notified for appointment and adequate number of candidates are
found fit, the successful candidates acquire an indefeasible right to
be appointed which cannot be legitimately denied. Ordinarily the
notification merely amounts to an invitation to qualified
candidates to apply for recruitment and on their selection they do
not acquire any right to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal duty to fill up all or
any of the vacancies. However, it does not mean that the State has
the licence of acting in an arbitrary manner. The decision not to fill
up the vacancies has to be taken bona fide for appropriate reasons.
And if the vacancies or any of them are filled up, the State is
bound to respect the comparative merit of the candidates, as
reflected at the recruitment test, and no discrimination can be
permitted. This correct position has been consistently followed by
this Court, and we do not find any discordant note in the decisions
in State of Haryana v. Subhash Chander Marwaha and Others,
[1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and
Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State
of Punjab and Others, [1985] 1 SCR 899."
7. Thus, what has to be seen from the facts and circumstances
whether the State has acted in an arbitrary manner and the decision not to
fill up the vacancies is not with the bonafide or appropriate reason.
Therefore, on that account the learned Single Judge was well justified in
coming to the conclusion that the right of appointments has to be
considered at the time wait list was in operation and not a subsequent
4 of 13
LPA Nos.1165, 1166 & 1191 of 2017 and CWP No.24685 of 2014 &
event which is not sought to be put up which, which also in the facts and
circumstances we feel is not justified, since a contrary stand has been
taken, which would be clear from the factual aspect which we now shall
proceed to discuss.
8. It is not disputed that the advertisement (Annexure P-1) is
dated 13.08.2019 bearing No.4 of 2009, whereby 373 posts of Social
Studies Masters were sought to be filled up. The result was declared on
31.05.2012 (Annexure P-3) on the basis of the interviews held in the
month of May, 2011 by the Haryana Staff Selection Commission (HSSC).
Resultantly on 06.06.2012 (Annexure R-1) the HSSC had recommended
the candidates for appointment to the post of Social Studies Masters,
wherein it was specifically mentioned that the candidates selected in the
waiting list were not to be considered against fresh vacancies as validity
period of the waiting list was for one year from the date of issuance of
letter. It was for the State Government to verify the documents pertaining
to the qualifications, experience, age and caste/category etc and their
antecedents before issuance of appointment orders.
9. As per the affidavit of the Additional Director
Administration-cum-Additional Secretary to Government of Haryana filed,
it was averred that letter dated 08.11.2012 was addressed to all the newly
selected Social Studies Masters directing them to report to different
District Institutes of Education and Training (DIETs) and a public notice
was also issued on 09.11.2012. 339 candidates appeared for counseling
and appointment orders alongwith place of posting were displayed on the
department website and 33 candidates who had been called for counseling
through registered letter dated 19.02.2013 were asked to appear on
13.03.2013. When they did not appear for counseling, the appointment
5 of 13
LPA Nos.1165, 1166 & 1191 of 2017 and CWP No.24685 of 2014 &
orders were issued to them on 15.03.2013 on account of the non-joining
information was received that 35 candidates had not joined their duties, the
details of which are given as under:-
Category Male Female
SC 14 11
10. It is, thus, the case of the respondents that due to the non-
joining of the 35 candidates on 03.03.2014 after seeking extension of the
validity of the waiting list since the recommendations were more than one
year old, the relaxation was sought from the Chief Secretary for examining
the validity of the waiting list. The request was made on 06.05.2014 and
the Chief Secretary, Haryana had two queries and sent the file back on
21.05.2014. Thereafter, in pursuance of the instructions dated 08.09.1972
show cause notices were issued to 35 non joined candidates on 12.08.2014
(Annexure P-10), but none of them appeared and another opportunity was
given before candidatures were to be cancelled. Only three candidates
from the non joined candidates appeared on 29.08.2014 and requested for
joining. Resultantly on 13.11.2014 the opinion was given from the Chief
Secretary that since there was one year validity period of the main list as
well as the waiting list, the same had expired on 05.06.2013.
