Punjab-Haryana High Court
Vijay Kumar Yadav vs State Of Haryana And Others on 8 March, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA-564-2021 (O&M)
Vijay Kumar Yadav
... Appellant
Versus
State of Haryana and others
... Respondents
(2)
LPA-571-2021(O&M)
Gulab Singh
... Appellant
Versus
State of Haryana and others
... Respondents
(3)
LPA-655-2021 (O&M)
Ravinder Singh
... Appellant
Versus
State of Haryana and others
... Respondents
(4)
LPA-737-2021(O&M)
Dinesh Singh
... Appellant
Versus
State of Haryana and others
... Respondents
Reserved on : 10.02.2022
Pronounced on: 08.03.2022
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
HON'BLE MR.JUSTICE VIKAS SURI
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LPA Nos.564, 571, 655, and 737 of 2021 (O&M) -2-
Present: Mr. R.S. Kalra, Advocate for the appellants
in LPA Nos.564, 571 and 655 of 2021.
Mr. Sunil K. Nehra, Advocate for the appellant
in LPA No.737 of 2021.
Mr. Hitesh Pandit, Addl. AG, Haryana.
Mr. Govind Tanwar, Advocate for
Mr. Kanwal Goyal, Advocate for respondent-HPSC
in LPA-564 & 737-2021.
Ms. Harpriya Khaneka, Advocate for respondent-HPSC
in LPA-571 & 655-2021.
Mr. Vijay Singh Ahlawat, Advocate
for respondent No.4 in LPA-564-2021.
Mr. Vishal Nehra, Advocate for respondent No.5
in LPA-564-2021.
Mr. D.S. Patwalia, Senior Advocate with
Mr. Gauravjit Singh Patwalia, Advocate
for respondent No.6 in LPA-564-2021.
G.S. Sandhawalia, J.
The present judgment shall dispose of above said four
appeals i.e. LPA Nos.564, 571, 655, and 737 of 2021, since they all
arise out of a common judgment dated 23.04.2021.
2. The writ petitions have been dismissed by coming to the
conclusion that Rule 9 (1) (a) (iii) of the Haryana Civil Service
(Executive Branch) Rules, 2008 (hereinafter referred to as the '2008
Rules') provides that the employees who are not facing disciplinary
proceedings and against whom action was not being contemplated
and had a clean slate on the date of consideration, would only be
eligible for being considered for appointment to the post of Haryana
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Civil Services (Executive Branch) [hereinafter referred to as the
'HCS (EB)'] from the source of District Revenue Officers
(DROs)/Tehsildars. The cut-off-date for consideration which was
initially 01.11.2018 was treated to be as 12.07.2019 by the learned
Single Judge by noting that a list of 16 candidates was sent on the
said date and the said date has to be taken the cut-off-date for
determining of the eligibility. Keeping in view the facts emanating
from CWP No.24538-2019 'Vijay Kumar Yadav Vs. State of
Haryana and others' the same was treated as a lead case.
3. It was noticed that there were office notes that the
Government was treating the petitioner ineligible, since disciplinary
proceedings were contemplated against him on 30.08.2019
(Annexure P-16). Though the disciplinary action on the basis of the
CAG Report had been dropped on 11.12.2019 which was after the
cut-off-date.
4. An argument had also been raised which has also been
stressed upon before us that two candidates Dheeraj Chahal and Anil
Kumar Doon were also similarly placed whose names had been sent.
Therefore, keeping in view the principle of equality enshrined under
Article 14, the petitioner should be considered eligible, considering
the fact that he had been allowed to provisionally appear on the basis
of the interim orders passed in his favour. The fact that two
vacancies still existed and he had made the cut on merits, as per the
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result which had been produced in a sealed cover, which showed he
had secured 74.25 marks was sought to be highlighted. The said
argument had been rejected by the learned Single Judge on the
ground that no relief had been sought by the writ petitioner on that
ground, apart from which the learned Single Judge had also relied
upon the representation made by the petitioner himself dated
27.08.2019 (Annexure P-15) that name of Dheeraj Chahal had
already been excluded. The official noting dated 03.09.2019 in
favour of Anil Kumar Doon and Dheeraj Chahal showed that they
had not registered the sale deeds in question and, thus, they were
excluded from the list of persons against whom disciplinary
proceedings were pending. Accordingly, no proceedings being
contemplated against them, the issue of discrimination as such was
not further gone into. The judgment of the Apex Court passed in
'Union of India Vs. K.V. Jankirarman', (1991) 4 SCC 109 was
distinguished as the issue was not regarding pendency of
disciplinary proceedings, but regarding pendency thereof. The said
Rule 9 (1) (a) (iii) having not been challenged and not being shown
to be illegal in any manner, the judgment thus relied upon was
distinguished and petitioners were held to be not eligible on the date
of consideration.
Arguments of counsels:
5. Mr. R.S. Kalra, counsel appearing in LPA Nos.564, 571
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and 655 of 2021 has vehemently tried to show that the judgment of
the learned Single Judge was not sustainable, while referring to the
noting dated 03/05.09.2019 (Annexure A-2) to show that the matter
was still pending consideration before the concerned authority and
had to be put up before the Revenue Minister and Chief Minister for
passing appropriate orders. In spite of that the name of the said
persons had been sent in the list on 19.08.2019 by the meeting of the
Selection Committee held on 13.08.2019. It is submitted that the
decision was only taken on 02.12.2019 (Annexure P-18) by the
Revenue Minister and one Gulab Singh's (the writ petitioner in
CWP No.25000 of 2019) representation had been accepted, whereas
the case of Vijay Kumar Yadav as such was sent to the Chief
Minister. Eventually a decision was taken on 02.12.2019 and the
formal letter was only issued on 11.12.2019 (Annexure P-20) and
being after the cut-off-date, it had caused prejudice to the appellants.
6. It was, accordingly, argued that once the cut-off-date
was 12.07.2019 and there was no charge-sheet against the writ
petitioner till then and only on 26.08.2019 (Annexure P-13) notice
had been issued to him regarding registering the sale deeds for
deficiency of stamp duty and he had given his reply on 27.08.2019
(Annexure P-15). Therefore, keeping in view the law laid down in
K.V. Jankirarman's case (supra), that only on account of memo
issued he could not be kept out from consideration to the post of
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HCS (EB). Reliance was placed upon the proposal dated 30.08.2019
(Annexure P-16), whereby while considering him not eligible, one
Smt. Meetu Dhankhar who was facing charge-sheet on 12.07.2019
and whose charge-sheet was only dropped on 22.08.2019 had been
considered eligible as such and her name was forwarded to the Chief
Secretary alongwith 11 other candidates.
7. The stand of the State in the written statement filed in
the writ petition was that a draft charge-sheet had been called from
the Deputy Commissioner and, therefore, only on account of the fact
a decision had been taken on 14.08.2018 by the competent authority
to charge-sheet the petitioner under the Haryana Civil Services
(Punishment and Appeal) Rules, 2016 (hereinafter referred to as the
'2016 Rules'), it would mean that disciplinary action was being
contemplated.
8. It is, thus, ably argued by Mr. Kalra that only if a
charge-sheet had been issued and action was to be taken after the
completion of the inquiry proceedings, the provisions of Rule 9 (1)
(a) (iii), the second part would come into play. It was, accordingly,
submitted that there are various stages in the departmental
proceedings and only after the inquiry proceedings as such had been
completed on submission of the report, the contemplation of any
action to be taken, would be a ground as such to withhold the names.
