C.W.P. No. 9542 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P. No. 9542 of 2007 Date of decision : 11.4.2008. ... Suresh Chander Sharma ................ Petitioner vs. State of Haryana and others .................Respondents Coram: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice K.C. Puri Present: Sh. R.N. Sharma, Advocate for the petitioner Sh. Harish Rathee, Senior Deputy Advocate General, Haryana. ... Jasbir Singh, J. (Oral) This order shall dispose of CWP No. 9542 of 2007 and CWP No. 3838 of 2008, as common questions of law and facts are involved in these petitions. For facility of reference, facts are being taken from CWP No. 9542 of 2007. Petitioner appeared in the examination held for the post of Taxation Inspector in the year 1992, result of which was declared in 1993. Petitioner is an ex-serviceman. Vide result referred to above, he was ignored and instead a candidate who was dependent of an ex- serviceman, was taken in service. Petitioner agitated his right in the Court of law. Matter went up to the Hon'ble Supreme Court and vide C.W.P. No. 9542 of 2007 -2- order dated 25.3.1986 (P-2), their Lordships of Hon'ble Supreme Court observed thus:- “Under these circumstances, the appeals are allowed. There shall be direction to the first respondent to call upon the candidates to satisfy the requirements referred to hereinbefore and then process their applications according to law and consider their cases against the unfilled posts reserved for the ex-servicemen within a period of six weeks from the date of the receipt of this order.” In consequent to the order passed referred to above, the petitioner was taken in service on 12.7.2000 and vide order dated 12.7.2002, seniority of the ex-serviceman candidates was fixed and petitioner was shown at S.No.7. Notional pay of the petitioner was also fixed whereof 1.6.1993, vide order dated 17.3.2004 (P-4). However, actual benefit of pay was given to him only from the date of his entry in service. On 12.3.2007, show cause notice was issued to the petitioner (P-5) to withdraw notional fixation of his pay on 17.3.2004. After receipt of his reply, vide order Annexure P-7, benefit of fixation of notional pay whereof 1.6.1993, was withdrawn and his pay was refixed. Hence, this writ petition. In response to notice issued by us, reply has been filed, wherein it has been stated that petitioner is not entitled to get benefit of notional fixation of pay w.e.f. 1.6.1993. Only seniority has been given to him from the abovesaid date. After hearing counsel for the parties, we feel that this writ petition deserves to be allowed. It is not in dispute that petitioner was C.W.P. No. 9542 of 2007 -3- a candidate for the post of Taxation Inspector, for which examination was held in the year 1992, result was declared in the year 1993. Wrongly, the benefit was declined to him, which was rectified by their Lordships of Hon'ble Supreme Court, vide judgment Annexure P-2, in that event, the petitioner shall be deemed to be in service from the date when persons lower in merit, were taken in service or dependents of ex-servicemen were given the appointment i.e. on 1.6.1993. It is also not disputed before us that benefit of seniority has been given to the petitioner from the abovesaid date. If that is so, we feel that petitioner is also entitled to notional fixation of his pay from the abovesaid date. It appears that benefit which was granted to him in the year 2004, has now been withdrawn without any justification. View expressed by us is in consonance with the ratio of a Division Bench judgment of this Court in Subhash Chander vs. The State of Haryana and others 2006 (3) S.C.T. 497 and ratio of another Division Bench judgment of this Court in Rajiv Kumar vs. State of Haryana and others, CWP No. 1874 of 2007 decided on 15.2.2008, wherein it was observed thus :- “After hearing counsel for the parties, we feel that claim of the petitioner is perfectly justified to get deemed date of appointment from the date when persons lower in merit were taken in service. This view also find support from ratio of a Division Bench Judgment of this Court in Subhash chander C.W.P. No. 9542 of 2007 -4- v. State of Haryana, 2006(3) S.C.T. 497. It is apparent from the records and is not disputed before us that the petitioner was entitled to get 5 additional marks in view of the observations made by the Hon'ble Supreme Court and also decision taken by the State government. Due to some misconception those 5 marks were not awarded to him. The competent authority has now found that if those marks were given to the petitioner, he would have secured 32 marks. Last candidate selected in general category, had secured 30 marks in the physical efficiency test and the interview. If that was so, the name of petitioner definitely would have figured in the merit list as per marks obtained by him. That benefit was wrongly denied to him and the mistake has now been rectified. Due to mistake committed by the authority concerned, seniority, from the date when persons lower in merit were allowed to enter in service, cannot be denied to the petitioner. To deny his claim, Shri Rathee has vehemently argued that 5 marks could not have been given to the petitioner, because, at the time of interview, he failed to disclose that he was a C.W.P. No. 9542 of 2007 -5- discharged constable. We have gone through the written statement. Nothing of the sort has been mentioned and further more, this plea was taken even before the Inspector General of Police when he passed the order dated 8.3.2004. The same was negatived. The State government has not challenged the order, referred to above. In view of facts mentioned above, we allow this writ petition and order the respondents to give the petitioner deemed date of appointment from the date persons lower in merit were allowed to join service. His seniority be also refixed. Counsel for the petitioner very fairly states that for the period in question, as the petitioner had not worked, he will not claim any financial benefit. However, notional/deemed benefits be given to him. We order accordingly.” In view of facts mentioned above, we allow this writ petition and set aside the order dated 26.4.2007 (P-7) and restore the order dated 17.3.2004 (P-4). ( Jasbir Singh ) Judge ( K.C. Puri ) 11.4.2008. Judge chug C.W.P. No. 9542 of 2007 -6-