CWP No. 19434 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CWP No. 19434 of 2008 Date of decision: 01.08.2011 Krishan Kumar ........ Petitioner Versus Municipal Corporation Faridabad and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Deepak Jain, Advocate for the petitioner Mr. Narender Hooda, Advocate for respondents No. 1 and 2 Mr. Puneet Bali, Advocate for respondent No. 4 None for respondents No. 3, 5 to 7 -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. The petitioner herein has challenged the appointment of respondents No. 3 to 7 as Assistants in the Municipal Corporation, Faridabad. The said selection has been challenged on the ground that the respondent Corporation had issued an advertisement in the newspaper “Rashtriya Sahara” on 19.03.2008 for the post of Assistant. Since the CWP No. 19434 of 2008 2 newspaper “Rashtriya Sahara” has no wide circulation in the area where the petitioner is residing, he could not apply for the post of Assistant and relied on the judgments rendered by the Hon'ble Supreme Court in the cases of Business Link v. A S Advertising Company and others (2003) 10 SCC 258 and Excise Superintendent, Malkapatnam Krishna District, A.P. v. K B N Visweshwara Rao and others 1996 (6) SCC 216, to substantiate his argument that the applications should be invited by publication in the newspaper having wide circulation. Secondly, only one post of Assistant was advertised, whereas, seven persons have been selected and appointed. Reliance was placed on the judgment rendered by the Hon'ble Supreme Court in the case of Secretary, A.P. Public Services Commission v. B Swapna and others 2005 (2) RSJ 704. Lastly, the appointments have been made with mala fide intention and to oblige the local Minister and close relations of the authorities of the respondent-Corporation. Reply has been filed by official respondents No. 1 and 2 and respondent No. 4. However, no reply has been filed on behalf of other appointee candidates i.e. respondents No. 3, 5 to 6. Learned counsel for the parties were heard at length. The argument raised by the petitioner that the aforesaid advertisement for appointment to the post of Assistant was not widely circulated in the area where he resides, has been vehemently opposed. The advertisement in question was appeared on 19.03.2008 in two newspapers i.e. Rashtriya Sahara and Nav Akash, copies of the newspapers cutting CWP No. 19434 of 2008 3 have been placed on record as Annexure P2 and R1/1 respectively. Besides, the aforesaid advertisement in two newspapers, a requisition was also sent to the Employment Exchange on 18.03.2008 for sending the names of the eligible candidates through Employment exchange to appear before the Selection Committee on 29.03.2008. A copy of the requisition letter has been placed on record as Annexure R1/2 and that it was further submitted that it was on account of wide circulation, publication and requisition sent to the employment exchange that as many as 110 candidates applied for the said post. Out of the total 110 candidates, 91 candidates appeared for the interview which included 14 candidates whose names were sent by the Employment Exchange. Learned counsel for the petitioner, while rebutting the same, has submitted that out of 91 candidates, the maximum applications i.e. 63 were from Faridabad itself. The details of the applications from other places are as under:- Place Number of candidates Delhi 6 Bhiwani (Haryana) 1 Pitorgarh 1 Palwal (Haryana) 11 Noida (UP) 1 Muazzafar Nagar (UP) 2 Jind (Haryana) 1 Gurgaon (Haryana) 2 Dehradun (Uttarkhand) 1 Kaithal (Haryana) 1 Mewat (Haryana) 1 CWP No. 19434 of 2008 4 ` Although, the petitioner has neither taken the plea in the petition nor filed any replication to the reply filed by the official respondent Nos. 1 and 2 as well as private respondent No. 4, the reason behind maximum applications received from Faridabad is not far to see. Every District has its own Municipal Corporation. The post is of Accountant in Municipal Corporation, Faridabad itself. The Municipal Corporation does not offer any residential accommodation. An employee prefers a job near his home. On a specific query, it has been replied by the official respondents that the jobs were not transferable from one District to another. Thus, this is one of the major reasons that there were maximum application from Faridabad itself. Thus, the mode of inviting application through the Employment Exchange as well as Publication is keeping in view the spirit of the judgment rendered by the Hon'ble Supreme Court in the case of Excise Superintendent (supra), wherein, Hon'ble the Supreme Court, while not finding any case to disturb the directions issued by the Tribunal for appointment of the selected candidates, for which, the applications were invited only through the Employment Exchange, held that the Government Departments must send requisition to the Employment Exchanges and also invite applications by publication in