It is, accordingly, submitted that the Rule did not provide the word
'or' and provided the word 'and'. It is further argued that reliance
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placed upon the judgment of the Division Bench passed in LPA-
1523-2019 titled as 'Manbir Singh Vs. State of Haryana and others'
decided on 29.11.2019, was misplaced, as it was a case of a person
who was facing a Vigilance Inquiry. The case pertained to Clause
(iv) where a report was to be submitted from the Vigilance Bureau.
The un-amended Rule was referred to that the persons who were not
facing disciplinary proceedings and against whom action is being
contemplated could have been kept back, to submit that in the
absence of any charge-sheet being issued, the State was not justified
as such to withhold his name. Reliance was placed upon the
judgment of the Division Bench passed in 'State Bank of Patiala
Vs. O.P. Latka', 1995 (3) SCT 465, wherein a charge-sheet had
been given subsequently and the written test and interview had
already been carried out earlier. In the absence of the same on
account of mere contemplation, resort to sealed cover procedure as
such was held not justified, since disciplinary proceedings had not
been started against the employee.
9. Learned counsel Mr. Nehra, on the other hand for the
appellant in LPA No.737 of 2021 filed by the writ petitioner, Dinesh
Singh has argued that there was a mere recommendation of the
Deputy Commissioner, Kurukshetra, to initiate departmental
proceedings against him on account of his alleged absence as a Duty
Magistrate on 05/06.01.2019 in the HTET-2018 (Annexure P-18 in
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CWP-26287-2019). The alleged decision to charge-sheet him as
such was taken on 05.02.2019 and charge-sheet was issued on
05.11.2019 and the same was dropped on 07.02.2020 on his reply
and he was only issued an advisory. It is, thus, argued that there was
no charge-sheet even contemplated on the cut-off-date on
01.11.2018 and the learned Single Judge has wrongly taken the cut-
off-date as 12.07.2019. Once the process had started on 30.05.2019
and the cut-off-date had been fixed, there could not be two cut-off-
dates as sought to be contended by the State Counsel. It is,
accordingly, argued that the Rule was being mis-used by holding
back the meritorious officers whose ACRs were upto the mark, who
were eligible to make the cut by issuing show cause notice on the
ground that action was being contemplated. He, accordingly,
submits that the learned Single Judge was in error in dismissing the
writ petition.
10. Counsel for the State, on the other hand has justified the
view taken by the learned Single Judge on the ground that when
2008 Rules were amended on 16.02.2017 (Annexure P-4), eight
years of continuous in Government service which was one of the
eligibility criteria, was by including the service rendered as Naib
Tehsildar. Due to the inclusion of service period as Naib Tehsildars,
DROs/Tehsildars, whose names were to be nominated by the
Government, had litigated in the form of CWP-8502-2017 'Joginder
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Sharma and others Vs. State of Haryana and others', wherein Naib
Tehsildars as such had been arrayed as private respondents, who
would come in the zone of consideration on account of the
amendment of the rule. In the said writ petition an interim order
dated 26.04.2017 had been passed by the Division Bench that for
determining the eligibility of DRO/Tehsildar for appointment to the
post of HCS (EB) under Register A-1, the service rendered as Naib
Tehsildars shall not be included. The said writ petition was
eventually dismissed on 13.11.2019 and it was contended that all
interim orders as such had merged in the final order. It is submitted
that prior to that applications were filed in the said case by the
private respondents that they be permitted to appear in the interview
provisionally alongwith others, which was allowed on 21.08.2019
(Annexure P-10). Another application was filed by the State on
26.08.2019 (Annexure P-11) for clarification of the said order that
identically situated persons who were not party be also allowed to
take benefit of the said order. The said application was allowed on
29.08.2019 (Annexure P-12) and the benefit was given to all
identically situated persons.
11. It is the case of the State that in pursuance of the same, a
meeting of the Committee was held on 31.08.2019. The Committee
had forwarded the names of 39 persons DROs/Tehsildars (11+21+7)
to the HPSC in view of the interim orders passed in the case of
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Joginder Sharma (supra). It is, accordingly, contended that in
such circumstances for the second set of persons the eligibility
criteria as such had to be seen on 12.07.2019. It is, accordingly,
argued that on 26.06.2019 it had been decided by the FCR that no
action had to be taken against Anil Kumar Doon and Dheeraj
Chahal, who had not signed on the sale deeds and, therefore, their
names were rightly sent, since there was no action contemplated
against them. It is, however, admitted that in the case of Meetu
Dhankhar report of Inquiry Officer dated 26.07.2019 had been
submitted and proceedings were only filed on 22.08.2019 and her
name was sent on 30.08.2019.
12. It was, accordingly, contended that the intent of the
Rule is to be seen and that the clean service record was the
requirement and it is for the law making authorities to see that if
contemplation of action was being taken, the name was not to be
nominated for consideration for the post of HCS (EB). Reliance was
placed upon the judgment of the Apex Court passed in 'Shri Ram
Krishna Dalmia vs Shri Justice S. R. Tendolkar & others', AIR
1958 SC 538 and 'Mohan Kumar Singhania and others Vs. Union
of India and others' AIR 1992 SC 1 to submit that it is not for the
Court to interpret the Rule in any other manner. It has also been
contended to rebut the argument raised by Mr. Nehra that
communication dated 09.07.2019 (Annexure P-8) was never subject
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matter of challenge, which provided that the pending disciplinary
proceedings, vigilance clearance and integrity being considered upto
the date of consideration in both cases, which had fixed the date of
12.07.2019 whereby recommendations received after the cut-off-date
were not be entertained.
13. Senior counsel Mr. Patwalia, appearing for the private
respondents in LPA No.564 of 2021 has also assisted the Court that
the writ petitioners have not impleaded the necessary parties against
whom allegations have been made to take the plea of discrimination.
An application had been filed by the private respondents No.4 to 6,
who had got themselves impleaded, as they were in the merit zone
and, therefore, had got themselves impleaded for the purpose of
ensuring that they were not pushed out. It is the case of Mr.
Patwalia that only challenge had been raised to the noting dated
30.08.2019 (Annexure P-16) wherein the writ petitioners were held
to be ineligible on account of disciplinary proceedings being
contemplated. It is, accordingly, argued that on account of non-
impleading of any of the candidates whose names had been wrongly
sent to the Commission for appointment to the post of HCS (EB) no
relief can be granted against them. It is submitted that result was
declared on 17.11.2019 (Annexure A-6) and against 23 posts 21
candidates had been appointed, subject to the final decision of the
writ petitions and the writ petitioners had not amended their writ
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petitions and, therefore, could not seek any relief.
14. It was, accordingly, argued that the purpose of
amendment has to be seen, though show cause notice of the charge-
sheet is the normal rule for consideration of initiating the
departmental proceedings, as per the law laid down in K.V.
Jankirarman's case (supra) But the rule being not challenged, the
same would stand against the writ petitioners. It is submitted that it
can be divided in two parts and the stand of the State is clear that
action was being contemplated and, therefore, the Court could not
substitute its view regarding the statue. Reliance was placed upon
the judgment of the Apex Court passed in 'Saregama India Limited
Vs. Next Radio Limited', 2022 (1) SCC 701 and 'Haryana
Financial Corporation & another vs M/S Jagdamba Oil Mills &
another', (2002) 3 SCC 496. Similarly, it is submitted that merely
on a wrong benefit granted to similarly situated persons, it could not
give them a right under Article 14 and it not being a negative
concept, specially keeping in view the fact that they had not been
impleaded neither their appointment had been challenged. Reliance
has also been placed upon the judgment passed in 'Shanti Sports
Club and another Vs. Union of India and others', (2009) 15 SCC
705 and 'R. Muthukumar & others Vs. The Chairman and
Managing Director Tangedco & others', 2022 Live Law (SC) 140
in support of the said submission.