11. Another defence which was taken and which has also been
argued by the State counsel is regarding the fact that similarly situated
Maths Masters writ petition bearing CWP No.19064 of 2013 'Karambir
Singh and another Vs. State of Haryana and another' had been allowed
6 of 13
LPA Nos.1165, 1166 & 1191 of 2017 and CWP No.24685 of 2014 &
on 04.02.2014 and the State Government was successful in LPA No.2024
of 2014 on the same grounds that there was surplus manpower. The said
stance as noticed regarding the surplus of manpower had been put forth by
the Director General Elementary Education vide order dated 01.05.2015 in
pursuance of directions issued wherein Pushpa Devi and other had
approached this Court in CWP No.24963 of 2013 seeking right of
consideration on account of being on the wait list and posts remaining
vacant due to non-joining of candidates. Resultantly, directions were
issued to take a decision on the said issue and the said officer came to the
conclusion that since two existing departments i.e. Primary Education
Department (Class 1st to 5th) and Secondary Education Department (Class
6th to 10+2) were converted into the Elementary Education Department
(Class 1st to 8th) and the Secondary Education Department (Class 9th to
10+2) vide notification dated 22.09.2011. Therefore, there was a decrease
in the requirement of Social Studies Masters as on 10.03.2015 and there
were 7245 surplus masters, which was one of the reasons apart from the
fact that the validity list had elapsed.
12. Interestingly the same officer six months earlier vide order
dated 14.11.2014 (Annexure P-9) which has been appended in
CWP No.24685 of 2014 'Phool Kumar Vs. State of Haryana and
others' while complying the order passed in CWP No.11414 of 2013
'Phool Kumar Vs. State of Haryana and another' dated 24.05.2013
which was also in the same terms to take a decision on the representations
regarding the filling up of the posts came to the conclusion that on account
of Chief Secretary's communication dated 13.11.2014 and the wait list
being valid for one year had rejected the claim for appointment of Phool
Kumar who was at Sr. No.1 in the wait list. It is, thus, apparent that in the
7 of 13
LPA Nos.1165, 1166 & 1191 of 2017 and CWP No.24685 of 2014 &
said order passed no defence was ever taken that the posts had become
surplus, which was done in the subsequent order dated 01.05.2015 and
which is also in reference to data of the year 2015, whereas the right of the
writ petitioners had crystallized in November, 2012.
13. Thus, we are of the considered opinion that the reasons which
have now been given do not seem to be germane to the controversy and if
that was so at the first instance while passing the speaking order on
14.11.2014 the same officer would have reasoning as mentioned earlier.
The reasoning is for the mere purpose that the State Government had to get
over its lack of inaction and deny appointments to the candidates who
were higher in the wait list. It is to be noticed no justifiable reasons were
given in the written statement as to why on account of the non-joining
within the prescribed period of 15 days as noticed by the learned Single
Judge when conditional appointment orders were issued on 12.11.2012 the
wait list was not operated, as the candidates did not join. It is on account
of the negligence and inaction of the State Government/appellants which
has led to the expiry of the wait list. Though the person on the wait list had
been agitating and clamoring for their rights in as much as they filed
representations and served legal notices which would be clear from
communication dated 07.06.2012 (Annexure P-7) wherein Naresh Kumar
had put forth his case that he is at Sr. No.1 in the wait list and if candidates
do not join he should be given a chance. Thus, the observations made in
Shankarsan Dash (supra) as reproduced above go on to show the
arbitrary action of the State has come forth.
14. Another aspect which is to be noticed that one fails to
understand why 35 candidates were being given the latitude to join after
the stipulated period as per the appointment orders and show cause notice
8 of 13
LPA Nos.1165, 1166 & 1191 of 2017 and CWP No.24685 of 2014 &
had been issued to them as noticed on 12.08.2014 even after the validity
has expired on 05.06.2013. The said letter mentioned that appointment
can be offered to the other candidates who were standing in the waiting list
and there was a proposal to cancel their appointment. Relevant portion of
the letter dated 12.-08.2014 reads as under:-
"Now, it has been decided by competent Authority
to cancel your candidature or appointment letter immediately so
that appointment can be offered to other candidates who were
standing in waiting list according to their merit. Now office is in
the process of cancellation/termination of your candidature
/appointment letter.
