Rakesh Kumar vs Haryana Staff Selection ...
2023 Latest Caselaw 1162 P&H

CWP No.25036 of 2021 (O&M)                                         -1-


     IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
                 HARYANA AT CHANDIGARH

                                           CWP No.25036 of 2021 (O&M)
                                           Reserved on: 05.01.2023
                                           Date of Decision: 19.01.2023

Rakesh Kumar                                                   ...Petitioner
                                           Vs
Haryana Staff Service Commission and another
                                                             ...Respondents

CORAM: HON'BLE MS. JUSTICE JAISHREE THAKUR Present: Mr. R.N. Lohan, Advocate for the petitioner.

Mr. Harish Rathee, DAG, Haryana.

Mr. B.R. Mahajan, Senior Advocate with Ms. Nikita Goel, Advocate for respondent No.2.

-.-

JAISHREE THAKUR J.

1. The present writ petition has been filed seeking to quash order dated

06.09.2021 (P-10) passed by the Haryana Staff Selection Commission,

Panchkula whereby the petitioner has been denied appointment to the post of

Lower Divisional Clerk.

2. In brief, the facts are that Haryana Staff Selection Commission invited

applications for filling up 440 posts of Lower Divisional Clerk in Dakshin

Haryana Bijli Vitran Nigam (DHBVN)-respondent No.2 vide Advertisement

No.11/2019 dated 05.07.2019. Out of 440 posts, 77 posts were reserved for

BCB category, which were further bifurcated into 55 posts kept for

NonESM/ESP, 19 posts for ESM and 3 posts for ESP. The petitioner

belonging to BCB category chose to apply under the category of Dependent of

Ex-Serviceman for the aforesaid post and was thereafter, issued admit card

dated 17.02.2020 for the exam scheduled to be held on 25.02.2020. The

petitioner appeared in the written examination and secured 83 marks out of 90

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marks and was called for scrutiny of documents on 26.02.2021. During

security of documents, petitioner was advised to supply latest eligibility

certificate from the Zila Sainik Board, which was obtained on 09.03.2021.

Thereafter, the petitioner was advised to submit the said certificate at the time

of joining before the appointing authority. The final result was declared on

15.04.2021, however, petitioner's name did not find mention either in the

merit list of BCB category or under the category of Dependent of Ex-

Serviceman. The last candidate on the merit list in the category of BCB had

obtained 66 marks. The petitioner served a legal notice dated 12.07.2021 upon

respondent No.1 to recommend name of the petitioner for selection to the post

of Lower Divisional Clerk but claim of the petitioner was rejected by

respondent No.1 vide impugned order (Annexure P-10) in an illegal and

arbitrary manner. Hence, the writ petition.

3. Learned counsel appearing for the petitioner would contend that the

petitioner had secured 83 marks in the written examination and the candidate

having 66 marks has been selected under BCB category whereas appointment

has been denied to the petitioner. It was argued that even if the petitioner

could not be considered under the category of Dependent of Ex-Serviceman,

he still had furnished his BCB category certificate, which ought to have been

considered and offered appointment, keeping in view the fact that the

petitioner had higher merit than the last selected candidate under BCB

category. It was further argued that category of the petitioner would remain

BCB category as he belongs to the said category. In support of his contention,

counsel for the petitioner relied upon judgment rendered by a Coordinate

Bench in CWP No.21732 of 2010 titled as Braham Dutt Vs. State of Haryana

and others decided on 27.09.2013.

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4. Per contra, Mr. B.R. Mahajan, learned Senior Advocate assisted by Ms.

Nikita Goel and Mr. Harish Rathee, DAG, Haryana appearing on behalf of the

respondents would submit that the petitioner cannot be considered for

appointment under the BCB category because he had applied under the BCB-

Dependent of Ex-Serviceman category and once he had not furnished

eligibility certificate qua Dependent of Ex-serviceman, he could not be

considered for appointment. It is argued that once the petitioner had applied

under BCB-Dependent of Ex-Serviceman category, he cannot be permitted to

change his category to BCB category. In support of aforesaid contentions,

reliance has been placed upon the judgments rendered by the Hon'ble

Supreme Court in J&K Public Service Commission Vs. Israr Ahmad (2005) 12

SCC 498 and A.P. Public Service Commission, Hyderabad and others Vs. B.

Sarat Chandra and others (1990) 2 SCC 669 as well as the judgments passed

by this Court in CWP No.15119 of 2016 titled as Shashi Vs. State of Haryana

and others decided on 22.05.2018 and CWP No.18442 of 2014 titled as

Baljinder Singh Vs. State of Haryana and another decided on 28.02.2017.

5. I have heard learned counsel for the parties and with their assistance

have gone through the pleadings of the case as well as the case laws cited.

6. In every advertisement issued to fill up a vacancy/post, the government

follows the reservation policy and this is mentioned by enlisting the total

number of posts and category wise reservation for General, SC, BC, EWS,

EBPG, Ex-serviceman etc. Each candidate has to fill the form as per his/her

category for claiming the benefit of reservation. If any candidate opts a

category to which he/she does not belong, then he/she can't take the benefit of

other category at any later stage.

