Punjab-Haryana High Court
Hardeep Kaur vs Punjab And Haryana High Court And ... on 30 September, 2022
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CWP No.8817 of 2019
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.8817 of 2019
Date of decision : 30.09.2022
Hardeep Kaur
.....Petitioner
VERSUS
Punjab and Haryana High Court, Chandigarh and another
....Respondents
CORAM:- HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
HON'BLE MR. JUSTICE LALIT BATRA
Present: Mr. R.K. Malik, Senior Advocate with
Mr. Sandeep Dhull, Advocate, for the petitioner.
Ms. Divya Sharma, Advocate
for respondent No.1 - High Court.
Mr. Deepak Bhadwaj, Deputy Advocate General, Haryana.
*****
AUGUSTINE GEORGE MASIH, J.
This writ petition has been preferred by the petitioner, who
had, in pursuance to a notification dated 29.04.2013, issued by the Punjab
and Haryana High Court (hereinafter referred to as 'High Court') inviting
applications for selection of 17 candidates (8 for general category, 6 for
S.C. Category and 3 for B.C. Category) for appointment to the Haryana
Superior Judicial Services (hereinafter referred to as 'HSJS') by way of
direct recruitment in the State of Haryana, applied for the said post under
the General category. The preliminary examination was held on
22.09.2013 leading to the main examination which was held in the month
of November, 2013, where the petitioner participated under Roll No.5069.
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She having cleared the main written examination participated in the
interview leading to the declaration of result in the month of February,
2014, where she was placed at merit No.12. Five candidates, who were
higher in merit than the petitioner, were also selected in the Punjab
Superior Judicial Services and opted for appointment in the State of
Punjab leading to the petitioner being placed at merit position No.8. Out
of these 8 candidates, one belong to the Backward Class category, who had
obtained higher marks than the petitioner and therefore, came within the
selection zone and was placed at Sr. No.7. Seven candidates, according to
the merit, were offered appointment and joined service as Additional
District Judge (Direct Quota) in the month of April, 2014. Petitioner was
not offered the appointment despite there being 8 posts for the General
category for the reason that CWP No.24195 of 2013 was preferred by one
Nidhi challenging the preliminary examination, where she was allowed to
appear in the main examination as also in the interview provisionally with
a decision having been taken by the High Court on the administrative side
not to issue appointment letter because of the pendency of the writ petition
to the last candidate according to the merit list in the General category i.e.
the petitioner. The said writ petition preferred by Nidhi was dismissed by
this Court vide judgment dated 19.03.2018 which when challenged in the
Hon'ble Supreme Court i.e. SLP (C) No.11602 of 2018 was dismissed on
11.05.2018.
2. Petitioner, after the dismissal of the writ petition by the High
Court on 19.03.2018, submitted a representation to the Registrar, dated
19.04.2018 (Annexure P-2) highlighting therein the aspect with regard to
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she being placed at merit list No.8 in the General category and that the said
post was kept vacant because of the pendency of the writ petition which
post can be filled-up now after the dismissal of the writ petition. It was
also intimated that she has shifted from Chandigarh to Delhi and supplied
the fresh correct address at Delhi for future communication. High Court,
vide letter dated 18.09.2018 (Annexure P-4) asked the petitioner to give an
option as to whether she was interested to join HSJS in case the post is
offered to her to which she responded vide communication dated
08.10.2018 (Annexure P-3) mentioning that the option for joining the
HSJS be kept open. The said communication was considered by the High
Court and the request for keeping the option open at the hands of the
petitioner was rejected vide decision dated 16.11.2018 (Annexure P-5).
A representation dated 22.11.2018 (Annexure P-6) was
submitted by the petitioner stating therein that neither any post has been
offered nor any appointment letter issued to the petitioner and only
willingness has been sought where she stated that she is willing to join the
HSJS, if the post is offered to her. It is here, for the first time, she
disclosed that she had already joined Delhi Higher Judicial Services on
26.09.2015 and continuing on the post of Additional District Judge since
then. She further intimated that she would be sending her willingness
through proper channel i.e. through the office of the Registrar General of
Delhi High Court in case the offer of appointment is made to her. It was
also mentioned that the option for joining HSJS may be kept open for her
till the post is offered. This representation was also rejected by the High
Court where she requested to keep the option open and the decision was
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communicated to her on 07.12.2018 (Annexure P-7).