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Pleadings of the writ petitioners:
15. Pleadings in CWP No.24538 of 2019 'Vijay Kumar
Yadav Vs. State of Haryana and others' would go on to show that the
prayer was for issuance of a writ in the nature of mandamus to
recommend his name as per the provisions of Rule 9 (a)(iii) of 2008
Rules for appointment to the post of HCS (EB) from Register A-1.
The same was sought on the basis of the compliance of directions
issued in the case of Joginder Sharma (supra) and the interim
order dated 21.08.2019 passed therein and to send his record to treat
him as eligible candidate.
16. Prayer was also sought to quash the list dated
30.08.2019 (Annexure P-16) wherein he alongwith the co-appellants
Dinesh Singh, Ravinder Singh and Gulab Singh had been declared
ineligible, on account of disciplinary proceedings being
contemplated against them and the list had been forwarded to the
respondent No.3 and that he had not incurred any ineligibility.
17. It was pleaded in paragraph No.30 of the petition that
Dheeraj Chawla (sic Chahal), Hari Om, Balraj and Brahm Parkash
were also similarly situated persons against whom there was CAG
Report, which was annexed as Annexure P-14. On 04.09.2019, the
petitioner had got directions from the learned Single Judge for
provisionally being considered for interview/scrutiny of documents,
subject to final outcome of the decision and result was kept in a
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sealed cover.
18. The stand of the State has already been noticed that
there was a contemplation as such to charge-sheet him under 2016
Rules on 14.08.2018 since he accepted the deficiency in the sale
deeds. Thus, he was not eligible, as per the rule. It was further the
case of the State that the service record and the experience is to be
considered upto 01.11.2018 as per the letter dated 09.07.2019
(Annexure P-8). The reply of the State was that there was a
recommendation to seek explanation of the said persons, but in cases
of writ petitioners action had been initiated, whereas in their cases
only explanation had been called for. Accordingly, it was the
defence of the State that a decision had been taken to initiate
disciplinary proceedings.
19. Similarly, the pleadings in CWP No.25000 of 2019
'Gulab Singh Vs. State of Haryana and others' would go on to show
that similar prayer was made. Gulab Singh also got interim order
dated 09.09.2019 from the learned Single Judge for provisionally
being considered for interview/scrutiny of documents, subject to
final outcome of the writ petition.
20. The stand of the State in its reply was that a decision
had been taken by the competent authority on 30.07.2018 to charge-
sheet the petitioner for registering 12 sale deeds. However, the draft
charge-sheet had been called from the Deputy Commissioner and the
charge-sheet is yet to be issued. The stand as to the cut-off-date is
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01.11.2018 and that against other officers whose names have been
mentioned in CAG Report, disciplinary proceedings were not
contemplated and only explanation had been called for. It is not
disputed that on 11.12.2019 (Annexure P-20) disciplinary
proceedings against both Vijay Kumar Yadav and Gulab Singh had
been dropped.
21. Pleadings in CWP No.393 of 2020 'Ravinder Singh Vs.
State of Haryana and others' would go on to show that consideration
of the claim for appointment from Register-A1 was sought on the
ground that candidates lower in merit to the petitioner had been
appointed. The said writ petition was filed post the declaration of the
result on 17.11.2019. The grouse as such was that the eligibility had
to be seen on 28.06.2019 and no disciplinary proceedings were
under contemplation.
22. The defence of the State in its reply was that the
competent authority had taken a decision on 30.07.2018 to charge-
sheet the petitioner who had registered 10 undervalued sale deeds. It
is a matter of record that on 30.12.2019 (Annexure P-10)
explanation was called for before initiating any disciplinary
proceedings. The defence of the State was clear that the petitioner
had been interviewed provisionally. He was not eligible on account
of the action being contemplated and the suitability and eligibility of
the candidates, who were to be considered on the parameters fixed
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by the Chief Secretary.
23. Similarly, in CWP No.26287 of 2019 'Dinesh Singh Vs.
State of Haryana and others' prayer for recommendation as per the
provisions of Rule 9 (1) of the 2008 Rules was made, on account of
no disciplinary proceedings pending against him. Further quashing
of list (Annexure P-9) was sought, whereby a decision had been
taken on file to charge-sheet him under Rule 7. The proceedings
held on 04.09.2019 were sought to be stayed. It was specifically
pleaded that on 06.01.2019 his duty had been fixed in HTET
Examination 2018 at DAV Public School, Sector-3, Kurukshetra and
he had been called to collect the examination papers from the
Secretariat and deliver the same to the above said centre. He had
reached the examination centre in spite of the fact that his two year
old daughter was in grave need of medical attention.
24. The stand of the State in its reply was that he was
directed to act as Duty Magistrate on 05.01.2019. On 05.02.2019 a
decision had been taken to initiate disciplinary proceedings against
him and therefore, he was ineligible for nomination to the post of
HCS (EB).
25. It is not disputed that the petitioner was charge-sheeted
on 05.11.2019 and the proceedings were dropped on 07.02.2020
(Annexure P-19) by issuing an advisory. It is, thus, the case of the
petitioner that on the cut-off-date on 01.11.2018 there was no
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contemplation to take action against him.
Consideration of the issues involved
26. A perusal of the record of CWP No.24538 of 2019
'Vijay Kumar Yadav Vs. State of Haryana and others' would go on to
show that vide notice dated 17.04.2017 (Annexure P-5) a decision
was taken by the State Government to fill up 9 vacancies of HCS
(EB). Due to the amendment of the Rule on 16.02.2017, it led to the
litigation in the form of Joginder Sharma's case (supra) and the
interim order dated 26.04.2017 was passed in the following terms:-
"Notice of motion.
On our asking, Mr.Deepak Balyan, Additional
Advocate General, Haryana, who is present in Court,
accepts notice on behalf of all respondents. Let three sets of
paper-book be handed over to him during the course of day.
List on 20.07.2017.
Reply, if any, be filed meanwhile with advance copy
to counsel for the petitioners.
As an interim measures, it is directed that while
determining the eligibility of District Revenue
Officers/Tehsildars for appointment to Haryana Civil
Services (Executive Branch) under Register A-1, their
service rendered as Naib Tehsildars shall not be included."
27. Admittedly, no recommendations were made by the
Government, since it has been specifically pleaded regarding this
aspect in paragraph no.19 of Vijay Kumar Yadav's case and which
fact has been admitted being a matter of record by the State.
Thereafter, on 30.05.2019 (Annexure P-7) a decision was taken to
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fill up 23 posts from Register A-1 of the District Revenue
Officers/Tehsildars and Financial Commissioner, Revenue &
Disaster Management and Consolidation Departments were asked to
recommend the names to fulfill the following conditions of
eligibility as on 01.11.2018. Relevant portion of the said
communication reads as under:-
"I am directed to invite your attention to the subject
noted above and to say that Government has decided to fill 23
vacancies of HCS (Executive Branch) from Register A-1 of
District Revenue Officers/Tehsildars of the year 2019 in terms
of Rule 9 of Haryana Civil Services (Executive Branch) Rules,
2008. It is, therefore, requested to send a list of eligible District
Revenue Officers/Tehsildars not more than five times of the
number of vacancies as per rules for the aforesaid recruitment.