7. The short question involved in the instant writ petition is whether the

petitioner, who has not been able to produce eligibility certificate qua

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Dependent of Ex-Serviceman under BCB Category, the category in which he

had applied for the post of Mandi Supervisor-cum-Fee Collector, can be

considered for appointment for the posts meant for BCB (Non ESM/ESP)

Category and the answer is in negative. A perusal of the advertisement would

reveal that out of 440 posts of Lower Divisional Clerk, 77 posts were kept

reserved for BCB category, which were further bifurcated into Non ESM/ESP

(55 posts), ESM (19 posts) and ESP (3 posts). The petitioner herein chose to

compete for the 19 posts meant for ESM/DESM. A further perusal of the

advertisement would reveal that in clause 15 of Note given under para 2.4 with

heading Regulatory Framework, it is specifically mentioned that DESM

candidates of Haryana claiming benefit must have valid eligibility certificate

on last date of submission of online application form and will have to produce

the valid Eligibility Certificate from the concerned Zila Sainik Board when

called upon to do so by Haryana Staff Selection Commission. Mere dependent

certificate will not be entertained. The advertisement was published on

05.07.2019 whereas the DESM certificate attached by the petitioner was dated

29.06.2015 and the same had expired on 29.09.2016, as validity of the said

certificate is for one year, to be renewed every year. Thus, the DESM

certificate was not valid even on the day of publication of the advertisement

and therefore, on the date of submitting online application by the petitioner, he

was not having valid DESM certificate to make him eligible to compete for the

post of Mandi Supervisor-cum-Fee Collector under DESM category.

8. The argument of the petitioner by relying upon the judgment rendered by

Coordinate Bench of this Court in Braham Dutt's case (supra) that the

petitioner had secured more marks than the last selected candidate under BCB

(Non ESM/ESP) Category and therefore, he should be considered for

appointment under that category, would also fall flat. The judgment rendered

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in Braham Dutt's case (supra) is distinguishable on the facts of the instant case.

In the said judgment, there was only one post meant for ESM (BC-A) Category

and the candidate who was selected against the said post had higher marks than

the last selected candidate under BCA category and thus, the petitioner

(Braham Dutt) therein raised a plea that the candidate selected against the post

meant for ESM (BC-A) (horizontal + vertical reservation) should be considered

for appointment under BCA category (vertical reservation) so that the benefit

of horizontal reservation could be afforded to him, by laying emphasis on the

judgments rendered by the Hon'ble Supreme Court in Rajesh Kumar Daria Vs.

Rajasthan Public Service Commission and others 2007 (8) SCC 785 and by the

Division Bench of this Court in Ajit Singh Vs. State of Haryana and others

2012 (1) RSJ 433. The Coordinate Bench acceded to the plea made by the

petitioner (Braham Dutt), keeping in view the settled law that if a candidate

belonging to horizontal reservation falls within the merit of vertical reservation,

he will be considered for appointment to the posts meant for vertical

reservation and the candidate lower in vertical reserved category will make way

for him. This court has no hesitation in accepting the ratio culled out in the

aforesaid judgment. In the said case, there was no question qua eligibility and

the petitioner-Braham Dutt was seeking consideration of appointment of the

candidate selected against the ESM-BCA category (vertical reservation) as he

was falling in merit of BCA category so that the benefit of horizontal

reservation could be extended to him, being number one in the waiting list of

ESM-BCA category. However, in the instant case, the petitioner is found not

eligible for the category, he applied under, i.e. BCB-DESM category on

account of relevant dependant certificate not being available on the relevant

date. The petitioner chose to compete for the 19 posts reserved for ESM-BCB

and not against the 55 posts meant for BCB category. The reason for the same

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is obvious; to face less competition as well as the lower cut-off in merit, which

is evident from the fact that cut-off for the BCB category was 66 marks

whereas for ESM-BCB category, the cut-off was 35 marks. Though the

petitioner had secured 83 marks i.e. higher than the last selected candidate

under BCB category but since he was not having the eligibility certificate of

DESM under which category he applied, he cannot seek consideration of his

candidature under BCB Category. Since the petitioner was ineligible at the

very first stage to compete for the posts kept reserved for ESM category

(horizontal reservation), he cannot be considered under BCB category (vertical

reservation). It is also settled position of law that a candidate cannot seek

change of category he applied for, at the fag end of selection process. In this

regard reference can be made to judgment rendered in J&K Public Service

Commission's case (supra) wherein it has been held that once a candidate had

chosen to opt the category to which he is entitled, he cannot change the status

and make a fresh claim. No doubt, the petitioner is a BCA candidate but he did

not apply under the said category and chose to apply under the category of

being dependant of an Ex-serviceman.

9. In view of the aforesaid facts and circumstances, this Court does not find

any reason to interfere with the impugned order. Consequently, the instant

petition stands dismissed.

                                                 (JAISHREE THAKUR)
                                                       JUDGE
January 19, 2023
Pankaj*

                    Whether speaking/reasoned         Yes/No
                    Whether reportable                Yes/No




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