Shakti Raj vs State Of Haryana And Ors
2023 Latest Caselaw 1283 P&H

CWP-17431-2018                                 1


             IN THE HIGH COURT OF PUNJAB AND HARYANA
                          AT CHANDIGARH

                                                                 CWP-17431-2018
                                                    Date of Decision : 20.01.2023

Shakti Raj                                                 ...... Petitioner

                                Versus

State of Haryana and others                                 ...... Respondents


CORAM : HON'BLE MR. JUSTICE VIKRAM AGGARWAL


                         ***

Present : Mr. Anurag Goyal and Mr. Jawahar Lal Goyal, Advocates for the petitioner.

Mr. Saurabh Mohunta, DAG, Haryana.

Mr. Shreenath A.Khemka, Advocate for respondent No.3.

***

VIKRAM AGGARWAL, J

1. By way of the present writ petition, the petitioner seeks quashing of

the appointment of respondent No.3 to the post of Junior Draftsman in the

Department of Town & Country Planning, Government of Haryana. He also seeks

recommendation of his name for the said post as also an inquiry into the process of

appointment of respondent No.3.

2. Vide advertisement dated 01.12.2015 (Annexure P-1), online

applications were invited by respondent No.2 i.e. Haryana Staff Selection

Commission for recruitment to different posts. There were 50 categories under

which different posts were advertised in the State of Haryana. Category No.8

pertained to 10 posts of junior draftsman from different categories viz. general,

SC, BCA etc. and included two posts of junior draftsman for the Scheduled Castes

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category. These posts are the subject matter of the present petition. The petitioner

applied under the Scheduled Castes category for the post of junior draftsman by

way of an online application (Annexure P-2). Written examination was conducted

on 18.05.2017 in which the petitioner duly appeared and succeeded vide result

dated 10.08.2017 (Annexure P-3). Initially four candidates were called for

interview vide notice dated 29.12.2017 (Annexure P-4), being twice the number of

vacancies advertized for the posts of junior draftsman. The cut of marks were

indicated as 94 in the said notice. Subsequently, two more persons including the

petitioner were called for interview telephonically and thereafter the result was

declared on 15.05.2018 (Annexure P-5). The petitioner did not succeed but on a

perusal of the result he found that two candidates including respondent No.3 were

amongst the initial four candidates called for interview despite obtaining 94 marks

in the written examination whereas the petitioner had obtained 98 marks in the

written examination. The petitioner alleges that the whole exercise was carried out

by the respondents with a view to illegally select and appoint respondent No.3

despite the fact that she had got lower marks in the written examination than the

petitioner and was not eligible to be called for the interview.

3. The writ petition has been opposed by the respondents. A short reply

has been filed by respondent No.1 stating that appointment letters had been issued

by respondent No.1 on the basis of the recommendations made by respondent

No.2 and, therefore, it had no role to play in the matter.

4. Respondent No.2 has filed a separate reply wherein it has been

averred that during scrutiny of documents after the declaration of the result of the

written examination, the petitioner was found to be not eligible as in his

experience certificate, his salary was not mentioned. Similar was the case of one

Mr. Raj Pal and accordingly four eligible candidates were shortlisted for interview

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which included respondent No.3. However, lateron, by adopting a fair and

transparent procedure, the petitioner and Raj Pal were also called for interview

which was held on 12.01.2018 but the petitioner could not be selected as he got

lower marks in the interview. The petitioner was accordingly kept in the waiting

list. The petitioner obtained 110 marks in total which included 98 marks in the

written examination and 12 marks in the interview whereas respondent No.3

obtained 114 marks in total which included 94 marks in the written examination

and 20 marks in the interview. It has also been averred that once the petitioner

had appeared in the interview and had participated in the entire process, it was not

open for him to subsequently challenge the selection process.

5. Respondent No.3 has also filed her separate written statement raising

primarily the same objection that once the petitioner had participated in the

selection process, it was not open for him to challenge the same once he was not

appointed. On merits also, the writ petition has been opposed.

6. I have heard learned counsel for the parties and have perused the case

file.