the newspaper. Taking into account the huge number of applications that were received in response to the publication in the two newspapers and Employment Exchange, there is no merit in the argument raised by the petitioner. Taking up the second argument of the learned counsel for the petitioner that only one post of Assistant was advertised but as many as CWP No. 19434 of 2008 5 seven posts were filled up, is not entirely correct inasmuch as, a perusal of the advertisement P2 and R1/1 which is published in two newspapers Rashtriya Sahara and Nav Akash shows that there is no mention of number of post to be filled up. The argument that interview “for the post of Assistant” means one post, could have been interpreted as such if in the letter issued to the Employment Exchange (R1/2) had not clearly stated that three posts of Assistants were to be filled up with further stipulation that number of posts are likely to increase or decrease. As such, it will have to be accepted that there was in fact no mention of number of posts of Assistant to be filled up by the Department in its advertisement published in two newspapers. As a result, seven persons were selected and appointed to the posts of Assistant in the respondent-Cooperation including two posts which were stated to have fallen vacant due to promotion of two Assistants. There is nothing to show that these posts were newly created. In fact, they were lying vacant with the Corporation and two posts fell vacant on the promotion of two assistants during the pendency of the selection process. Hon'ble the Supreme Court in the case of Prem Singh and others v. Haryana State Electricity Board and others (1996) 4 SCC 319, while holding that the relief in certain cases of excess appointment could be moulded by the Court on the facts and circumstances of the case, held: “After the selection process had started 13 posts had become vacant because of retirement and 12 because of deaths. The vacancies which were likely to arise as a result of retirement could have been reasonably anticipated by the Board. The Board through oversight CWP No. 19434 of 2008 6 had not taken them into consideration while a requisition was made for filling up 62 posts. Even with respect to the appointments made against vacancies which arose because of deaths, a lenient view can be taken and on consideration of expediency and equity they need not be quashed.” Thus, although, there is no dispute with the well settled proposition of law as laid down by the Apex Court in the case of Secretary, A P Public Service Commission (supra), the same does not help the petitioner in view of the facts of the present case as discussed above. The third allegation made by the petitioner that the appointments have been made with mala fide intention and to oblige the local minister and close relative of the authorities of the respondent- Corporation although, in the first instance, appears to be serious but is rendered vague and general inasmuch as, private respondent No. 4 has filed her reply and denied that she is related to the Minister. Although respondents No. 3, 5 to 7 have not filed their replies but the said vague allegation in itself cannot be sufficient to set aside the selection in view of the transparent selection. It has not been rebutted nor any replication has been filed to the written statement stating that the entire selection process continued for about three months. The Selection committee comprised of the Joint Commissioner, Administrative Officer, Assistant District Attorney, Social Welfare Officer and a representative nominated by the Deputy Commissioner, Faridabad evaluated the candidates on the basis of criteria (i) 15 marks for academic extra qualifications (ii) 20 marks for experience CWP No. 19434 of 2008 7 (iii) 10 marks for noting/drafting (iv) 5 marks for knowledge of Computer (v) 10 marks for interview. After formation of the result in respect of 91 candidates who were interviewed on 29.03.2008 and 31.03.2008, the Commissioner of the answering respondent Corporation directed that all the candidates who have awarded 15 marks or above in the grand total be called for interaction with him to judge the intelligence/emotional quotient on 29.05.2008. Accordingly, a letter was sent to 16 persons who have secured more than 15 marks in grand total, vide letter dated 24.05.2008 sent by the answering respondent to appear for an interview and interaction on 29.05.2008. Out of 16 candidates who were called for the intelligence and emotional quotient test, only 10 candidates actually appeared for general aptitude and emotional intelligence test. The entire process is stated to have been video-graphed so as to ensure transparency in the test. This is further strengthened from the fact that not one candidate who participated in the written test or interview has challenged the selection. Accordingly, there is no ground to disturb the selection. Dismissed. 01.08. 2011 (Nirmaljit Kaur) mohan Judge