But before cancellation of candidature, an
opportunity of being heard is being provided to you all to show
cause why appointment letter/candidature should not be cancelled.
Hence, your are required to appear before Additional Director
Administration Elementary at 10:30AM on 25.08.2014 in person
and submit your version in writing if any failing which it will be
presumed that you are not interested to say anything and your
candidature/appointment order will be cancelled accordingly."
Sd/-
Superintendent HRM-I
O/o Director Elementary Education
Haryana, Panchkula
Dated, Panchkula the 12.08.2014"
15. It is also to be noticed that for the same advertisement in
question appointment order have been issued on 17.11.2016 to one Geeta
Devi on account of the fact that order passed in LPA No.1563 of 2012
'Geeta Devi Vs. State of Haryana and others' arising out of CWP
No.16710 of 2012 had to be complied with. It is, thus, apparent that even
on 17.11.2016 appointments were being made against the said
advertisement No.4 of 2009 for the post of Social Studies Masters after the
opinion had been given on 13.11.2014 by the office of the Chief Secretary.
Relevant portion of the order dated 17.11.2016 reads as under:-
9 of 13
LPA Nos.1165, 1166 & 1191 of 2017 and CWP No.24685 of 2014 &
"OFFICE OF THE DIRECTOR ELEMENTARY EDUCATION
HARYANA, PANCHKULA
Order No. 17/173-2012 HRM-1 (1) Dated, Panchkula 17.11.2016
In pursuance of judgment dated 21.01.2014 of Hon'ble
Punjab & Haryana High Court, Chandigarh in LPA No. 1563 of
2012 in CWP No. 16710 of 2012 titled as Geeta Devi V/S State of
Haryana and others, the claim of the Appellant/Petitioner i.e Geeta
Devi for the post of S.S. Mistress under Ex-Serviceman (General)
(Female) category has been considered in compliance of this
judgment (Supra) appointment letter is issued to petitioner i.e
Geeta Devi, on the basis of recommendations received from the
Haryana Staff Selection Commission No. HSSC/Confd./
Recomm./2012/332 dated 06.06.2012 against advt.4/2009 category
no.5 for appointment in Haryana School Education (Group-C)
State Cadre Service Rules-2012 on the post of S.S. Mistress in the
scale of 9300-34800+GP 4600/-plus other allowances as
sanctioned by the Haryana Govt. from time to time on the
following terms and conditions.
Sr. No. Employee Merit No. Name & Place of Posting Remarks
ID No. Address
With Category
1 098397 143 (DFF, Geeta Devi GHS Silothi A/V
General) D/o Sh. Ram (4667) Distt.
Kumar, Jhajjar
Village
Girawar, PO
Jondhi, Distt.
Jhajjar
16. In the present bunch of cases as noticed the writ petitioners
filed writ petitions in the year 2015 agitating for their grievances after the
impugned order had been passed on 01.05.2015 (Annexure P-11) in
pursuance of the order dated 14.11.2013 CWP No.24963 of 2013 'Pushpa
Devi and others Vs. State of Haryana and others' (Annexure P-10) and,
therefore, the writ petitioners/respondents have been agitating for redressal
of their grievances and on account of the inaction of the State have been
left out from the zone of appointment, though there were 35 clear
10 of 13
LPA Nos.1165, 1166 & 1191 of 2017 and CWP No.24685 of 2014 &
vacancies available as per the pleadings and as argued by the State
counsel.
17. The ground raised on the issue of parity, to be fair to
Mr. Pandit that the judgment passed in LPA No.2024 of 2014 wherein for
the same advertisement the directions issued for the post of Maths Masters
were set aside, which was on account of the fact that after restructuring
posts were reduced to 2144 and there were surplus masters and no junior
had been given appointment. As noticed from the record above, it
transpires that the stand of the State regarding surplus posts apparently has
been held to be not tenable in view of the contradictory speaking orders
passed and on account of the fact that on an earlier occasion the said stand
had never been taken. Therefore, the judgment relied upon by the State is
not applicable to the facts and circumstances, as this fact could not be
demonstrated before the Coordinate Bench at that point of time regarding
the Maths Master.
