CIVIL WRIT PETITION NO.13041 OF 2011 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.13041 OF 2011 Date of Decision: September 13, 2011 Dr. Krishan Kumar ...Petitioner` Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH 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? Present: Mr. R.K. Malik, Sr. Advocate with Mr. Vijay Dahiya, Advocate, for the petitioner. Mr. Sunil Nehra, Sr. DAG, Haryana for the State. Mr. H.N. Mehtani, Advocate, for respondent No.2. Mr. J.P. Rana, Advocate, for Mr. Sanjiv Bansal, Advocate, for respondent No.3. RANJIT SINGH J. Being aggrieved against the action of the respondent- Commission for changing the recommendation as earlier made and now recommending the name of the petitioner for Excise Taxation Officer by changing the earlier recommendation, the petitioner has filed this writ petition to challenge the said modified recommendation. CIVIL WRIT PETITION NO.13041 OF 2011 :{ 2 }: The facts leading to the situation can be noticed in brief. The petitioner was appointed as a Dental Surgeon on 3.7.2006, where he joined on 14.7.2006. Having worked for 3 years as a Dental Surgeon, the petitioner applied for appointment to the post of HCS(Executive Branch) & Allied Services, which were advertised during the February, 2009. The petitioner qualified in the preliminary test as well as the main written examination and was selected as HCS (Executive Branch) against the reserved post of BC category. On 12.1.2011, the petitioner was offered appointment of HCS (Executive Branch), where he joined on 18.1.2011 after resigning from his post of Dental Surgeon. The petitioner claims to have successfully completed the HCS Induction training from 17.1.2011 to 14.6.2011. Suddenly to his surprise, the respondent- Haryana Public Service Commission had modified its recommendation on 22.6.2011 upon the representation made by one Rajesh Kumar and name of the petitioner has now been recommended for Excise and Taxation Officer instead of HCS (Executive Branch), to which the petitioner was appointed and for which he had received training as well. In his place, the name of said Rajesh Kumar is recommended for appointment to the HCS (Executive Branch), whereas earlier name of Reajesh Kumar was recommended for the post of Excise and Taxation Officer. The reason in this regard as appearing from the record is that Rajesh Kumar as well as the petitioner both have got equal marks in the test i.e. 430 and Rajesh Kumar being older in age was required to be assigned the merit over the petitioner and accordingly, was to be recommended for appointment to the post of HCS CIVIL WRIT PETITION NO.13041 OF 2011 :{ 3 }: (Executive Branch). Aggrieved against this change in the recommendation, the petitioner has approached this court through the present writ petition on different grounds. Notice of motion was issued. Respondents were directed to maintain status quo. Written statement has been filed on behalf of the State as well as the Commission and the reasons which have necessitated change are now disclosed in the reply. A perusal of the reply would show that a requisition of 184 posts of HCS (Executive Branch) and Other Allied Services was sent to Haryana Public Services Commission on 19.12.2008. Out of 15 vacancies of HCS (Executive Branch) of General Category, one vacancy was to be filled up from Physically Handicapped (Blind) candidate. Three posts, thus, came into the quota of BC of Haryana in HCS (Executive Branch). 26 candidates were selected and recommended by the Commission and were given appointment by the Government. All these 26 candidates were against 26 vacancies of HCS (Executive Branch), who joined the service. On the basis of representations filed by Rajesh Kumar, Roll No.2635 and Rajiv Parshad, Roll No.2679, the matter has been reconsidered by the Commission and allocation of services to the recommended candidates have been checked. It is stated that due to an inadvertent error, proper allocation of services in respect of two candidates from BC category and two candidates of SC Category was not made. Before making re-allocation of their services, an opportunity of personal hearing was given to the affected persons on 17.6.2011 in the Commission's office. Reasons for change were, accordingly, explained to the persons who were going to be made CIVIL WRIT PETITION NO.13041 OF 2011 :{ 4 }: reallotment of their services. It is stated that two candidates bearing roll Nos.2635 and 2679 were fully satisfied with their re-allocation and both of them had given undertaking of acceptance of re- allocation of services in writing. However, the candidates bearing roll No.1937 (petitioner) and 3474 have not accepted the re-allocation. The