Punjab-Haryana High Court
Deepak Makkar vs State Of Haryana And Ors on 5 July, 2024
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
Neutral Citation No:=2024:PHHC:083610-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA-1187-2024
Deepak Makkar ......Appellant(s)
Versus
State of Haryana and others ......Respondent(s)
(2) LPA-1200-2024
Industrial Training Officers Welfare Association Haryana ......Appellant(s)
Versus
State of Haryana and others ......Respondent(s)
Reserved on: 13.05.2024
Pronounced on: 05.07.2024
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA,
ACTING CHIEF JUSTICE
HON'BLE MS.JUSTICE LAPITA BANERJI
Present:- Mr. Amandeep Singh Talwar, Advocate for the appellants.
Mr. Deepak Balyan, Addl. AG, Haryana.
*****
G.S. Sandhawalia, Acting Chief Justice
1. Present two letters patent appeals are directed the judgment of
learned Single Judge whereby he dismissed two civil writ petitions i.e. CWP
No.5883 of 2016 and CWP No.29922 of 2017.
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2. Challenge in the first writ petition i.e. CWP No.5883 of 2016 out
of which LPA No.1200 of 2024 arises was to the order dated 14.05.2007
whereby the private respondent namely Sanjeev Sharma had been appointed
on transfer basis as Assistant Director(Technical)/Principal, ITI, Group-A,
who had been earlier working as Assistant Project Officer in the Renewable
Energy Department, Haryana. The writ petition was in the form of quo
warranto filed by the Association at a belated stage after the said respondent
had come into the zone of promotion for the post of Deputy Director, which he
was granted on 04.10.2016 and which order has been placed on record by the
respondents.
3. Similarly CWP No.29922 of 2017, from which LPA-1187 arises,
was filed by the appellant Deepak Kakkar challenging the said order of
appointment of the year 2007 and his further promotion to the post of Deputy
Director and seeking reversion of the private respondent to his parent
department and for directing the respondents to appoint the writ petitioner on
the post of Assistant Director (Technical)/Principal, Industrial Training
Institute from the date the private respondent had been appointed alongwith all
consequential benefits.
4. The learned Single Judge has rightly repelled the arguments as
such at the belated stage pertaining to the appointment and promotions as
such. The reasoning which weighed with the learned Single Judge was that
Rule 9 (c) of the Haryana Industrial Training and Vocational Education
Department (Group A) Service Rules, 1989 (for short '1989 Rules') provided
promotion by way of transfer or deputation of an officer/official already in the
service of any State Government or the Government of India. The argument
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that the said respondent did not have the qualifications as such was repelled
and it was accordingly held that he had been further promoted as Deputy
Director on 04/05.10.2016 and additional Director on 29.03.2022 and there
was no basis to contend that he has usurped the office or that the appointment
was in violation of the 1989 Rules.The argument that approval of the Haryana
Public Service Commission had not been taken was repelled on account of the
fact that the requirement was of consultation and not approval and by placing
reliance upon the judgment of the Apex Court in the case of State of U.P. Vs.
Manbodhan Lal Srivastava, 1955 SCR 533. The challenge as such raised on
account of the lack of consultation was, accordingly, repelled.
5. Similarly, while dealing with the writ petition filed by the
appellant Deepak Makkar, it was noticed that while considering the claim of
the said writ petitioner who had been recommended by the Minister
concerned, the Chief Minister was not agreed with the name of the writ
petitioner and approved the name of the private respondent. The writ petition
being filed 10 years later for setting aside the appointment as well as
promotion of the private respondent and as noticed the said respondent having
earned another two promotions, to the post of Deputy Director on 04.10.2016
and Additional Director on 29.03.2022, were the factors which weighed with
the learned Single Judge to dismiss the writ petition on the ground that the writ
petitioner was aware of the appointment and had not challenged the same and
chosen to live with it and now could not after 10 years take up the plea in the
writ petition of quo warranto. Reliance was placed upon the judgment of the
Apex Court passed in State of Jammu & Kashmir Vs. R.K. Zalpuri and
others, (2015) 15 SCC 602 that a person cannot be permitted to wake up from
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slumber to approach the Writ Court, which was a cause of dismissal as such
and whereas the case in hand is worse to the extent that the writ petitioner was
also an aspirant to the said post as pleaded in his own writ petition.