The DROs/Tehsildars whose names are to be recommended
should fulfill the following conditions of eligibility as on
01.11.2018.
(a) i) has completed eight years continuous
Government service. However, the service rendered as
Naib Tehsildars shall not to be included while
determining the eligibility as per interim orders/directions
dated 26.04.2017 of Hon'ble High Court of Punjab and
Haryana, Chandigarh passed in CWP No.8502 of 2017-
Joginder Sharma and others versus State of Haryana and
others.
ii) has not attained the age of fifty years;
iii) is not facing disciplinary proceedings and
against whom action is not being contemplated; and
iv) is clear from vigilance angle;
(b) is a graduate from a recognised University."
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28. As noticed, thereafter on 09.07.2019 (Annexure P-8)
clarification was made that service rendered by Naib Tehsildars were
not to be included while determining eligibility, in view of the
interim order dated 26.04.2017 as reproduced above. It was further
clarified that the eligibility of 50 years of age on and after
01.11.2018 and the ACRs were to be considered upto year 2018-
2019 and experience was taken upto the date of recommendation. It
was further clarified that DROs/Tehsildars who had not attained the
age of 50 years as on 01.11.2018, but attained the age of more than
50 years on and after 01.11.2018 till the date of recommendation,
their experience and ACRs record be considered only upto
01.11.2018. However, pending disciplinary proceedings, vigilance
clearance and integrity was to be considered upto the date of
consideration in both cases. The list of eligible DROs/Tehsildars not
more than five times number of vacancies were to be sent by
12.07.2019. Relevant portions of the said communication dated
09.07.2019 read as under:-
"2.---------------It is further clarified that
DROs/Tehsildars, who are otherwise eligible being less
than 50 years of age on and after 1.11.2018, their
ACRs be considered upto year 2018-2019 and
experience be taken into consideration upto the date of
recommendation. The DROs/Tehsildars, who had not
attained the age of 50 years as on 1.11.2018 but
attained the age of more than 50 years on and after
1.11.2018 till the date of recommendation, their
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experience and ACRs record be considered only upto
1.11.2018. However, pending disciplinary proceedings,
vigilance clearance and integrity be considered upto the
date of consideration in both cases.
xxxxxxxxxxxx
5. It is, therefore, requested to send a list of
eligible District Revenue Officers/Tehsildars not more
than five times of the number of vacancies as per rules
for the aforesaid recruitment by 12.07.2019.
Recommendations received after this date will not be
entertained/considered."
29. It is apparent that vide letter dated 19.08.2019 which
finds mention in Annexure P-17, the Chief Secretary sent the names
of 13 candidates on the basis of the Selection Committee meeting
held on 13.08.2019, as per the recommendation of the Revenue &
Disaster Management Department. The names of the said 13
candidates included Dheeraj Chahal and Anil Kumar Doon reads as
under:-
Sr.No. Name & Designation
S/Sh./Smt./Ms
1. Naresh Kumar, DRO
2. Dilbag Singh, DRO
3. Hari Om Attri, DRO
4. Rajender Kumar, DRO
5. Amrinder Singh Manais, DRO
6. Braham Parkash, DRO
7. Dheeraj Chahal, DRO
8. Darshan Kumar, Tehsildar
9. Balraj Singh, DRO
10. Kulbir Singh Dhaka, DRO
11. Manav Malik, DRO
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12. Dinesh, DRO
13. Anil Kumar Doon, DRO
30. Thereafter, as per office noting dated 30.08.2019
(Annexure P-16) only 11 officers made the cut and amongst them
was Smt. Meetu Dhankhar, though in the noting it was specifically
mentioned that she was facing charge-sheet on 12.07.2019 and the
same was dropped on 22.08.2019. The four appellants herein were
rendered ineligible on account of contemplation of disciplinary
proceedings. It is pertinent to notice that on 21.08.2019 (Annexure
P-10) and 29.08.2019 (Annexure P-12), the order dated 26.04.2017
was got modified from the Division Bench in Joginder Sharma's case
(supra) and, thereafter, the Committee met on 31.08.2019 and sent a
list of 39 names.
31. As per the communication dated 03.09.2019
(Annexure A-2) which had been placed on record before the learned
Single Judge, which is the noting portion, it transpires that the
Deputy Commissioners had agreed with the response of Shri Anil
Doon and Shri Dheeraj Chahal that they had not registered the sale
deed in question, rather they were registered by the Naib Tehsildar
named therein. Resultantly, the names of the said two persons were
forwarded to the Chief Minister for nomination and it was noted that
it was without unde favour and in larger interest and to avoid
unnecessary litigation. List of various officials whose names were
being considered had also been included in the noting portion
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including the name of appellant-Gulab Singh and Vijay Kumar
Yadav, wherein it was mentioned that draft charge-sheet as such
were awaited from the District Administration and their names had
been forwarded for provisional interview, as per the interim orders
dated 21.08.2019 and 29.08.2019 alongwith other connected matters
read with the advice of the Advocate General dated 30.08.2018.
Resultantly, their cases were submitted to the Revenue Minister and
the Chief Minister for consideration for passing appropriate orders.
32. The Commission as such had published the list of 54
persons who were to be interviewed on 04.09.2019 in which the
names of the present appellants also finds mention, apart from the
other candidates. It is not disputed that the result as such was
declared on 17.11.2019 and only 21 persons were found eligible.
The result which was declared was subject to final outcome of the
writ petitions which were filed by various writ petitioners, which
reads as under:-
"RESULT
The Haryana Public Service Commission has
finalizied the result for the recruitment to the posts of HCS
(Ex.Br.) from Register A-I of DROs/Tehsildars against the
vacancies of the year 2019. On the basis of Viva-
Voce/Interview held on 04.09.2019 in Commission's office
at Panchkula, the Haryana Public Service Commission has
finalized the result for the posts of HCS (Ex.Br.) from
Register A-I of DROs/Tehsildars against the vacancies of
the year 2019. The names shown below are in order of
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merit.
Category: General (No. of posts-23) (21 eligible
candidates are available)
Amrinder Singh Manais, DRO Meetu Dhankhar, Tehsildar
Anil Kumar Doon, DRO Naresh Kumar, DRO
Braham Parkash, DRO Navdeep Singh, Tehsildar
Darshan Kumar, Tehsildar Parveen Kumar, Tehsildar
Dheeraj Chahal, DRO Rejender Kumar, DRO
Dilbag Singh, DRO Rajesh Kumar, DRO
Dinesh, DRO Rajesh Punia, Tehsildar
Hitender Kumar, Tehsildar Sanjay Bishnoi, DRO
Jagdish Chander, Tehsildar Sanjeev Kumar, Tehsildar
Kulbir Singh Dhaka, DRO Subhash Chander, Tehsildar
Manav Malik, DRO
Note:
1. While preparing the result due care has been
taken. However, any advertent error cannot be ruled out.
The Commission reserves its right to rectify any error at a
later stage.
2. The above result is further subject to outcome
to CWP No.24538 of 2019, 17295 of 2019, 26093 of 2019,
23499 of 2019, 24738 of 2019, 25010 of 2019, 25000 of
2019 & 26287 of 2019 pending before Hon'ble Punjab &
Haryana High Court.
