Civil Writ Petition No. 32 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 32 of 2009 Date of decision:- 29.8.2011 Gurtej Kaur ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Gurbachan Singh, Advocate for the petitioner. Mr. Puneet Gupta, Addl.A.G. Punjab. RITU BAHRI J. This writ petition under Article 226/227 of the Constitution of India is for issuance of a writ in the nature of mandamus directing the respondents to change the cadre of the petitioner from JBT to S.S. Mistress against the reserved point. Petitioner has been placed at serial No.1 in the waiting list belonging to the category of Scheduled Castes (M & B). The above stated relief has been sought by the petitioner on two grounds: (1) that 71st post reserved for Scheduled Castes candidate (M & B) has been filled up by Scheduled Caste candidate (Ramdasia and another); (2) One post has been vacated by Smt. Rajwinder Kaur daughter of Hardev Singh who was selected in the category of Scheduled Castes (M & B) but has not joined as Social Studies Mistress, she has joined as Lecturer. Petitioner is placed at Serial No.1 in the waiting list belonging to the category of Scheduled Castes (M & B). In the written statement, it is not disputed that the petitioner is at Serial No.1 in the waiting list. The 71st post reserved for Scheduled Caste Civil Writ Petition No. 32 of 2009 -2- candidate was to be filled by a candidate belonging to the category of Scheduled Caste (M & B), this post has been filled by appointing another candidate belonging to the category Scheduled Caste (Ramdasiya and another). The claim is being rejected on the ground that the same is being sought belated by eight years. Her claim for appointment against the post vacated by Smt. Rajwinder Kaur is not sustainable on account of unexplained delay. The Cabinet Sub Committee on fiscal management had imposed ban on further recruitment on 24.4.2002 and in view of the ban the vacancies which remained vacant due to non-joining of selected candidates stood abolished. Subsequent recruitments for the posts of Social Studies Mistresses have been made after seeking prior approval of the revival/creation of the posts as per details given below :- Sr. No. Date of Advertisement No. of posts advertised in the category of Female SC (Mazbi/ Balmiki) No. of posts filled up Remarks 1 27.10.2006 25 25 2 29.08.2007 15 15 On consolidated pay The selection took place in the year 2001 and the waiting list has since expired. The petition is liable to be dismissed. Mr. Gurbachan Singh, counsel for the petitioner has placed reliance on a judgment of Co-ordinate Bench of this Court in Digvijay Pal Sharma versus State of Punjab and others in CWP No.8121 of 2002 decided on 04.3.2008, in which it was held that if a ban is imposed on recruitment it will not affect the selections/appointments, which have already been made and if a candidate higher in merit refuses to accept offer, the next candidate in the waiting list if appointed shall not amount to appointment beyond the advertisement post. The Division Bench in its judgment in Raj Kumari versus State of Punjab and others 2004(3) PLR 891 has held that such a ban will not Civil Writ Petition No. 32 of 2009 -3- affect where selection/appointment has already been made. In the present case the petitioner had appeared in the selection in pursuance to the advertisement dated 28.6.2001. She appeared for the interview on 12.11.2001. In the selection list (Annexure P-4) her name was placed at serial No.1 with 51.84 marks. The 71st post reserved for Scheduled Caste candidate (M & B) was given to a Scheduled Caste candidate belonging to Ramdasia and another. This post should have been given to the petitioner. Subsequently, there was one candidate Rajwinder Kaur, who was selected in the category Scheduled Castes (M & B), but did not join. Petitioner being at Serial No.1 should have been given appointment as Social Studies Mistress. The plea taken by the Department that a ban was imposed on 24.4.2002 and the post was abolished, will not take away the right of the petitioner on the post, which became available before the ban was imposed. The petitioner in her legal notice (Annexure P-11) has referred to numerous communications sent by her since 26.12.2001 till 07.6.2008. The relief is being opposed on the ground that she has approached this Court after a gap of eight years of the selection. The Supreme Court in Union of India and others versus Miss Pritilata Nanda 2010(3) SCT 639 had an occasion to examine the appointment being denied to a physically handicapped candidate to Class-III post on the ground that her name was not sponsored from Employment Exchange. She was placed at Serial No.11 of the selection list. She was selected in 1989. She filed O.A. No.112 of 1996 in C.A.T. after seven years of publication. The Department was directed to give appointment to the petitioner Ms. Priti Lata Nanda after a gap of almost 21 years. She was also awarded a cost of Rs.3,00,000/- for denying appointment, which was due to her, which was to be paid by the Union of India. In the facts of the present case the respondents while filling up the 71st post reserved for Scheduled Caste candidate (M & B) Civil Writ Petition No. 32 of 2009 -4- have admitted that they appointed another Scheduled Caste candidate (Ramdasia and another) having higher marks than the petitioner. Secondly, when Rajwinder Kaur, who was selected in the said category did not join, the petitioner being at serial No.1 should have been given the appointment. In other words if 71st post reserved for Scheduled Caste category (M & B) could have been given to Rajwinder Kaur and petitioner should have been given appointment letter of the post, which was given to Rajwinder Kaur but she did not join. On both the counts the petitioner is not at fault. In view of the Supreme Court decision the plea that the petitioner cannot be granted the relief of appointment on the ground of delay is rejected. Consequently, for the reasons recorded, the writ petition is allowed. The respondents are directed to allow the petitioner to join on the post of Social Studies Mistress with all consequential benefits. Needful shall be done within a period of four months from the date of receipt of certified copy of this order. 29.8.2011 ( RITU BAHRI ) Vijay Asija JUDGE