Commission, therefore, considered the matter and decided that this was an inadvertent error because of which the result needed to be rectified. The required modification in allocation of services in respect of candidates have, accordingly, been made in view of their merit, date of birth and preferences of services exercised by them. On the basis of this modified recommendation made by the Commission, Government had decided to modify the original recommendation of HCS dated 6.1.2011 for these four candidates including the petitioner. While responding to the prayer made by the petitioner that he can be adjusted against the vacancy, which are available, it is stated that Government cannot appoint candidate beyond the advertised posts as per the provision of Haryana Civil Services (Executive Branch) and Other Allied Services and Other Services Common/Combined Examination Act, 2002 (for short '2002 Act')., which came into force w.e.f. 29.8.1989. Sub-Section 4 of the said Act provides that no appointment shall be made to any post of service to which this Act applies, beyond the number of posts advertised. It is also pointed out that the writ petition was filed to challenge the vires of the Act and the matter ultimately reached to the Hon'ble Supreme Court, where the Court has upheld to the provisions of 2002 Act with the following observations:- CIVIL WRIT PETITION NO.13041 OF 2011 :{ 5 }: “(I) The impugned Act, to the extent of its retrospectivity, except to the limited extent indicated above, does not amount to usurpation of judicial powers by the Legislature. It is not ultra vires. It has removed the basis of decisions in Hooda and Sandeep Singh's cases. (II) The Act is not violative of Article 14 and 16 of the Constitution of India except to a limited extent noticed below. (III) The first proviso to Section 4(3) to the limited extent it provides for dispending the services of candidates already appointed, is harsh, excessive, arbitrary and violative of Article 14 of the Constitution. The benefits already granted to the petitioners in Writ Petition Nos.215 to 218 and 224 of 2002 could not be taken back. To this extent, retrospectivity is ultra vires. In all other respects, it is valid. (IV) The directions of the High Court in favour of respondents Ajay Malik and Arvind Malhan subject matter of Civil Appeal Nos.3937-38 of 2001 are maintained. For the same reason, Jagdish Sharma and Mahavir Singh being higher in merit than Lalit Kumar and Virender Lather would also be entitled to similar treatment. (V) The judgments of the High Court in Civil Appeal Nos.8385 and 8393 of 2000, in view of the provisions of the Act, are set aside.” It is accordingly stated that all 26 posts of HSC (Executive Branch) have been filled and no post is left vacant. The State Government, Accordingly, has expressed its inability to offer CIVIL WRIT PETITION NO.13041 OF 2011 :{ 6 }: appointment to the petitioner beyond the advertised posts. Prayer, thus, is made for rejecting the claim raised in the writ petition. Almost similar stand has been adopted by the Commission to deny the claim made by the petitioner in the writ petition. The main issue that would require consideration is the method of determining the merit. If the course as adopted by the Commission to determine the merit of the candidates, who have scored equally marks, is found to be suffering from any illegality then the same certainly would call for interference. It can be observed that Senior counsel appearing for the petitioner has not made any serious challenge to the manner in which the merit has been determined by the Commission. Still, I have considered the issue as per the rule position as it exists. The manner of determining the merit of candidates scoring same marks earlier was regulated by Punjab Civil Service (Executive Branch) Rules 1930 (hereinafter called '1930 Rules'). These Rules have been amended in the year 2008 and now are known as Haryana Civil Service(Executive Branch) Rules, 2008. Though under 1930 Rules, the method was provided for determining the merits in case two candidates were tied together by getting equal marks. As per these Rules, the merit was then required to be determined on the basis of marks obtained by the candidate in 3 compulsory subjects i.e. English, Hindi and General Knowledge. The marks obtained in the optional subjects were then not required to be taken into consideration for determining the merit. However, in the amended Rules nothing has been provided as to how this issue will be resolved in case there is a tie between two candidates. The CIVIL WRIT PETITION NO.13041 OF 2011 :{ 7 }: situation in the present case is where the petitioner and respondent No.3 have