3. Another representation dated 12.12.2018 (Annexure P-8) was
submitted by the petitioner requesting to consider her willingness to join
the HSJS and to issue appointment orders by considering her case on
humanitarian ground. With no response from the High Court, this writ
petition was filed by the petitioner on 25.03.2019 praying for issuance of a
writ in the nature of certiorari to quash the the order dated 16.11.2018
(Annexure P-5) and order dated 07.12.2018 (Annexure P-7), by which the
willingness of the petitioner in response to her request for keeping the
option open for offering an appointment for the post of Additional District
Judge had been rejected. Writ of mandamus has also been prayed for
considering her claim for appointment as Additional District Judge being
selected within the advertised post and after issuance of the appointment,
grant her all consequential benefits.
4. The ground for challenge is that there is no fault on the part of
the petitioner and it has so happened that in the year 2014 although the
petitioner had been placed at merit No.8 in the General category of HSJS
and even the High Court, as is apparent from the letter/communication sent
after the dismissal of the writ petition of Nidhi referred to above on
19.03.2018, willingness of the petitioner was sought but no offer of
appointment was made and therefore, the petitioner could not exercise her
option effectively. Had it not been the pendency of the writ petition and a
decision taken by the High Court on the administrative side not to offer
appointment to the petitioner being the last candidate of General category
in the merit list, she would have joined the service in April 2014 along
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with the other selected candidates. Immediately after the dismissal of the
writ petition filed by Nidhi, petitioner herein had expressed her interest
and willingness to join HSJS and also gave the changed address. There
was no ground for rejecting her request for keeping the option open
without offering her an appointment against the post which was kept
unfilled because of the administrative decision of the High Court. The
language and the tenor of the responses/representations which have been
submitted by the petitioner to the High Court clearly indicate her
willingness to join HSJS, if the post is offered to her. In the absence of
any such offer at the end of the High Court, petitioner cannot be held
responsible for having not given her willingness and requesting for
keeping the option open. The rejection of the claim of the petitioner,
therefore, being unjustified and is contrary to the settled principles of law
which mandate issuance of an appointment letter when the Appointing
Authority is inclined to fill-up the post which is apparent from the offers of
willingness issued by the High Court dated 18.09.2018 (Annexure P-4)
and 16.11.2018 (Annexure P-5).
5. Upon notice having been issued, reply has been filed to the
petition by the respondents. So far as respondent No.2 - State of Haryana
is concerned, the same is formal as it has been stated therein that it is for
the High Court (respondent No.1) to respond to the factual aspects as well
as the claim as has been made.
In the reply which has been filed by the High Court
(respondent No.1), the stand taken is that the petitioner despite having
been selected and joined the Delhi Higher Judicial Services on 26.09.2015,
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had neither disclosed this fact nor was it stated in her representation dated
19.04.2018 (Annexure P-2) or in her letter dated 08.10.2018 (Annexure P-
3). These facts have been disclosed by her for the first time in her
representation dated 22.11.2018 (Annexure P-6). Petitioner, according to
the High Court, is adopting extremely evasive and opaque approach, dis-
entitling her to the relief as has been claimed by her in the writ petition.
Another objection which has been highlighted by respondent No.1 - High
Court is that the petitioner would not be entitled to the claim made in the
writ petition in the light of the judgment of the Hon'ble Supreme Court in
Dheeraj Mor Vs. Hon'ble High Court of Delhi 2020 (7) SCC 401,
wherein the Three Judges Bench of the Hon'ble Supreme Court has
decided the issue whether the eligibility for appointment of an
applicant/candidate in the selection process for appointment as District
Judge has to be seen at the time of last date of receipt of the applications or
at the time of appointment as well. It is contended that the Hon'ble
Supreme court has held that the eligibility of a candidate is not only to be
seen as on the cut off date but at the time of appointment as District Judge
as well. On that basis, it has been pleaded that when the option has been
sought from the petitioner about her willingness to join HSJS i.e. on
18.09.2018 (Annexure P-4), she had already joined the Delhi Higher
Judicial Services as Additional District Judge on 26.09.2015 and therefore,
she was not eligible for appointment as District Judge in the HSJS.