7. Learned counsel for the petitioner has strenuously urged that the

appointment of respondent No.3 is illegal and that the same, therefore, deserves to

be set aside. It has been submitted that as per the advertisement, no experience

was required in case of a candidate being intermediate in architecture and the

experience was required only in case the candidate was having a diploma. He has

referred to the various documents annexed by him with the writ petition and has

contended that the sequence of events would show that the appointment of

respondent No.3 is illegal and arbitrary. It has been submitted that the respondents

manipulated the entire process of appointment with a view to appoint respondent

No.3 and deny the benefit of appointment to meritorious candidates like the

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petitioner who deserved to be appointed on the basis of their performance in the

examination.

8. Learned counsel for the State has sought to justify the process

adopted by the State and the consequential appointment of respondent No.3 on the

lines of the pleadings of the State in the written statement.

9. Learned counsel for respondent No.3 has, with equal vehemence,

opposed the writ petition. It has been submitted that Raj Pal who was one of the

candidates who had not been called for interview had approached this Court by

way of CWP No.138 of 2018, titled as Raj Pal vs. Haryana Staff Selection

Commission which was disposed of vide order dated 10.01.2018 and Raj Pal was

ordered to be interviewed. It has been submitted that the petitioner has not

disclosed about the said fact in the writ petition and has, therefore, tried to mislead

the Court. It has further been contended that once the petitioner had participated

in the entire selection process, it would not be open for him to challenge the same

subsequently. Learned counsel for respondent No.3 has also submitted that if the

case of the petitioner is found to be having merit, the candidature of respondent

No.3 should be protected and since respondent No.3 has been working on the said

post for a number of years, now, her appointment should not be set aside. In

support of his contentions, learned counsel has placed reliance upon the judgments

of Hon'ble Supreme Court in Madan Lal and others vs. The State of Jammu &

Kashmir and Ors. 1995 SCC (3) 486, Vikas Pratap Singh and Ors. vs. State of

Chhattisgarh and Ors, decided on 09.07.2013 in Civil Appeal Nos.5318-5319 of

2013 and Ran Vijay Singh & Ors. vs. State of U.P. & Ors., decided on

11.12.2017, in Civil Appeal No.367 of 2017. Learned counsel for respondent

No.3 has lastly submitted that there are a number of posts vacant in the general

category and, therefore, the petitioner can be adjusted qua the general category

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post. Reference in this regard has been made to order dated 22.12.2020, passed in

CWP-381-2018, titled as Sumit Kumar vs. State of Haryana & Anr.

10. After hearing learned counsel for the parties and perusing the case

file, this Court is of the opinion that respondent No.2 adopted a totally illegal

procedure with a view to appoint respondent No.3. It has to be borne in mind that

respondent No.2 was dealing with public appointments and was expected to adopt

a fair and transparent procedure without extending any favour to anyone.

However, instead of adopting a transparent procedure, respondent No.2

manipulated the process thereby not only commiting an illegality but also shaking

the trust of the common man. The advertisement (Annexure P-1) was issued on

01.12.2015 for 50 categories of posts. Category No.8 dealt with 10 posts of junior

draftsman out of which two posts were reserved for the scheduled castes category.

The relevant part of the advertisement dealing with category No.8 reads as under:-

Cat. No.8.

10 post of Junior Draftsman (Re-advertised) (GEN=2, SC=2, BCA=2, BCB=2, ESM GEN=1, ESM BCA=1, Total=10 (PHC OH=1) E.Q.

(i) Matric or its equivalent.

(ii)Intermediate in Architecture;

OR

Successful completion of three years degree course in Architecture from an institution;

OR

Three years diploma in Architectural Assistantship from an Institution with two years experience as a draftsman in an Architectural or Town Planning Office; or Diploma certificate in Civil Draftsmanship from an institution with three years experience in an Architectural or Town Planning Office;

(iii) Hindi/Sanskrit up-to Matric standard or higher education.

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Age: 17-42 years Pay Scale: `9300-34800+`4000 GP

11. A perusal of the aforesaid would show that there were three

educational qualifications, the first being matric or its equivalent. The second

qualification had three parts. The first part was Intermediate in Architecture, the

second was three years degree course in Architecture and the third was three years

diploma in Architectural Assistantship with two years experience as a draftsman

or diploma in Civil Draftsmanship with three years experience. The third basic

educational qualification was Hindi or Sanskrit upto Matric standard or higher

education. It, therefore, means that if someone was an intermediate in

Architecture or was having a three years degree course in Architecture, there was

no requirement of experience. The requirement of experience was three years

diploma in Architectural Assistantship or a diploma in Civil Draftsmanship.