obtained equal marks in the viva as well as in the written examination and thus, are tied. The Commission has explained that in such a situation, it has adopted the precedent of determining the seniority on the basis of age. To substantiate this submission, the counsel appearing for the Commission has drawn my attention to the merit prepared in respect of different candidates. As per the information placed before me, 102 candidates were such, who were tied having obtained same marks and their seniority was determined on the basis of their age. Inadvertently, however, this could not be done in the case of the petitioner and respondent No.3. This mistake came to the notice of the Commission when respondent No.3 made the representation. Accordingly, the inadvertent error has been corrected. It is further pleaded by respondent No.3 that the Rules being silent, the reference can be made to similar rules available for Judicial Services Examination in the State of Punjab and Haryana. No submissions are made before me to urge that this method as adopted would suffer from any illegality which would call for interference in exercise of writ jurisdiction. This method of determining the seniority on the basis of age is well understood and known procedure being adopted in various service rules. In any case, similar method has been adopted in respect of large number of candidates in the same selection. Different yardsticks, thus, cannot be applied to the case of the petitioner and respondent No.3 for determining their seniority. I, thus do not find anything illegal or wrong to interfere in the action of the respondents in changing the CIVIL WRIT PETITION NO.13041 OF 2011 :{ 8 }: seniority. I have even satisfied myself by applying the provisions of 1930 Rules. On the basis of the aggregate of three compulsory subjects, the merit of respondent No.3 is higher than that of the petitioner. Even if 1930 Rules are to apply 2008 Rules being silent, still respondent No.3 would rank senior. That exercise has been done during the course of hearing just to satisfy whether any different yardsticks if applied could have resulted in any change. Learned counsel for the petitioner then submits that there was no misrepresentation on the part of the petitioner and that he was recommended by the Commission on the basis of which he was appointed. He has already completed his training. The petitioner had joined the HCS (Executive Branch) service after submitting his resignation from the post of Dental Surgeon, on which he had been working. As per the counsel, now modifying this recommendation leading to change of recommendation, is unfair and arbitrary. The counsel pleads that the petitioner may be permitted to continue on the post of HCS as the vacancies are available. This, in my view, again would not be a fair and proper approach. There were only 3 vacancies in the BC category against which the name of the petitioner and that of respondent No.3 had been recommended. The state of vacancies being small in number, it may not be fair to consume the vacancy, which ultimately is required to be filled by giving opportunity to other eligible persons. The plea raised on behalf of the State is that the provision of 2002 Act cannot be ignored as the Act provides that appointment cannot be made beyond the advertised posts. That being a statutory requirement, it would not be CIVIL WRIT PETITION NO.13041 OF 2011 :{ 9 }: appropriate to issue direction for adjusting the petitioner in the HCS (Executive Branch) cadre on the vacancies, which are not advertised. Accordingly, I am not inclined to accept this prayer as raised by the counsel for the petitioner. The grievance of the petitioner that he has been put to prejudice and embarrassment despite no fault on his part may be justified. The Commission can be expected to be more vigilant in calculating merit. Such embarrassment certainly is avoidable one and must be avoided. Mistake is inadvertent and it would clearly emerge from the record as there are large number of other candidates whose merits had been determined on the basis of age. The petitioner, certainly, has been put to some embarrassment for no fault on his part. The petitioner was given option to decide if he would like to go back to his old appointment of Dental Surgeon and this could be explored. But the counsel for the petitioner submits that the petitioner does not wish to go back to his previous service as it will further add to his embarrassment. I do not find any merit in the writ petition. The same is, accordingly dismissed. The petitioner has been offered the appointment of Excise and Taxation Officer, which he may accept. September 13,2011 ( RANJIT SINGH ) monika JUDGE