6. Further, as far as the factual aspects as has been pointed out by
the petitioner and stated above have not been disputed by the High Court
but what has been submitted is that despite having been specifically asked
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as to whether she was interested to join HSJS in case the post is offered to
her, she had never come forward to specifically express her willingness to
join HSJS through her communications addressed to the High Court but
had always stated that the option be kept open. In the light of the failure
on the part of the petitioner to furnish her unambiguous and unequivocal
willingness to join the HSJS, her request has rightly been rejected by the
High Court. The representations which have been submitted by the
petitioner appear to be with an intention to play hide and seek and in that
process, keep the post unfilled for an indefinite period while continuing to
work as a Judicial Officer in the Delhi Higher Judicial Services. The High
Court could not have recommended the name of the petitioner for
appointment unless a clear actual willingness to join the HSJS was
received from her which she failed to submit leading to the passing of the
orders of rejection on her representations. It is, on these basis, that the
prayer has been made for dismissal of the writ petition.
7. Learned senior counsel for the petitioner has, apart from
reiterating the factual position, submitted that there was simultaneous
process of selection to the Superior Judicial Services both in the State of
Haryana as well as in Delhi and the petitioner had applied in pursuance to
the advertisements issued by the respective High Courts. Petitioner being
resident of Haryana was always inclined to take-up the appointment in
Haryana and is still so and therefore, pursuing the remedy before this
Court but because of the administrative decision having been taken by the
High Court, where the post which was to fall to the petitioner being the
highest in merit i.e. at Sr. No.8, because of the pendency of the writ
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petition preferred by one Nidhi i.e. CWP No.24195 of 2013 challenging
the preliminary examination where she had been permitted provisionally to
participate in the main examination as well as in the interview to await the
decision thereof, cannot be taken against the petitioner. It is during the
interregnum that she was selected and offered appointment in the Delhi
Higher Judicial Services where she joined as an Additional District Judge
on 26.09.2015 and continuing thereafter. It is immediately after the
dismissal of the writ petition on 19.03.2018 that the petitioner submitted a
representation highlighting the aspect of change of address in the month of
April, 2018 for future communication which clearly indicates her interest
in joining the post. Had there been a clear offer on the part of the High
Court offering appointment against the post, there was no reason why the
petitioner would not have joined the service. In the absence of any such
offer of appointment, the petitioner had requested for keeping the option
open till the offer of appointment against the post is given to her. For the
reasons beyond the control of the petitioner, she could not be held
responsible and cannot be denied the rightful claim for appointment to the
post against which she had been duly selected and willingness to join had
also been sought by the High Court.
As regards the judgment of the Hon'ble Supreme Court in
Dheeraj Mor's case (supra), learned senior counsel for the petitioner had
made an effort to distinguish the same on facts by asserting that on the last
date of receipt of the application, the petitioner was an Advocate and even
at the time when the result was declared by the High Court was continuing
as an Advocate. Had she been offered appointment along with the other
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batch-mates to the post of Additional District Judge in April, 2014, she
would have joined the service. In the light of the uncertainty which prevail
because of the decision taken by the High Court on administrative side for
not issuing appointment letter to the petitioner awaiting the decision in the
writ petition preferred by Nidhi (supra), petitioner would not be expected
to await for an uncertain time. A prudent person would avail of an
opportunity and that too at the same level but in a different State, if
offered, which she availed of and joined Delhi Higher Judicial Services in
the year 2015. The wait could not be unending as there was uncertainty as
to when the writ petition would be decided and what would be the fate
thereof and therefore, the petitioner cannot be denied her rightful claim for
appointment to the post of Additional District Judge in HSJS and that too,
for the reasons not attributable to the petitioner.
Learned senior counsel has further pointed out that the issue
involved before the Hon'ble Supreme Court was primarily relatable to the
eligibility of a Judicial Officer to participate in the selection process for
appointment to the post of District Judge through direct recruitment. The
answer to the said question was in the negative and it was held that the
Judges of the Subordinate Judicial Services cannot be considered eligible
for appointment to the post of District Judge in the light of Article 233 of
the Constitution of India. He, on this basis, contends that the petitioner
cannot be denied her rightful claim and the judgment of the Hon'ble
Supreme Court in Dheeraj Mor's case (supra) would not be applicable to
the case of the petitioner.