3. This result is also available on Commission's
website i.e. http://hpsc.gov.in.
Secretary
Haryana Public Service Commission,
Panchkula
Dated: 17.11.2019"
33. It is also not disputed that on 03.09.2019, which letter
also finds mention in Annexure P-17, names of 11 officers as such
were sent, which included the name of Smt. Meetu Dhankhar. This
aspect would also be clear from the letter dated 15.11.2019 which
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was addressed by the Commission to the Chief Secretary, which read
as under:-
"Subject: Recruitment to 23 posts of HCS (Ex.Br.) for
Register A-I of DROs/Tehsildars against the
vacancies of the year 2019.
R/Madam,
I am directed to refer to your letter
No.41/2/2019-5SII dated 19.08.2019 vide which you have
sent a requisition to fill up 23 vacancies of HCS (Ex.Br.)
for Register A-I of DROs/Tehsildars against the vacancies
of the year 2019. For this recruitment, total 54 names
have been received in the Commission's Officer, details of
which are as under:
(A) Letter No.41/2/2019-5SII dated 19.08.2019 (copy
attached)
Names & Designation of the Officers (S/Sh.Smt.)
1. Naresh Kumar, DRO 9. Balraj Singh, DRO
2. Dilbag Singh, DRO 10. Kulbir Singh Dhaka, DRO
3. Hari Om Attri, DRO 11. Manav Malik, DRO
4. Rajender Kumar, DRO 12. Dinesh, DRO
5. Amrinder Singh Manais, 13. Anil Kumar Doon, DRO
DRO
6. Braham Parkash, DRO Note: Record of all 13 officers
7. Dheeraj Chahal, DRO have been received.
8. Darshan Kumar, Tehsildar
(B) Proceedings of Meeting of Selection Committee
held on 31.08.2019 and letter No.62/82/2019-4-
Vigilance(II)/9377 dated 02.09.2019 (copies attached).
The following 11 officers who are petitioner in CWP
No.8502 of 2017 and similarly situated Officers whose
record was assessed:
Names & Designation of the Officers (S/Sh.Smt.)
1. Rajesh Poonia, Tehsildar 7. Parveen Kumar, Tehsildar
2. Hitender Kumar, Tehsildar 8. Jagdish Chander, Tehsildar
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3. Meetu Dhankhar, 9. Navdeep Singh, Tehsildar
Tehsildar
4. Subhash Chander, Tehsildar 10. Sanjay Kumar, Tehsildar
5. Shyam Lal, DRO (Vigilance 11. Rajesh Kumar, DRO
clearance was shown as
pending).
6. Sanjay Bishnoi, DRO Note: Record of all 11 officers
have been received.
The following 21 Officers who are petitioner in CWP
No.8502/2017, but either their record was not upto the mark
or some disciplinary actions are pending as mentioned in
proceedings mentioned above:
Names & Designation of the Officers (S/Sh.Smt.)
1. Vijay Kumar, DRO 12. Dinesh Singh, Tehsildar
2. Manish Kumar Yadav, Tehsildar 13. Ravinder Singh, Tehsildar
3. Vikas Singh, Tehsildar 14. Ran Vijay Sultania, Tehsildar
4. Navjeet Kaur Brar, Tehsildar 15. Gulab Singh, Tehsildar
5. Vijay Mohan Syal, Tehsildar 16. Virender Kumar, Tehsildar
6. Rakesh Kumar, Tehsildar 17. Sanjay Chaudhary, Tehsildar
7. Punnaydeep Sharma, Tehsildar 18. Darpan Kamboj, Tehsildar
8. Narender Singh Dalal, Tehsildar 19. Gurdev, Tehsildar
9. Chetna Chaudhary, Tehsildar 20. Sanjeev Kumar Nagar,
Tehsildar
10. Ravinder Hooda, Tehsildar 21. Anil Kumar, Tehsildar
11. Rakesh, Tehsildar
The following 7 Officers who are not parties in CWP
No.8502/2017, but are identically situated persons and have
not been found eligible by the department as mentioned in
proceedings mentioned above:
Names & Designation of the Officers (S/Sh.Smt.)
1. Manbir Singh, DRO 5. Sushil Sharma, Tehsildar
2. Raj Kumar Bhoria, DRO 6. Vikram Singla, Tehsildar
3. Bijender Rana, Tehsildar 7. Navneet, Tehsildar
4. Parmod Chahal, DRO Note:
Further names of following 2 Officers have also
been sent in view of CWP No.23499 of 2019, but found
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them ineligible on account of not having 6 ACRs of Very
Good category and above and 2 ACRs of not less than
Good category as mentioned in proceedings mentioned
above:
Names & Designation of the Officers (S/Sh.Smt.)
1. Abhishek Bibian, DRO 2. Raj Kumar, DRO
The Commission had conducted the interviews
of all the above 54 candidates on 04.09.2019 in view
of the position explained above, but the resdult was
not declared in view of pending decision of the CWP
No.8502 of 2017 and other connected writ petitions.
The CWP No.8502 of 2017 alongwith 6 others writ
petitions mentioned therein have been decided by the
Hon'ble High Court vide its orders dated 13.11.2019
(copy enclosed). Now the Commission has decided to
declare the result of the said recruitment.
Therefore, your goodself is requested to kindly
inform the Commission as to which Officers out of
above 54 Officers are to be considered eligible for the
recruitment.
Besides above, it is also requested that if any
officer whose record has not been sent to the
Commission and he is found eligible for this
recruitment, then his/her record may also be sent to the
Commission so that Commission may not face any
difficulty while declaring the final result."
Reasoning Aspect:
34. From the above record the following issues would arise
for consideration, in the considered opinion of this Court:
(i) Whether the action of the respondents in not
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forwarding the names of the appellants was for justifiable
reasons and as per the provisions of Rule 9 (1) (a) (iii) of
the 2008 Rules;
(ii) Whether there could be two cut-off-dates as
argued by counsel for the State in the facts and
circumstances; and
(iii) Whether there can be any claim of
discrimination by invoking the provisions of Article 14
on account of the fact that similarly situated persons had
been granted the benefit.
35. The provisions of rule in question reads as under:-
"9. Selection of candidates for Register A-I:-
(1) The Additional Chief Secretary and Financial
Commissioner to Government, Haryana, Revenue and
Disaster Management, shall by a date to be determined by
the Government, prepare a list of District Revenue
Officers/Tehsildars not more than five times of the number
of vacancies and submit the same for the consideration of a
Committee with Chief Secretary as Chairman and two such
other officers and members, as may be nominated by the
Government from time to time, the name of a person shall
be submitted who-
(a) (i) has completed eight years continuous
Government Service including service rendered as
Naib Tehsildar;
(ii) has not attained the age of fifty years
on the first day of November immediately
preceding the date of submission of names by
the concerned authority;
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(iii) is not facing disciplinary proceedings
and against whom action is not being
contemplated; and
(iv) is clear from vigilance angle;
(b) is a Graduate from a recognized University.
(2) The Committee mentioned in sub-rule (1) shall
consider all such names and prepare a list, equal to twice
the number of vacancies of persons considered suitable for
being entered in Register A-I. This list shall be sent to the
Commission for recommending, in order of merit and equal
to the number of vacancies, the most suitable persons
entered in the list, for being selected as candidates for entry
into Register A-I, and thereafter the names of the persons so
selected shall be entered in the Register A-I."
