IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.904 of 2009(O&M) Date of decision: 19.11.2009 Nirmala Devi. -----Appellant Vs. Rajvir Singh & others. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. S.K. Garg Narwana, Advocate for the appellant. Mr. Rameshwar Malik, Addl.A.G., Haryana for respondent No.2. --- ORDER: 1. This order will dispose of L.P.A. Nos.904 to 906 of 2009 filed by the same appellant, Nirmala Devi, against common order of learned Single Judge, disposing of three writ petitions on the same issue. 2. CWP No.3036 of 2008 was filed by the appellant, challenging order dated 5.2.2007 (Annexure P-13) passed by the Haryana Staff Selection Commission (for short, “the Commission”), downgrading her position in the merit list from 618 LPA No.904 of 2009 to 661-A, as a result of which, Show Cause Notice dated 29.2.2008 (Annexure P-14) was given to the appellant by the Commissioner and Director General, School Education, Haryana, asking her to show cause why her services be not terminated. CWP No.5774 of 2007 was filed by Rajvir Singh, seeking quashing of appointment of the appellant in view of her lower merit position as a result of aforesaid order of the Commission dated 5.2.2007. Similarly CWP No.14158 of 2006 was filed by Jaibir Singh for the same relief. 3. Facts not in dispute are that 2127 posts of S.S. Masters/Misrtresses were advertised in the year 1999 for teaching in schools in Haryana. The said figure was reduced to 1270. The result of the written test was declared on 9.10.2004. Appointments to the advertised posts were made somewhere in the year 2005. The appellant was not selected, though her name was placed in the waiting list. She filed CWP No.13101 of 2005, submitting that 136 vacancies were still available which was disposed of on 16.9.2005 with a direction to consider the matter in accordance with judgment of this Court in Sonika D/o Raj Kumar Gupta v. The State of Haryana and others 2005(4) SLR 338, holding that vacancies which had arisen on account of non- joining of some of the candidates, could be filled up from candidates in waiting list. As a result of the said consideration, the appellant was given appointment as SS Mistress vide letter dated 21.6.2009. 2 LPA No.904 of 2009 4. The appointment appears to have been given on the basis of her merit position in the waiting list at serial No.618. It appears that objections were filed on the said merit position and the Commission accepted the objections and changed the merit position of the appellant to serial No.661-A vide order dated 5.2.2007, which was followed by Show Cause Notice dated 29.2.2008 (Annexure P-14). 5. The appellant, thereafter, filed writ petition in this Court on the ground that change of merit position had been effected without hearing her and opportunity in the Show Cause Notice was meaningless, once her merit position had been changed without considering her view point. Other two petitions were filed to give effect to changed merit list. The writ petition of the appellant was opposed by the respondents, justifying the change of merit position of the appellant. It was further submitted that as against six vacancies, number of the appellant in the merit list was seven and, thus, appointment given to her was by mistake which was accordingly corrected. 6. Learned Single Judge dismissed the writ petition. It was held that even though a benefit once conferred could not be withdrawn without giving opportunity of hearing, appointment of the appellant was not called for even on unchanged merit position. Against six vacancies, which remained unfilled, number of the appellant in the waiting list was seven. 3 LPA No.904 of 2009 7. Findings recorded by learned Single Judge are as under:- “In the afore-mentioned background, it is now required to be seen if the petitioners can seek appointment on the ground that they are in the waiting list. In view of the information supplied in the additional affidavit dated 13.8.2009, I am not left with any doubt that the vacancies which would remain unfilled in the general category are 6 in number. Even as per the information supplied to the petitioner and annexed with the petition as Annexure P-7, petitioner Rajvir Singh is at waiting list No.7. As per this merit, the remaining petitioners are also lower in merit to him. Nirmala Devi, respondent No.4 and petitioner in a separate petition is at waiting list No.9 as per her merit. Even if she is to be placed at No.618 because of her date of birth, as was originally done, still she would remain at No.7 of the waiting list, but may be ahead of petitioner Rajvir Singh. Still, she would not be eligible for appointment on the basis of vacancies that remained unfilled. The merit list position of the petition er as well as respondent No.4 has, however, been changed. This grievance is made by Nirmala Devi in her petition that this could not have been done without affording her an opportunity of hearing. Even if unchanged seniority is to be kept in view, she would be at No.7, whereas the vacancies remanning unfilled are 6. Though one person had died, but on that basis, no case for offering appointment to someone lower in merit would be made out as these posts were advertised in the year 1999. The vacancies were reduced when call for interview given after 3 years of the date of advertisement. Interviews were further 4 LPA No.904 of 2009 held after more than 2 years of the date of written test. During this period and the subsequent period till date, large number of persons would have become eligible for appointment. Even the direction for considering the case of the petitioners was passed in the year 2005. 4 years have since gone bye from the said date. Filling of these vacancies from the merit list prepared in the year 2004 would certainly be unfair. The requirement of seeing the violation of principle of natural justice for changing the merit list of the petitioner Nirmala Devi is really not called for. Her right to seek appointment or remain on the post appointed is not made out from the position that she would pray for being maintained.” 8. We have heard learned counsel for the parties. 9. Only contention which has been now put forward is that the appellant had been given a Show Cause Notice and though case of the appellant was that Show Cause Notice should have been given by the Commission before changing her merit position, the authority which gave Show Cause Notice should have been allowed to pass a final order after considering the view point of the appellant. 10. Since finding recorded by learned Single Judge quoted above has not been shown to be erroneous, it has rightly been held that no purpose will be served by hearing being given by the Commission. However, in view of Show Cause Notice having been given to the petitioner by Commissioner and Director General, School Education, Haryana, we allow the said authority 5 LPA No.904 of 2009 to pass further order after considering the view point of the appellant in accordance with law. The said authority may hear the appellant, if she appears and avails of such opportunity on 4.12.2009 at 11-00 A.M. or on such other date as may be fixed by the said authority at its convenience. No adjournment will, however, be given on the asking of the appellant on any ground. 11. The appeal is disposed of accordingly. (ADARSH KUMAR GOEL) JUDGE November 19, 2009 ( GURDEV SINGH ) ashwani JUDGE 6