18. In Ritu Vs. State of Haryana and others' 2013 (3) SCT 281
while allowing the LPA, wherein the claim for appointment to the post of
Hindi Teacher had been rejected, it was held that inaction on the part of
the State Government within a period of 15 days as per stipulation
contained in the offer of appointment itself had clearly defeated the very
objective of waiting/panel list and on account of lack of promptitude the
appellant was affected. The State did not act within the validity of one
year and therefore, the action of the appointing authority was held to be
suffering from the vice of arbitrariness and could not be sustained. The
said principles are, thus, directly applicable to the facts and circumstances
of the present case, which read as under:-
"11. Adverting back to the facts of the present case, it was
obligatory upon the Appointing Authority to have acted promptly
11 of 13
LPA Nos.1165, 1166 & 1191 of 2017 and CWP No.24685 of 2014 &
as also within a reasonable time-frame upon a selected candidate
in the original select list not having accepted the offer of
appointment. Even though, there would be no quarrel as regards
the proposition that mere impanelment of the name of the
appellant in the waiting/panel list did not vest in her a right to be
appointed, but equally it will not give the State Government a
license to act arbitrarily. Nothing has been brought on record that
would justify the inaction on the part of the Appointing Authority
for not having cancelled the offer of appointment made in favour
of Smt.Manju Rani within the stipulated time-frame and having
made the offer of appointment of the post in question to the
candidate next in order of merit. Suffice it to observe that we are
not seized of a claim of appointment over and above the number of
vacancies advertised but only as regards a claim of a duly selected
candidate in relation to the original five advertised vacancies
pertaining to the reserved ex-Servicemen (General) Female
category. The inescapable conclusion is that had the Appointing
Authority acted with a sense of promptitude, the right of the
appellant would have crystalized well within the validity period of
one year of the waiting/panel list with effect from the date of
receipt of the recommendations i.e. 27.1.2010. Action of the
Appointing Authority suffers from the vice of arbitrariness and, as
such, cannot sustain.
12. Even otherwise, the very objective of preparing a
waiting/panel list and for such list to be kept operative for a
specific period is that if a vacancy arises during such period for
any reason, then the whole process of selection may not have to be
repeated and the process of selection already having been
undertaken would hold good for such period. A reference in this
regard can usefully be made to the judgments of this Court
inAjmer Singh v. State of Haryana and others, 1997(1) CLJ
(Service) 86 and Raghbir Chand Sharma v. State of Punjab, 1992
(1) RSJ 195.
13. In the present case, the inaction on the part of the State
Government in not having cancelled the offer of appointment
made to Smt.Manju Rani within a period of 15 days as per
stipulation contained in the offer of appointment itself has clearly
defeated the very objective for which the waiting/panel list had
been prepared in which the name of the appellant duly figured.
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LPA Nos.1165, 1166 & 1191 of 2017 and CWP No.24685 of 2014 &
14. For the reasons recorded above, we allow the instant
appeal and set aside the impugned judgment dated 6.10.2012
passed by the learned Single Judge in Civil Writ Petition No.5980
of 2011. We further direct that the respondent-Department shall
issue appointment letter to the appellant for the post of Hindi
Teacher within a period of 30 days from the date of passing of this
judgment. There shall, however, be no order as to costs.
Appeal allowed."
19. In such circumstances, we are of the considered opinion that
the order of the learned Single Judge is not liable to be interfered with.
Resultantly, LPA Nos.1165, 1166 & 1191 of 2017 which are directed
against the order of the learned Single Judge dated 24.01.2017 are
dismissed, whereas CWP No.24685 of 2014 & CWP No.2619 of 2015 are
allowed. All pending civil miscellaneous application(s), if any, also stand
disposed of. The State shall issue appointment letters to the writ
petitioners in both the sets, as directed by the learned Single Judge. The
said exercise be carried out within a period of 2 months from the date of
receipt of certified copy of this order.
20. It is, however, made clear that the successful writ petitioners
will only get notional benefits from the date of the last similarly selected
candidate of the same selection process was appointed and they will not be
entitled for actual monetary benefits, provided they fulfill all other
requisites.
(G.S. SANDHAWALIA)
JUDGE
(HARPREET KAUR JEEWAN)
01.12.2022 JUDGE
Naveen
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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