36. A perusal of the above said rule would go on to show
that Rule 9 (1) (a) (iii) provides that a date is to be determined by the
Government for the preparation of the list of the DROs/Tehsildars of
not more than five times of the number of vacancies to be submitted
for nomination to the Committee. The requirement as such as per the
rule is 8 years continuous service of DROs/Tehsildars and service
rendered as Naib Tehsildar is to be counted. The candidate in
question was not to be more than 50 years of age on the Ist day of
November, immediately preceding date of submission of name by
the concerned authority. As per Clause (ii) similarly he was not to
be facing disciplinary proceedings and against whom action was not
being contemplated and under Clause (iv) was to be clear from
vigilance angle.
37. The letter dated 30.05.2019, wherein a decision was
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taken to fill up 23 posts from Register A-1 specifically provided that
the names which were to be recommended should fulfill the
eligibility as on 01.11.2018. Relevant portion of the said letter has
already been reproduced above in paragraph No.27. The
recommendation were to be sent by 28.06.2019 and any
recommendation received after the said date were not to be
entertained and considered.
38. On account of the interim order dated 26.04.2017
passed in Joginder Sharma's case (supra), service rendered as
Naib Tehsildar was not to be included for considering the 8 years of
continuous qualifying government service. Thereafter, the letter
dated 09.07.2019 (Annexure P-8) was issued reiterating the said fact
that the age of the concerned officials had to be less than 50 years of
age on or after 01.11.2018 and their ACRs were to be considered
upto year 2018-2019 and experience be taken into consideration upto
the date of recommendation. The DROs/Tehsildar who had attained
the age of 50 years after 01.11.2018 till the date of recommendation,
their ACRs and experience was to be considered only upto
01.11.2018. Similarly pending disciplinary proceedings, vigilance
clearance and integrity was to be considered upto the date of
consideration in both cases. Thereafter, the applications were filed
and the order of the Division Bench was got modified on 21.08.2019
(Annexure P-10) and 29.08.2019 (Annexure P-12), wherein private
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respondents in the said case and similarly situated persons were also
to be considered and they were allowed to appear in the interview
provisionally alongwith others. The cut-off-date, thus, has to be
seen from the date which is provided in the rules, which would be
01.11.2018 as per Rule 9 (1)(a)(iii) of the 2008 Rules, as the process
was set into motion on 30.05.2019. It is, thus, does not lie in the
mouth of the State as such to say that on account of the pending
litigation and on account of the orders of the Division Bench dated
21.08.2019 and 29.08.2019, a different cut-off-date would come into
play and there was a distinction as such qua the names which had
been sent later. The eligibility as such has to be seen as provided in
the rule itself and finding of the learned Single Judge that the cut-
off-date is 12.07.2019 is based on a wrong presumption.
39. The finding recorded that the letter dated 30.05.2019
was superseded by letter dated 09.07.2019 is based on a supposition
which would be contrary to the rule quoted above. Neither in the
said letter it has been mentioned anywhere that the same supersedes
the earlier letter dated 30.05.2019 and neither the same would be
permissible in any manner. Merely because the cut-off-date for
sending the list of eligible persons was extended to 12.07.2019, it
does not mean that the cut-off-date would change on account of the
provisions of the rule itself, which specifically provides that the age
has to be seen on the 1st day of November, immediately preceding
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date of submission of names by the concerned authority. The said
date has thus to be seen for all practical purposes the relevant date
for considering the eligibility and the disqualification, if any, of the
candidates including the mandatory requirement of 8 years of
service.
40. In such circumstances, the reasoning as such that list of
16 candidates had been sent on 12.07.2019 and the said date has to
be taken to be the cut-off-date for determination of eligibility cannot
be sustained. Resultantly, this Court is of the opinion that the cut-
off-date has to be considered as 01.11.2018. It is also to be noticed,
as per the response of the State also in the written statement it was
their specific stand that the experience is to be considered upto
01.11.2018 and, therefore, it does not lie in the mouth of the State to
contend that a different cut-off-date has to be adopted. Even
otherwise the letter dated 09.07.2019 (Annexure P-8) was also
issued prior to any interim orders passed by this Court on 21.08.2019
and 29.08.2019 and, therefore, the argument raised that it was on
account of the orders of this Court two separate cut-off-dates were
being considered, is without any basis.
41. Keeping in view the above, it is now to be seen as to
whether on the said cut-off-date the writ petitioners/appellants were
eligible and whether they were facing disciplinary proceedings or
not and action was being contemplated against them as per the rule.
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The plain reading of the said rule has to be done and it is not for this
Court to go into interpretation as such, admittedly neither any
challenge as such has been raised to the rule in question. It is the
specific stand of the State that in the case of Vijay Kumar Yadav that
a decision to charge-sheet him was taken on 14.08.2018, which was
well before the cut-off-date of 01.11.2018. It is, thus, apparent that
when the first list of 13 persons was sent on 19.08.2018, the writ
petitioner's name did not find mention on that account.
42. Similarly, the stand of the State in Gulab Singh's case is
also that a decision was taken to charge-sheet him on 30.07.2018
which was again prior to 01.11.2018 and the stand again of the State
was that the cut-off-date has to be seen as 01.11.2018. In the case of
Ravinder Singh also the stand of the State was that on 30.07.2018 a
decision had been taken to charge-sheet the petitioner, therefore, also
he was ineligible on the cut-off-date on the plain reading of the rule.
Reliance can be placed upon the judgment of the Constitution Bench
passed in 'Padma Sundara Rao (Dead) & Ors Vs. State Of Tamil
Nadu & Ors' (2002) 3 SCC 533, wherein it was held that it is not
for the Court to go into the question which may be supposed and
what has been intended. Relevant portion of the said judgment reads
as under:-
12........The Court cannot read anything into a
statutory provision which is plain and unambiguous. A
statute is an edict of the legislature. The language employed
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in a statute is the determinative factor of legislative intent.
The first and primary rule of construction is that the
intention of the Legislation must be found in the words used
by the Legislature itself. The question is not what may be
supposed and has been intended but what has been said."
43. The said view was followed in the case of Saregama
India Limited (supra), wherein it was held that if the provision of
law is misused and subjected to the abuse of process of law, it is for
the legislature to amend, modify or repeal it. Resultantly, it had been
held that the exercise that had been done by the High Court
amounted to rewriting, which was not permissible and the interim
order was set aside. Relevant portion of the said judgment reads as
under:-
"21. The court is entrusted by the Constitution of the
power of judicial review. In the discharge of its mandate,
the court may evaluate the validity of a legislation or rules
made under it. A statute may be invalidated if is ultra vires
constitutional guarantees or transgresses the legislative
domain entrusted to the enacting legislature. Delegated
legislation can, if it results in a constitutional infraction or is
contrary to the ambit of the enacting statute be invalidated.
However, the court in the exercise of judicial review cannot
supplant the terms of the provision through judicial
interpretation by re-writing statutory language.
Draftsmanship is a function entrusted to the legislature.
Craftsmanship on the judicial side cannot transgress into the
legislative domain by re-writing the words of a statute. For
then, the judicial craft enters the forbidden domain of a
legislative draft. That precisely is what the Division Bench
of the High Court has done by its interim order. Section
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31D(2) speaks of the necessity of giving prior notice, in the
manner as may be prescribed, of the intention to broadcast
the work stating the duration and the territorial coverage of
the broadcast, together with the payment of royalties in the
manner and at the rates fixed by the Appellate Board. While
the High Court has held the broadcasters down to the
requirement of prior notice, it has modified the operation of
Rule 29 by stipulating that the particulars which are to be
furnished in the notice may be furnished within a period of
fifteen days after the broadcast. The interim order converts
the second proviso into a "routine procedure" instead of an
exception (as the High Court has described its direction).
