Punjab-Haryana High Court
Amit Kumar And Others vs State Of Haryana And Others on 16 December, 2023
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2023:PHHC:162963
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-14591-2023
Date of Decision: 16.12.2023
AMIT KUMAR AND OTHERS
...Petitioners
Vs.
STATE OF HARYANA AND OTHERS
...Respondents
2. CWP-27881-2023
PRADEEP KUMAR AND OTHERS
...Petitioners
Vs.
STATE OF HARYANA AND OTHERS
...Respondents
CORAM:- HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Vikas K. Sangwan, Advocate and
Ms. Monika Sangwan, Advocate
for the petitioners.
Mr. Harish Rathee, Senior DAG, Haryana.
Mr. Arvind Seth, Advocate for respondent No.9.
Mr. Pankaj Middha, Advocate
for respondent Nos. 3,12,13,17 & 27
In CWP-14591-2023.
HARSIMRAN SINGH SETHI, J. (Oral)
Written statement on behalf of respondent Nos.12 & 17 filed in
Court are taken on record. Copy of the same has been supplied to the counsel
opposite.
2. In the bunch of two petitions, the claim of the petitioners is that
they should be given appointment from the date the candidates lower in merit
than the petitioner have been granted appointment with all consequential
benefits but on notional basis.
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3. The facts leading to the filing of the present petition are that the
respondents advertised the post of Clerk by advertisement No.5 of 2019, the
said selection was finalized by the respondents in which the petitioners could
not make within the selection zone. The said selection was challenged and
the Coordinate Bench of this court while passing the order in CWP No.15672
of 2021 titled as Amit Kumar and others Vs. State of Haryana and other
connected cases, decided on 25.04.2022 set aside the selection for the post of
Clerk and directed the respondent to undertake the process of re-scrutiny and
thereafter make appointment.
4. In the fresh exercise conducted by the respondent, the petitioners
got selected. The claim of the petitioners is that though they have been
selected and appointed now but the candidates who are lower in merit were
appointed much prior to them hence, the petitioners are entitled for
appointment from the date the candidates lower in merit were appointed with
all consequential benefits such as seniority, increment etc.
5. Learned counsel for the petitioners submits that the petitioners
are not interested in getting the arrears of salary in case they are granted
appointment with retrospective effect from the date candidates lower in merit
than the petitioners have been appointed, but the pay of the petitioners be
fixed by treating their appointment from a retrospective effect by notionally
granting them increment for the period they could be not allowed to
discharge the duty on account of inaction on the part of the selecting agency.
5. Learned counsel for the respondent submit that the selection for
the post in question was completed by the respondent-Commission and it
was only due to certain irregularities of the Commission, that the selection to
the post of Clerk was redone under the orders passed by the Court in terms of
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the judgment of this Court in Amit Kumar(supra) and the petitioners have
already been appointed. With regard to the grant of benefits with
retrospective effect, the same is to be granted in accordance with rules
governing the service.
6. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
7. It is a settled principle of law that whenever a direct recruitment
is made, the appointment is to be made on the basis of merit of the competent
candidate. In the facts and circumstances of the present case, in the first
round of selection process which was undertaken by the respondent, the
petitioners could not be selected and some other candidates got selected.
Thereafter, in the fresh selection process which was undertaken in terms of
the direction given by this Court in Amit Kumar (Supra) the petitioners
were selected and some other selected candidates had to make way for them.
The petitioners have already been granted appointment in terms of the fresh
selection process undertaken by the respondent.
8. The net result is that certain candidates who are lower in merit
than the petitioners are continuing in service since their initial selection and
the claim of the petitioners is that since the appointment is to given on the
basis of the merit obtained in the selection, the petitioners are entitled for
retrospective appointment from the date candidates lower in merit have been
appointed with all consequential benefit such as seniority etc. including the
increment.
9. The said claim of the petitioners has not been controverted by
the learned State counsel by citing any rule.
10. Further, once, the non-selection of the petitioners at the first
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instance was not due to their fault but was due to the procedure adopted by
the Commission, the belated appointment of the petitioners to the post of
Clerk cannot cause them prejudice. The said prejudice has to be removed and
the same can only be done by giving appointment to the petitioners from the
date when the candidates lower in merit have been granted appointment.
11. The present petitions are allowed. The respondents are directed
to grant the petitioners the appointment from the date when the candidates
lower in merit have been granted appointment. The petitioners will also be
entitled for the increment as well as seniority from the date when the
candidates lower in merit were granted the said benefit, however, no
financial benefit will be admissible to the petitioners on account of
retrospective appointment as undertaken by the petitioner before this Court.
The same will be granted notionally only.
12. Let the present order be complied with within a period of two
months from the date of the receipt of the copy of the order.
13. At this stage, learned counsel submits that the petitioners intend
to approach the Civil Court to raise the claim for compensation for their
wrongful denial of appointment at the initial stage. For this, no liberty is
needed. In case the petitioners feel aggrieved against any action of the
respondents they are within their rights to agitate their claim in case the
same will be admissible to them under law.
13. A photocopy of the order be placed on the file of other
connected case.
(HARSIMRAN SINGH SETHI)
(JUDGE)
16.12.2023
kv
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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