6. It is settled principle of law that the issue of seniority and service
disputes are to be adjudicated at the earliest. Reliance can be placed upon the
P.S.Sadasivaswamy Vs. State of Tamil Nadu 1976(1) SLR 53wherein the
Apex Court considered the question of limitation in service matters and held
that entertaining such petitions which are patently stale, impede the working of
the Courts. In P. Chitharanja Menon & others Vs. A. Balakrishnan and
others 1977 (2) SLR 289, a three Judges Bench of the Hon'ble Apex Court
held that once the legality of the promotion made in 1962 had not been
challenged then the validity of the Government order in 1969 could not be
challenged by filing a writ petition in the year 1972. The present case is also
somewhat similar. The Apex Court in Shiba Shankar Mohapatra Vs. State
of Orissa 2011 (1) RSJ 624 has held that in seniority matters, delay should
not be beyond a period of 3 years and the reasons for not approaching the
Court should be explained. The relevant observation reads as under:
"29. Thus, in view of the above, the settled legal
proposition that emerges is that once the seniority had been fixed and
it remains in existence for a reasonable period, any challenge to the
same should not be entertained. In K.R. Mudgal (supra), this Court
has laid down, in crystal clear words that a seniority list which
remains in existence for 3 to 4 years unchallenged, should not be
disturbed. Thus, 3-4 years is a reasonable period for challenging the
seniority and in case someone agitates the issue of seniority beyond
this period, he has to explain the delay and laches in approaching the
adjudicatory forum, by furnishing satisfactory explanation."
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7. In such circumstances, the reasoning as such which weighed with
respondent-State to consider the case of the private respondent on merits does
not suffer from any infirmity.
8. It is not disputed that the post of the Assistant Director was to be
filled up by vide Public Notice dated 08.10.2006 (Annexure P-1) which was
repeated two times and by extending the last date as per the written statement
filed. Only 11 applications had been received and 7 candidates had been
found eligible. The writ petitioner/appellant Deepak Kakkar was also
considered an eligible candidate. A High Level Selection Committee was
constituted by the Government in the chairmanship of the Financial
Commissioner and Principal Secretary, Government of Haryana, Industrial
Training and Vocational Education, Haryana alongwith the Director, Industrial
Training and Vocational Education, Haryana and Joint Director Technical,
Technical Education, Haryana and Joint Director Administration, Industrial
Training & Vocational Education, Haryana. Only two candidates were found
suitable for selection/appointment and the writ petitioner/appellant was also
interviewed by the said Committee but was not recommended as a suitable
candidate. In the written statement it has further been averred that the Minister
concerned had recommended the name of the writ petitioner in place of one
recommended candidate namely Smt. Anshuka Bansal. An objection has been
raised by filing writ petition after a period of 10 years. The fact that the Chief
Secretary had also been asked as to whether the approval of the Public Service
Commission was to be taken, who had replied in the negative on 25.01.2016
(Annexure R-7/10) when the dispute of seniority had arisen of the private
respondent at a subsequent stage.
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9. The challenge by taking the plea of quo warranto also does not
cut much ice as admittedly it is a clearly discretionary jurisdiction and the
bonafides of the litigant has to be examined, as held in A.N. Sashtri vs. State
of Punjab and others, (1988) Supp SCC 127. Admittedly, the aggrieved
person, the non-selected candidate is the writ petitioner and, therefore, we
have to keep this aspect in mind as per the principle laid down in R.K. Jain vs.
Union of India, (1993) 4 SCC 119 as the matter pertains to a service dispute
while exercising our jurisdiction under the writ of quo warranto. In Dr. B.
Singh vs. Union of India and others, (2004( 3 SCC 363, it was held that
meddlesome interlopers, wayfarers have no public interest except for personal
gain or private profits and the Court has to satisfy about the credentials of such
applicants. In B. Srinivasa Reddy vs. Karnataka Urban Water Supply &
Drainage Board Employees' Association and others, (2006) 11 SCC 731, the
appointment of the Chief Engineer as a Managing Director was subject matter
of challenge by the Association. The challenge as such had been repelled by
the Apex Court, who had examined the issue and set aside the order of the
High Court by holding that the writ petition is not maintainable. The said
principles would be directly applicable in the present case.