Admittedly, the petitioner was Intermediate in Architecutre which is clear from his

form (Annexure P-2) No doubt, the said form also mentions about experience as a

draftsman and experience in Architecture or Town Planning which also the

petitioner had. However, the plain language of the advertisement shows that there

was no requirement of experience if a person was an Intermediate in Architecture.

The result of the written examination was declared on 10.08.2017 vide Annexure

P-3 and the petitioner who had Roll No.1150800074 was found to have cleared the

examination. It was mentioned that two times the eligible candidates against the

advertised posts had been called for scrutiny of documents. The petitioner was

called for scrutiny of documents but was not called for interview initially.

However, it appears that once, one Raj Pal knocked the doors of the Court vide

CWP No.138 of 2018, which was allowed vide order dated 10.01.2018, the

petitioner alongwith Raj Pal was called for interview telephonically. The final

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result was declared after the interview and the detailed result was also declared on

28.03.2018 wherein the petitioner was kept in the waiting list and two candidates

namely Suman Devi and respondent No.3 were selected. Raj Pal who had filed

CWP No.138 of 2018 could not make it even in the waiting list. When the

petitioner obtained the detailed result which is on record as Annexure P-5, he

found that respondent No.3 had obtained 94 marks in the written examination and

the petitioner had obtained 98 marks and still he was not called for interview. His

apprehension was correct because the record shows that this was deliberately done

by respondent No.2. In its written statement, respondent No.2 has stated that the

petitioner initially was not called for interview because he was not eligible as his

experience certificate did not depict his salary but lateron adopting a transparent

procedure he was called for interview. Respondent No.2 very cleverly concealed

the factum of Raj Pal having filed CWP-138 of 2018 vide which `50,000/- costs

were imposed upon respondent No.2. The order dated 10.01.2018, passed in CWP

No.138 of 2018 (Raj Pal vs. Haryana Staff Selection Commission) reads as under:-

"1. In compliance of the previous order, original record has been produced in Court by Ms. Shruti Jain Goyal. A perusal of the record shows that the petitioner makes the cut above the last candidate called for interview. His case has been rejected on a frivolous and untenable ground that of the two certificates of experience produced by the petitioner from 'Jaiswal & Associates', one bears the rubber stamp of the firm while the other does not. Even if the one bearing rubber stamp is accepted and the other ignored, the result would be the same. They both certify that the petitioner worked in the organization from 05.07.1995 to 17.07.1997 as an Architectural Assistant.

2. Ms. Goyal on instructions from the Haryana Staff Selection Commission submits that the certificates do not disclose the registration number of the firm of Architects run in the name and style of 'Jaiswal & Associates'. This is an argument only to be noticed and

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rejected. Law does not require an architect and his associates should form a company or a firm which is registered under the regulatory laws.

3. Having heard learned counsel for the parties and keeping in view the fact that the petitioner is higher in merit in the written examination than the last candidate called for interview, I deem it appropriate to allow this writ petition. The decision debarring the petitioner in the interview process is held to be an utterly perverse decision and the same is not sustainable and is accordingly quashed. The petitioner shall be interviewed on 12.01.2018 for the post of Junior Draftsman advertised in the Town & Country Planning Department, Haryana.

4. Since the ground taken for ignoring the petitioner is wholly wanton and fallacious, the Haryana State Selection Commission is directed to pay `50,000/- as costs to the petitioner at the time of interview for needlessly compelling him to approach this Court and waste its time. Costs are made recoverable by the respondent from those who took the impugned decision without any application of mind.

5. It will be open to the respondent in the event of appointment of the petitioner, to verify the aforesaid certificates, in case of doubt.