This exercise by the High Court amounts to re-writing. Such
an exercise of judicial redrafting of legislation or delegated
legislation cannot be carried out. The High Court has done
so at the interlocutory stage."
44. In the case of Mohan Kumar Singhania (supra) it was
also held that the consideration on inconvenience and hardship
should not be seen while interpreting a statute and the ordinary sense
with reference to other clauses of the Act or Rules has to be seen.
Relevant portion of the said judgment reads as under:-
67. We think, it is not necessary to proliferate this
judgment by citing all the judgments and extracting the
textual passages from the various Text Books on the
Principles of Interpretation of Statutes. However, it is
suffice to say that while interpreting a statute the
consideration of inconvenience and hard ships should be
avoided and that when the language is clear and explicit and
the words used are plain and unambiguous, we are bound to
construe them in their ordinary sense with reference to other
clauses of the Act or Rules as the case may be, so far as
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possible, to make a consistent enactment of the whole statute
or series of statutes/ Rules/ Regulations relating to the
subject matter. Added to this, in construing a statute, the
Court has to ascertain the intention of the law making
authority in the backdrop of the dominant purpose and the
underlying intendment of the said statute and that every
statute is to be interpreted without any violence to its
language and applied as far as its explicit language admits
consistent with the established rule of interpretation."
45. In such circumstances, the argument raised by Mr. Kalra
that how the Rule 9 (1)(a)(iii) is to be read is without any basis. As
noticed the said rule was never subject matter of challenge and it is
not for this Court to go into the interpretation of the statute, since the
relief only sought was that the name was not considered at that point
of time. It is not for this Court to substitute its view to suit the
convenience of the appellants as such. Thus, it is apparently clear
that the writ petitioners/appellants Vijay Kumar Yadav, Gulab Singh
and Ravinder Singh, on account of action being contemplated,
cannot claim any right of consideration, in view of the rule which
stares them in their face.
46. However, in the case of Dinesh Singh, it is apparent that
the decision to charge-sheet him was taken on 05.02.2019 which is
after the cut-off-date of 01.11.2018 and, therefore, the stand of the
State that he was ineligible for nomination to the post of HCS (EB)
is not justified. Even Mr. Sunil K. Nehra, is also correct to submit
that 'rules of the game' could not be changed after the game has
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started since the nomination process had started on 30.05.2019. The
cut-off-date had been fixed as 01.11.2018 and he was justified to
submit that the learned Single Judge was in error in coming to the
conclusion that eligibility has to be seen on 12.07.2019 and his case
was not considered on that account and the writ petition had been
wrongly dismissed.
47. Reliance can be placed upon the judgment of the Apex
Court passed in K. Manjusree Vs. State of A.P and another', 2008
(2) SCT 6, wherein it had been held that the reduction in the criteria
of minimum marks for interview shall not be introduced after the
entire selection process had been completed and it would amount to
changing the rules of the game after the game was played, which is
not permissible. It was held that the Selection Committee was free
to do the same, but the same was before the commencement of
selection process. The said principle would be squarely applicable
in the present case.
48. Reliance placed upon the judgment passed in K.V.
Jankirarman and O.P. Latka (supra) as such would be without
any basis, in view of the clear dictate of the rule that where action
was being contemplated, the State was within its right to withhold
the name for nomination. The factual aspect has already been
discussed above and, therefore, for the first three appellants namely
Vijay Kumar Yadav, Gulab Singh and Ravinder Singh, it has been
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found that action in principle was being contemplated. Therefore, it
does not lie in their mouth as such to claim that their names have
been wrongly withheld.
2nd Issue of Discrimination
49. On the issue of discrimination as such that two other
similarly situated persons names had been recommended namely
Shri Dheeraj Chahal and Anil Doon is without any basis. It is not
the case of the said appellants the abovesaid persons had been
appointed at their cost. Even otherwise the State has rightly justified
in its stand that no action was being contemplated against Dheeraj
Chahal and Anil Doon and that is why their names were sent and
which was under the provisions of the rule itself. The said persons
have neither been impleaded as party and, therefore, no relief can be
granted against them. The declaration of the result also shows that
two seats are vacant, but in the facts and circumstances since the writ
petitioners have a legal bar as such against them as per the
provisions of the rule, no fault can be found in the action of the State
qua the three writ petitioners.
50. The argument that similarly situated persons names had
been recommended and, therefore, the writ petitioners should have
also been recommended, has already been examined under issue
no.1, wherein it has been noticed that as per the provisions of the
rule and factual matrix, charge-sheets were not contemplated against
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the two persons. Therefore, the argument of violation of Article 14
had rightly been rejected by the learned Single Judge and thus, the
claim for parity as such is not sustainable. Even otherwise it is the
settled principle that Article 14 is a positive concept and not a
negative concept and it has been time and again observed as such.
Reliance can be placed upon the judgment passed in Shanti Sports
Club (supra), wherein in para no.71 it was held as under:-
"Article 14 of the Constitution declares that:
14. Equality before law.- The State shall not
deny to any person equality before the law or the equal
protection of the laws within the territory of India."
The concept of equality enshrined in that Article is
a positive concept. The Court can command the State to
give equal treatment to similarly situated persons, but
cannot issue a mandate that the State should commit
illegality or pass wrong order because in another case such
an illegality has been committed or wrong order has been
passed. If any illegality or irregularity has been committed
in favour of an individual or a group of individuals, others
cannot invoke the jurisdiction of the High Court or of this
Court and seek a direction that the same irregularity or
illegality be committed in their favour by the State or its
agencies/instrumentalities. In other words, Article 14
cannot be invoked for perpetuating irregularities or
illegalities. In Chandigarh Administration v. Jagjit Singh
(1995) 1 SCC 745, this Court made a lucid exposition of
law on this subject. The facts of that case were that the
respondents, who had given the highest bid for 338 sq.
yds. Plot in Section 31A, Chandigarh defaulted in paying
the price in accordance with the terms and conditions of
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allotment. After giving him opportunity of showing cause,
the Estate Officer cancelled the lease of the plot. The
appeal and the revision filed by him were dismissed by the
Chief Administrator and Chief Commissioner, Chandigarh
respectively. Thereafter, the respondent applied for refund
of the amount deposited by him. His request was accepted
and the entire amount paid by him was refunded. He then
filed a petition for review of the order passed by the Chief
Commissioner, which was dismissed. However, the officer
concerned entertained the second review and directed that
the plot be restored to the respondent. The latter did not
avail benefit of this unusual order and started litigation by
filing writ petition in the High Court, which was dismissed
on March 18, 1991. Thereafter, the respondent again
approached the Estate Officer with the request to settle his
case in accordance with the policy of the Government to
restore the plots to the defaulters by charging forfeiture
amount of 5%. His request was rejected by the Estate
Officer. He then filed another writ petition before the High
Court, which was allowed only on the ground that in
another case pertaining to Smt. Prakash Rani, the
Administrator had restored the plot despite dismissal of the
writ petition filed by her. While reversing the order of the
High Court, this Court observed as under:-
"8......We are of the opinion that the basis or the
principle, if it can be called one, on which the writ
petition has been allowed by the High Court is
unsustainable in law and indefensible in principle. Since
we have come across many such instances, we think it
necessary to deal with such pleas at a little length.