8. Learned senior counsel has made an attempt to contend that
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where a candidate is eligible on the last date of receipt of applications i.e.
cut off date and even at the time when the selection process is completed
she continues to be an Advocate and therefore, eligible for appointment as
District Judge under Article 233 of the Constitution of India, the
subsequent appointment to the Judicial Services and that too at the same
level but in a different State, cannot be a ground for holding the said
candidate to be an inservice candidate or a Judicial Officer on the date
when the offer of appointment is made. There is no other disqualification
which has been attached or projected by the High Court except for this.
Prayer has, thus, been made for accepting the writ petition and grant the
benefit of consideration of the claim of the petitioner for appointment to
the post of Additional District Judge in the HSJS and as a consequence
thereof, on her appointment grant her all consequential benefits.
9. Counsel for respondent No.1 - High Court has reiterated the
grounds and stand taken by the High Court in her arguments by asserting
that at no stage, after the petitioner had been requested to give her option
for joining the post if offered, had the petitioner accepted the said offer in
categoric terms nor has she put forth and projected her willingness in clear
terms. Her response has been evasive and with an intention to gain time.
The uncertainty is writ large in the response which has been received from
her. In the light of there being no specific response from the petitioner,
the High Court was not in a position to offer her appointment to the post.
Counsel has also emphasized upon the fact that in the initial response
which was received from the petitioner, she did not disclose the fact that
she had been selected and had joined as Additional District Judge in the
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Delhi Higher Judicial Services on 26.09.2015. This fact was disclosed in
her 3rd communication which was received by the High Court on
22.11.2018 and in that communication also, there was no specific and
express willingness to join HSJS. With the High Court coming to know
about her joining the Delhi Higher Judicial Services in 2015, her request
cannot be accepted for issuing her the appointment letter for the post of
Additional District Judge in the HSJS since she does not fulfill the
mandate of Article 233 of the Constitution of India as interpreted and held
by the Hon'ble Supreme Court in Dheeraj Mor's case (supra), where it has
categorically been mentioned that for direct recruitment as District Judge
against the quota fixed for Advocates/Pleaders, an incumbent has to be a
practising Advocate and must be in practice as on the cut off date and also
at the time of appointment, he must not be in Judicial Services or other
services of Union and the State. This, she states with reference to para 45
of the said judgment, which according to her puts a seal of dis-entitlement
on the claim as made by the petitioner. If the mandate under the
Constitution is such, the petitioner cannot be granted the claim as has been
prayed and projected. Prayer has, thus, been made for dismissal of the writ
petition.
10. We have considered the submissions made by the learned
counsel for the parties and with their assistance have gone through the
pleadings and the records of the case.
11. The facts as have been narrated above being undisputed are
not being again reiterated here as it would be sheer repetition thereof
except for mentioning that the petitioner was held eligible for
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consideration for appointment to the post of Additional District Judge,
HSJS and was placed at Sr. No.8 in the select list against the eight posts of
General category which were advertised. Because of the pendency of the
writ petition of one Nidhi (supra), petitioner who was at No.8 i.e. the last
of the candidates in the General category, was not offered appointment to
the post and this post was kept vacant to await the outcome of the writ
petition. The other selected candidates joined the service in April, 2014 as
Additional District Judge in the State of Haryana.
12. In the meanwhile, the selection process for Delhi Higher
Judicial Services came to be finalized where the petitioner had also
participated and was selected. She joined as Additional District Judge on
26.09.2015 and is continuing as such. The writ petition was dismissed on
19.03.2018 and SLP against the said judgment of the Division Bench of
this Court was dismissed by the Hon'ble Supreme Court on 11.05.2018
clearing the way for consideration of the petitioner for appointment against
the 8th post of General category which was kept unfilled because of the
pendency of the writ petition.
Petitioner submitted a representation dated 19.04.2018
(Annexure P-2) indicating the change of address from Chandigarh to Delhi
and her interest in pursuing her claim for appointment to the said post.
The High Court responded to the said communication dated 18.09.2018
(Annexure P-4), whereby she was given an option as to whether she was
interested to join HSJS in case the post is offered to her now. She
responded through a communication dated 08.10.2018 (Annexure P-3) by
submitting that option for joining HSJS be kept open, which request on
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consideration for keeping the option open was rejected and conveyed to
the petitioner on 06.11.2018 (Annexure P-5). Thereafter, another
representation was received from the petitioner dated 22.11.2018
(Annexure P-6) where, for the first time, she disclosed about her having
joined the Delhi Higher Judicial Services on 26.09.2015 and continuing
there, where again it was mentioned that the option for joining HSJS may
be kept open till the post is offered to her and intended to send her
willingness through proper channel. The said representation of the
petitioner dated 22.11.2018 (Annexure P-6) was rejected by the High
Court and the decision was communicated on 07.12.2018 (Annexure P-7).