6. A copy of this order be given to the learned counsel under the signature of the Bench Secretary."

12. The position which finally emerges is that initially four candidates

were called for interview i.e. Suman Devi Roll No.1150800127 who got 102

marks in the written examination; Sanjay Kumar Roll No.1150800298, who

had/got 94 marks in the written examination; Neha Chandel (Respondent No.3)

Roll No.1150800307, who got 94 marks in the written examination and Raman

Kumar Roll No.1150800511, who got 98 marks in the written examination. The

petitioner and Raj Pal were left out on the ground that they were not eligible as

their experience certificate did not mention the salary. They were left out wrongly

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because in so far as the petitioner is concerned there was no requirement of

experience once the petitioner was an Intermediate in Architecture. Even in the

case of Raj Pal, the action of respondent No.2 in not calling him for interview was

adversely commented upon by this Court vide order dated 10.012018 in CWP

No.138 of 2018 and the said order has also attained finality. It is, therefore, very

clear that respondent No.2 adopted a completely illegal and arbitrary procedure.

Subsequently, respondent No.2 had to call the petitioner for interview since Raj

Pal was also called but it exercised the discretion vested in it and awarded less

marks to the petitioner in the interview than respondent No.3 so that she could be

selected. Since only four persons were to be called for interview, had respondent

No.2 acted fairly, respondent No.3 would not have been eligible for being called

for the interview. Once she was not eligible for being called for interview, her

subsequent selection and consequential appointment would also be illegal.

13. This Court, for once, was inclined to refer the matter to some

Centralized Investigating Agency which could examine the records of respondent

No.2 to find out more such illegalities and irregularities. However in the case of

Dr. Manik Bhattacharya vs. Ramesh Malik & Ors. 2022 (4) SCT 373, the

Hon'ble Supreme Court has held that CBI probe should not be ordered straight-

away in matters of illegal public appointments unless allegations are so

outrageous and perpetrators of the alleged offences are so powerful that

investigation by the State police would be ineffectual. This Court, therefore,

chooses not to adopt the said course of action.

14. I have gone through the judgments relied upon by learned counsel for

respondent No.3. In Madan Lal's case (supra), it was held by the Hon'ble

Supreme Court that once someone takes a chance and appears in the selection

process, it would not be open for such a candidate to challenge the selection

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process only because the result of the interview is not palatable to him and he had

not succeeded in the same. This judgment would not help respondent No.3 and

will not demolish the case of the petitioner because in the present case, the

petitioner was not aware of the manipulation committed by respondent No.2 and it

is only when he got the complete result that he found out that respondent No.3 had

obtained 94 marks in the written examination whereas he had obtained 98 marks

and he had, therefore, been deliberately left out on a flimsy ground. Once the

petitioner was not aware of what had happened, it was not expected from him to

have raised any dispute or to have protested earlier. In Vikas Pratap Singh's

case (supra), the Hon'ble Apex Court held that ouster of persons from service after

successful training and having served the State for more than three years would

cause undue hardship to them and ruin their lives and careers and they would also

suffer an irreparable loss as they had become over-age and had lost the

opportunity to appear in the subsequent examination. In Ran Vijay Singh's case

(supra), also a similar view was taken.

15. Though there is no dispute in the ratio of law laid down in the said

judgments, these would also not come to the aid of respondent No.3 as the

appointment of respondent No.3 is completely illegal as she was not eligible to be

called for interview. Merely because respondent No.3 has now served for three

years would not make her appointment legal. In the judgments under reference,

there was no such illegality which had been committed. In both cases, the issue

was of re-evaluation and re-appreciation of the answer sheets and there was no

manipulation of records and consequently no illegal appointments. No illegality

can be justified by mere efflux of time. This Court has, therefore, no hesitation in

holding that the appointment of respondent No.3 was illegal. No direction

regarding adjusting the petitioner against a general category post can also be given

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as the direction in CWP-381 of 2018 was on the basis of the statement given by

the State counsel and not otherwise.

16. In view of the afore-mentioned facts and circumstances, the writ

petition is allowed. The appointment of respondent No.3 is set aside being illegal.

Respondent No.2 is directed to re-frame the final result and offer appointment

accordingly. Further, for having committed this illegality, this Court deems it

appropriate to impose costs of Rs.1,00,000/- on respondent No.2. It is expected

that the State of Haryana will look into the matter and fix the responsibility for the

illegality committed by respondent No.2.

                                                  (VIKRAM AGGARWAL)
                                                       JUDGE

20.01.2023
mamta


             Whether speaking/reasoned                Yes/No
             Whether Reportable                       Yes/No




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