Punjab-Haryana High Court
Haryana Public Service Commission vs Shiwani Yadav And Others on 4 March, 2024
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
Neutral Citation No:=2024:PHHC:030316-DB
2024:PHHC:030316-DB
LPA-234-2023 ( O&M ) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
LPA-234-2023 ( O&M )
Date of decision : 04.03.2024
Haryana Public Service Commission
.......Appellant
Versus
Shiwani Yadav and others
....Respondents
CORAM: HON'BLE MR. JUSTICE G.S. SANDHAWALIA, ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE LAPITA BANERJI
Present: Ms. Harpriya Khaneka, Advocate, for the appellant.
Mr. Bhupinder Malik, Advocate, for respondent No.1.
Mr. Deepak Balyan, Addl. Advocate General, Haryana.
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G.S. SANDHAWALIA, ACTING CHIEF JUSTICE ( Oral )
1. The consideration being sought by the appellant - Commission in
the present appeal is to the judgment dated 06.12.2022 passed by the learned
Single Judge in CWP-10639-2022 filed by Shiwani Yadav (respondent No.1
herein).
2. The learned Single Judge has directed that the recommendation of
the writ petitioner be maintained by the Commission in the facts and
circumstances of the case, while noting that it be not treated as precedent in
any other circumstances. A further direction has been issued to accommodate
the writ petitioner against one of the vacant posts of Assistant Professor
(College Cadre) in the subject of Mathematics. The interest of the private
respondent (respondent No.5) has been protected to the extent that a post
which became vacant in the General category has been ordered to be offered to
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the candidate next in merit and in case, the private respondent is next
meritorious, his case has been ordered to be considered in accordance with
law.
3. The reason which weighed with the learned Single Judge to
exercise the extra ordinary writ jurisdiction on the ground of equity is that the
writ petitioner being appointed had joined on 10.07.2019 and by virtue of the
result being revised on 06.04.2022, the Commission as such published a notice
(Annexure P-15) that due to an inadvertent error, Roll No. 52046 was declared
qualified in General category, whereas the candidate with the said Roll number
had remained successful in BC-B category. Resultantly, the result dated
02.07.2019 was revised to the extent that Roll No. 52046 was declared
successful in BC-B category, and recommendation for Roll No. 51440, which
was issued to the writ petitioner, who was the last selected candidate of BC-B
category, was withdrawn. Accordingly, Roll No. 50951, which was issued to
the private respondent, was declared qualified in General category.
Resultantly, without any specific notice as such, the appointment of the writ
petitioner being threatened, jurisdiction of the writ court was invoked.
4. Before the learned Single Judge, an affidavit of the Joint Director
Administration, Office of the Director Higher Education, Haryana, was also
filed, wherein it transpired that the writ petitioner was still working at
Government College, Kharkhara (Rewari), in view of the interim order dated
18.05.2022 passed in the writ petition. It was also mentioned that there were
350 un-advertised posts of Assistant Professor in the subject of Mathematics,
which were lying vacant with the department, but the contest was that the writ
petitioner had no right of appointment against those posts, since the same were
not advertised. It was, thus, the contention that the recommendation of the writ
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petitioner had been withdrawn vide communication dated 18.04.2022
(Annexure A-2). The learned Single Judge, thus, came to the conclusion that
appointment of the writ petitioner was as per the recommendation of the
Commission and she was continuing in service for the last more than four
years, and more than 350 vacant posts were available. It was also observed that
the writ petitioner had no role to play in the initial result or in the revised result
and, therefore, she was to be accommodated against one of those posts which
were lying vacant. It was noticed that one Poonam Rani, who had applied in
BC-B category for being considered for appointment, had been recommended
against the General category, and subsequently through the revised result she
was reverted back to the BC-B category. She being higher in merit, the writ
petitioner's recommendation had been withdrawn. Keeping in view the
principle of equity as such, her appointment has been sustained.
5. Learned counsel for the Commission has vehemently submitted
that the Commission is under bounden duty and cannot as such recommend
more names than the posts which were advertised.
6. We are of the considered opinion that it is a case where the writ
petitioner was never at fault and she worked for more than four years and by
virtue of the interim order, as noticed by the learned Single Judge, she is still
continuing in service, which fact is also acknowledged by the State itself. The
principle of equity, thus, would come into play and we can fall back on the
judgment of the Apex Court in Vikas Pratap Singh and Ors. Vs. State of
Chhattisgarh and Ors., 2013 (14) SCC 494 to that extent. The error, if any,
was not on part of the writ petitioner. It is not a case of fraud or
misrepresentation. The writ petitioner having been recommended by the
Commission and having joined on the post cannot be as such put to
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disadvantage because of the juggling of the list at subsequent stage after a
period of more than four years. The appointment letter dated 10.07.2019
(Annexure P-9) cannot, thus, be rendered a dead letter.
7. Another aspect which is to be noticed is that the vested right as
such which has accrued to the writ petitioner was taken away without even
putting her to any notice and by publishing a notice dated 06.04.2022
(Annexure P-15) and thereafter followed up with the necessary communication
dated 18.04.2022 (Annexure A-2) inter-se the appellant and the State. The
principle of natural justice would, thus, also come into play, which has been
grossly violated by taking away her vested rights.
8. In such circumstances, we do not feel that the learned Single
Judge erred in any manner while exercising the extra ordinary writ jurisdiction
and creating the extra space as such for the writ petitioner.
9. It is also to be noticed that the State has chosen not to file any
appeal till now. Hence, the judgment dated 06.12.2022 passed by the learned
Single judge is made absolute.
10. Appeal is, accordingly, dismissed.
11. All the pending applications stand disposed of.
( G.S. SANDHAWALIA )
ACTING CHIEF JUSTICE
( LAPITA BANERJI )
JUDGE
March 04, 2024
ndj
Whether speaking/reasoned Yes
Whether reportable No
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