13. These factual aspects make it amply clear that there has been
an indication on the part of the petitioner showing her inclination but in
none of these communications, she had, in categoric and clear terms, stated
that she is willing to join HSJS. What was expected and enquired of her
was a simple response as to whether she was willing to join HSJS in case
the post is offered to her. A categoric 'Yes' if she was interested was
expected of her which she failed to state in all her communications. The
language used in the representations received from her is evasive and non-
committal leading to the High Court to a conclusion that the petitioner is
probably not interested and the reason was apparent that she had already
joined the Delhi Higher Judicial Services in the year 2015 and had been
continuing there. The decision of rejection of her option of being kept
open to join, therefore, appears to be quite justified.
14. In any case, in the light of the petitioner having joined the
Delhi Higher Judicial Services, she would ceased to be eligible for
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appointment to the post of District Judge as provided for under Article 233
of the Constitution of India, which aspect has been interpreted by the
Three Judges' Bench of the Hon'ble Supreme Court in Dheeraj Mor's case
(supra), where, in para 45, it has been held as follows:-
"45. In view of the aforesaid discussion, we are of the
opinion that for direct recruitment as District Judge as
against the quota fixed for the advocates/pleaders,
incumbent has to be practicing advocate and must be in
practice as on the cutoff date and at the time of
appointment he must not be in judicial service or other
services of the Union or State. For constituting
experience of 7 years of practice as advocate,
experience obtained in judicial service cannot be
equated/combined and advocate/pleader should be in
practice in the immediate past for 7 years and must be in
practice while applying on the cutoff date fixed under
the rules and should be in practice as an advocate on the
date of appointment. The purpose is recruitment from
bar of a practicing advocate having minimum 7 years'
experience." (highlighting is ours)
In para 47, the reference to the Larger Bench was answered as
follows:-
"(i) The members in the judicial service of the State can
be appointed as District Judges by way of promotion or
limited competitive examination.
(ii) The Governor of a State is the authority for the
purpose of appointment, promotion, posting and
transfer, the eligibility is governed by the Rules framed
under Articles 234 and 235.
(iii) Under Article 232(2), an Advocate or a pleader
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with 7 years of practice can be appointed as District
Judge by way of direct recruitment in case he is not
already in the judicial service of the Union or a State.
(iv) For the purpose of Article 233(2), an Advocate has
to be continuing in practice for not less than 7 years as
on the cutoff date and at the time of appointment as
District Judge. Members of judicial service having 7
years' experience of practice before they have joined the
service or having combined experience of 7 years as
lawyer and member of judiciary, are not eligible to
apply for direct recruitment as a District Judge.
(v) The rules framed by the High Court prohibiting
judicial service officers from staking claim to the post of
District Judge against the posts reserved for Advocates
by way of direct recruitment, cannot be said to be ultra
vires and are in conformity with Articles 14, 16 and 233
of the Constitution of India.
(vi) The decision in Vijay Kumar Mishra (supra)
providing eligibility, of judicial officer to compete as
against the post of District Judge by way of direct
recruitment, cannot be said to be laying down the law
correctly. The same is hereby overruled." (highlighting
is ours)
15. In the light of the above, it is clear that a candidate is not only
required to be qualififed on the last date of receipt of the applications i.e.
the cut off date fixed under the Rules which mandate experience of 7 years
of practice as an Advocate but is continuing to be a practising Advocate
on the date of appointment. A candidate who might be eligible on the cut
off date being an Advocate with 7 years practice but at the time when the
appointment is to be made as a District Judge, if he has joined service with
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Judiciary or other service of the Union or State is not eligible to be
appointed as District Judge by way of direct recruitment.,
16. Petitioner, being in service as an Additional District Judge in
the Delhi Higher Judicial Services, would not be eligible for appointment
as District Judge and thus, cannot be granted the relief as has been
claimed.
17. Finding no merit in the present writ petition, the same stands
dismissed.
(AUGUSTINE GEORGE MASIH)
JUDGE
30.09.2022 ( LALIT BATRA)
Harish JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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