10. It is settled principle of law that having unsuccessfully sought
consideration for the selection and thereafter to seek consideration at a belated
stage would also be applicable against the private writ petitioner and,
therefore, the dismissal of the writ petition cannot be said to be suffering from
any infirmity. Challenge at the hands of the Association has also been made
by referring to the Rules in question, which itself provide that recruitment to
the post of an Assistant Director/Principal (Technical), ITI, Group A
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Junior/Assistant Apprenticeship Advisor (Technical) Group A Junior was to
be made by way of promotion 50% from amongst Assistant Director
(Technical) Group B/Principal (Technical), ITI Group B and 50% by direct
recruitment or by transfer or deputation of an officer/official already in the
service of any State Government or the Government of India. The relevant
Rule 9 (c) of the 1989 Rules reads as under:-
"9.(1) Recruitment to the Service shall be made-
(c) In case of Assistant Director/Principal (Tech.), I.T.I.Group A
Junior/Assistant Apprenticeship Advisor (Technical)Group A Junior-
(i) 50% promotion from amongst Assistant Director(Technical)
Group B/Principal (Technical), I.T.I. Group B; and
(ii) 50% by direct recruitment, or
(iii) By transfer or deputation of an officer/official already in the
service of any State Government or the Government of India."
11. It is not disputed that there were four vacant posts which were
sought to be filled up and, therefore, as per the above said rule once there was
an approval to fill up the said post way of appointment of the private
respondent way-back on 09.05.2007 on transfer basis, it cannot be said to be
suffering from any infirmity as noticed by the learned Single Judge. Appendix
B as reproduced by the learned Single Judge also provide 5 years experience
as Assistant Director in the case of promotion whereas for transfer and
deputation, with which we are concerned, requisite degree in Bachelor of
Engineering or its equivalent was the requirement alongwith 5 years
experience in supervisory capacity in a workshop or in an organization of
repute. Appendix B reads thus:-
Appendix 'B'
Serial Designation of posts Academic qualification Academic
No. and experience, if any, qualification and
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for direct recruitment experience, if
any, for
appointment
other than by
direct
recruitment
1 to 3 xxx xxx xxx
4 Assistant Director (i) Degree in Bachelor of Five years
(Technical)/Principa Engineering or its experience as
l Industrial Training equivalent from a Assistant
Institute Group-A recognized university or Director/Principa
institution; l (Technical)
(ii) Five years experience I.T.I. Group-B
in supervisory capacity in
a workshop or in an
organization of repute;
(iii)Teaching experience
in Government Technical
Institutions shall be
considered as an
additional qualification;
and
(iv)Adequate knowledge
of Hindi
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12. It is not the case of the appellants that the private respondent did
not have the requisite qualification, since he was working as Assistant Project
Officer in the Renewable Energy Department.
13. A perusal of the proceedings of the High Powered Committee
would go on to show that there was no issue regarding the case of the private
respondent, but there was an issue regarding Smt. Anshuka Bansal since she
was working with the Sant Longowal Institute of Engineering & Technology
at Sangrur in the State of Punjab. The recommendation made by the Minister
that he did not agree with the recommendation of the Committee of giving
relaxation of Rule 17 in her case was taken to the Chief Minister who had only
approved the appointment of private respondent Sanjeev Sharma and not of
the writ petitioner Deepak Makkar. The matter had also been brought to the
notice of the Chief Minister for filling up the post of Assistant Director at the
earliest and the provisions had been duly complied with and notified and there
was no such violation while filling up the said posts by way of transfer.
14. The argument, thus, which has now been raised that the private
respondent does not have 5 years' experience as Assistant Director/ Group B
post is not acceptable, since it would be in the case of 50% reserved for
promotion, as from Appendix B it is crystal clear that the academic
qualification is for other than by direct recruitment to follow the said path. The
rule as such provides 50% posts to be filled up by way of direct recruitment by
resorting to transfer or deputation for which academic qualification have been
duly mentioned. The private respondent, thus, had been called for interview
being found duly eligible and thereafter was selected for appointment and at
no stage the writ petitioner-Deepak Kakkar and the Association had raised any
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dispute regarding the said proposal. Now at the belated stage after a decade
when the private respondent was on the verge of earning a promotion, the
issue has been sought to be raked up.
15. In such circumstances, the view which has been taken by the
learned Single Judge is not liable to be interfered with at the hands of the
Association or the writ petitioner/appellant Deepak Kakkar, who himself was
an aspirant for the post in question. Resultantly, the present appeals are
dismissed in limine.
(G.S. SANDHAWALIA)
ACTING CHIEF JUSTICE
(LAPITA BANERJI)
05.07.2024 JUDGE
Naveen
Whether speaking/reasoned : Yes
Whether Reportable : No
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