Civil Writ Petition NO. 253 of 2010. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. 253 of 2010. [O&M] Date of Decision: 3rd March, 2010. Rajinder Kumar Petitioner through Ms. Alka Chatrath, Advocate Versus State of Punjab & Ors. Respondents through Mrs. Charu Tuli, Sr. DAG, Punjab. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. [ORAL) This order shall dispose of Civil Writ Petition Nos. 2005, 15401, 16028, 20028 of 2009, 81,141, 230, 253, 330, 340, 487, 516, 897, 1005 and 2200 of 2010 as common questions of law and facts are involved in all these cases. For brevity, the facts are being extracted from CWP No. 253 of 2010. [2]. The petitioner seeks quashing of the order-cum-notice dated 20.11.2009 [Annexure P-8] whereby his services from the post of Hindi Master are proposed to be terminated. In order to appreciate the controversy, a brief reference to the facts may be made. [3]. The petitioner belongs to Backward Class category. He possesses academic qualification of B.A., B.Ed. In response to an advertisement No. 21 dated 27.10.2006 issued by the Education Department, Government of Punjab inviting applications for 2614 posts of Lecturers/Masters/Mistresses which included 500 posts of Hindi Masters/Mistresses, the petitioner applied, competed and upon selection, was appointed vide appointment letter dated 15.07.2008 Civil Writ Petition NO. 253 of 2010. ::-2-:: [Annexure P-7]. It may be noticed here that the petitioner was selected against a post reserved for Backward Class [Male] category and on the basis of marks [65.22] secured by him, he was placed at Sr. No. 15 in the order of merit in the said reserved category against 25 reserved posts. [4]. It appears that certain candidates claiming themselves to be higher in merit approached this Court seeking directions for their appointment. These writ petitions including CWP No. 922 of 2008 [Gunja v State of Punjab & Ors.] were allowed by a Division Bench of this Court with the following directions:- “Accordingly, we allow the writ petitions, quash the impugned dated 23.01.2007 [Annexure P-12] and direct the respondents to give appointment to the petitioner as Lecturer in English, being the higher in merit than respondent Nos. 3 to 5. The respondents shall displace the candidate[s] lowest in merit in Backward Class category. Respondents, shall however, be at liberty to accommodate such displaced candidate[s] against other vacancies, if available. The petitioner shall be entitled to notional service benefits with effect from the date the candidate lower in merit than her was appointed”. [5]. In purported compliance to the above reproduced directions, the petitioner has now been served with the impugned order-cum-notice dated 20.11.2009 [Annexure P-8], inter-alia, alleging that the merit-list of the Backward Class candidates has been re-determined on the acceptance of the report of the Committee and in the revised merit-list, the petitioner being lower in merit, his name does not figure in the selection list and, thus, his services are liable to be terminated. [6]. The petitioner can not possibly respond to the impugned order-cum-notice and has directly approached this Court. [7]. Notice of motion was issued and in response thereto, the Civil Writ Petition NO. 253 of 2010. ::-3-:: respondents have filed their reply/affidavit. Learned counsel for the parties have been heard at some length and records perused. [8]. The facts are broadly not in dispute except that the respondents have reiterated that on re-examination of the records, it has been found that one candidate higher in merit than the petitioner was not given appointment. It is further averred that if the writ petitioners in all the cases are allowed to be retained in service, there are about 25 other candidates who may also stake their claim for appointment. [9]. In other words, the stand taken by the respondents is that retention of the petitioners in service would entail appointments beyond the advertised posts, namely, Hindi Teachers [18 Male BC and 9 Female BC], Punjabi Teachers [13 Male BC and 14 Female BC] and Math Masters [3 Female BC]. [10]. As may be noticed, while allowing the writ petitions filed by the candidates, who were higher in merit, this Court had expressly directed the respondents that “firstly the candidates lower in merit in Backward Class category shall be displaced. However, the respondents shall be at liberty to accommodate such displaced candidates against other vacancies, if available”. [Emphasis applied] [11]. In order to find out the possibility of compliance of the direction, reproduced above, the respondents were directed vide order dated 18.02.2010 to furnish the details of the available vacancies in the Cadre of Hindi, Punjabi and Math Masters/ Mistresses. [12]. An additional affidavit of Pankaj Sharma, Assistant Director o/o the Director, Public Instructions [S], Punjab, Chandigarh, Civil Writ Petition NO. 253 of 2010. ::-4-:: has accordingly been filed, which is taken on record. As per the averments contained in Para 2of the said affidavit, the following posts are still lying vacant in the Department:- Sr. No. Subject Total sanctioned posts in the State Number of incumbents serving Total vacant posts available in the State 1. Hindi 5557 4861 696 2. Punjabi 5967 5428 539 3. Maths 6069 5331 738 [13]. It may be seen that even applying 50% reservation etc., there are hundreds of posts lying vacant against which the petitioners can be accommodated. In other words, if the petitioner is allowed to be retained in service, there is no likelihood of depriving of any candidate higher in merit than him from appointment for want of vacancy. [14]. The next question that arises for consideration is as to whether the petitioner can claim retention in service as a matter of right? [15]. There is indeed no denial to the fact that as per the original merit-list displaced on the website or published in the Newspapers, the petitioner was amongst the selected candidates. The selection was carried out by an agency hired by the State Government. The marks secured by the petitioner are not at variance. It is not the case of the respondents that the petitioner misled or duped the authorities to secure appointment. It was on the basis of the marks secured by him that he was given appointment. It is stated that the petitioner was earlier also in Government service and he resigned from the said post so as to join as Hindi Master. It would, therefore, be too iniquitous to subject the petitioner to such an Civil Writ Petition NO. 253 of 2010. ::-5-:: extreme hardship and/or snatch the very source of survival of his family and that too for no fault attributable to him. [16]. It may be true that some of the candidates were wrongly rejected by the respondents treating them ineligible for want of up- dated Backward Class certificates, who have finally succeeded before this Court. The direction issued by the High Court to treat those candidates as eligible, therefore, should not work to the disadvantage of the petitioners. The fact that hundreds of posts are lying vacant and the Govt. Schools, especially in rural areas are suffering a lot for want of adequate teachers, it would otherwise be in the interest of student-community to retain the petitioners in service. [17]. Consequently, the writ petitions are allowed; the impugned Order-cum-Show Cause Notices dated 20.11.2009 are quashed and the respondents are hereby directed to allow the petitioners to continue against the available vacancies, however, without affecting the seniority of the candidates who have been held to be higher in merit. [18]. At this stage, Mrs. Charu Tuli, learned Sr. DAG, Punjab has apprehended and rightly so that there may be many other candidates higher in merit than the petitioners who might stake claim for their appointments. Ordinarily, no such claims at this belated stage can be entertained by a writ Court. However, there is no need to express any final opinion on this issue at this stage when no such candidate has come forward. [19]. Ordered accordingly. Dasti. March 03, 2010. ( SURYA KANT ) dinesh JUDGE