Generally speaking, the mere fact that the respondent-
authority has passed a particular order in the case of
another person similarly situated can never be the ground
for issuing a writ in favour of the petitioner on the plea of
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discrimination. The order in favour of the other person
might be legal and valid or it might not be. That has to be
investigated first before it can be directed to be followed
in the case of the petitioner. If the order in favour of the
other person is found to be contrary to law or not
warranted in the facts and circumstances of his case, it is
obvious that such illegal or unwarranted order cannot be
made the basis of issuing a writ compelling the
respondent-authority to repeat the illegality or to pass
another unwarranted order. The extraordinary and
discretionary power of the High Court cannot be
exercised for such a purpose. Merely because the
respondent-authority has passed one illegal/unwarranted
order, it does not entitle the High Court to compel the
authority to repeat that illegality over again and again.
The illegal/unwarranted action must be corrected, if it
can be done according to law-indeed, wherever it is
possible, the Court should direct the appropriate
authority to correct such wrong orders in accordance with
law-but even if it cannot be corrected, it is difficult to
see how it can be made a basis for its repetition. By
refusing to direct the respondent-authority to repeat the
illegality, the Court is not condoning the earlier illegal
act/order nor can such illegal order constitute the basis
for a legitimate complaint of discrimination. Giving
effect to such pleas would be prejudicial to the interests
of law and will do incalculable mischief to public
interest. It will be a negation of law and the rule of law.
Of course, if in case the order in favour of the other
person is found to be a lawful and justified one it can be
followed and a similar relief can be given to the
petitioner if it is found that the petitioners' case is similar
to the other persons' case. But then why examine another
person's case in his absence rather than examining the
case of the petitioner who is present before the Court and
seeking the relief. Is it not more appropriate and
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convenient to examine the entitlement of the petitioner
before the Court to the relief asked for in the facts and
circumstances of his case than to enquire into the
correctness of the order made or action taken in another
person's case, which other person is not before the case
nor is his case. In our considered opinion, such a course-
barring exceptional situations-would neither be
advisable nor desirable. In other words, the High Court
cannot ignore the law and the well-accepted norms
governing the writ jurisdiction and say that because in
one case a particular order has been passed or a particular
action has been taken, the same must be repeated
irrespective of the fact whether such an order or action is
contrary to law or otherwise. Each case must be decided
on its own merits, factual and legal, in accordance with
relevant legal principles. The orders and actions of the
authorities cannot be equated to the judgments of the
Supreme Court and High Courts nor can they be elevated
to the level of the precedents, as understood in the
judicial world."
51. The latest judgment of the Apex Court passed in R.
Muthukumar (supra) also expounds the same principle. Relevant
portion of the said judgment reads as under:-
"28. A principle, axiomatic in this country's
constitutional lore is that there is no negative equality. In
other words, if there has been a benefit or advantage
conferred on one or a set of people, without legal basis or
justification, that benefit cannot multiply, or be relied upon
as a principle of parity or equality. In Basawaraj & Anr. v.
Special Land Acquisition Officer, (2013) 14 SCC 81, this
court ruled that:
"8. It is a settled legal proposition that Article 14
of the Constitution is not meant to perpetuate illegality or
fraud, even by extending the wrong decisions made in
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other cases. The said provision does not envisage negative
equality but has only a positive aspect. Thus, if some other
similarly situated persons have been granted some
relief/benefit inadvertently or by mistake, such an order
does not confer any legal right on others to get the same
relief as well. If a wrong is committed in an earlier case, it
cannot be perpetuated."
52. Resultantly , the said issue is decided against the three
appellants.
53. Smt. Meetu Dhankhar is though apparently ineligible
since proceedings were pending against her as per the office noting
itself and the fact that there was a report of the inquiry officer which
only came on 26.07.2019, but in the absence of any relief being
claimed against her in the present writ petitions she had not been
impleaded as a party. Thus, it could not be for us to comment upon
her name which was sent prima facie in violation of the provisions
of the rule, which would be clear from the office note itself and
which also could not be justified by the counsel for the State.
54. However, this Court cannot shut its eyes to the
ineligibility of Smt. Meetu Dhankhar on the face of the record and
though no relief has been claimed against her, but the final result is
subject to the decision of the litigation. It has been argued on behalf
of the State that the nomination from the DROs/ Tehsildars is to the
post of HCS(EB) which is a prestigious assignment and the purpose
of amendment of the rules is that no departmental proceedings
should be pending or action should not be contemplated. Therefore,
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even the Learned Single Judge has held that it is for the purpose of
nominating persons who have a clean slate. Thus, on the one hand
argument raised is that persons with a clean slate should only be
nominated but apparently, on the face of the record, it seems that the
said officer has been nominated though she was facing a charge-
sheet which had been issued under Rule 7 of the 2016 Rules on
14.01.2019, wherein the charge was of registering sale deeds after
passing of the orders by the Apex Court in Civil Appeals, which
would be clear from the record. A perusal of the record produced
would go on to show that on 10.05.2018, the Deputy Commissioner
had appointed Sub-Divisional Officer, Karnal as Enquiry Officer
regarding the sale deeds executed in violation of the orders of the
Apex Court and as per the preliminary enquiry and major penalty
had been proposed by the SDO. On 21.08.2018, the Deputy
Commissioner had written regarding the issuance of registration of
sale deeds done in contravention of the orders of the Apex Court in
CA-8788-2015 titled Rameshwar Vs. State of Haryana & others,
dated 12.03.2018.
55. It is, thus, apparent that action had already been
contemplated against her prior to 01.11.2018 which is the cut-off
date since the Deputy Commissioner on 21.08.2018, agreed with the
observations of the SDO and recommended that strict disciplinary
action should be taken against the concerned officer and forwarded
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the same to the Addl.Chief Secretary (Financial Commissioner-
Revenue). The enquiry report dated 26.07.2019 was forwarded to
the Deputy Commissioner on 20.08.2019 and only on 22.08.2019,
the charge-sheet was filed. Rather a perusal of the file would go on
to show that on 21.08.2019 when the order was passed by the
Division Bench, Ms.Meetu Dhankhar had filed an application to the
Addl.Chief Secretary for finalization of the disciplinary proceedings
pending against her and for forwarding her name for the purpose of
Register A-1. In such circumstances, it is for the Government to
take action on the said issue and after following due procedure and
issuing show cause notice to the concerned officer(s), especially
since the final result is subject to the final decision of the litigation.
Relief:
56. Keeping in view the above discussion LPA Nos.564,
571 and 655 of 2021 are dismissed and LPA No.737 of 2021 filed by
Dinesh Singh is allowed. All pending applications are also disposed
of as such. The State shall take steps to consider the case of the said
appellant for appointment from Register A-1 against two vacancies
which are available as per the result dated 17.11.2019. The
necessary exercise be completed within a period of two months from
today.
57. Copy of this order be sent to the Chief Secretary,
Haryana for necessary compliance regarding action to be taken
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regarding Smt. Meetu Dhankhar. Original record be returned to
Mr. Pandit after obtaining proper receipt.
(G.S. SANDHAWALIA)
JUDGE
(VIKAS SURI)
MARCH 08, 2022 JUDGE
Naveen
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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