C.W.P. No.4105 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. C.W.P. No.4105 of 2009(O&M) DATE OF DECISION : 14.1.2011 Jitender Kumar PETITIONER VERSUS The State of Haryana and others RESPONDENTS CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri Rajneesh Chadwal, Advocate for the petitioner. Shri Harish Rathee, Senior D.A.G. Haryana. MAHESH GROVER, J. C.W.P. No.4105 of 2009 -2- The petitioner prays that the result of the selection to the post of Sanskrit Teachers Annexure P-2 be quashed. He claims that he is dependent of Ex-Serviceman. On 20.7.2006 498 seats were advertised for the post of Sanskrit Teachers and 18 posts were reserved for the Ex-Servicemen. The petitioner being a dependent of the Ex-Serviceman, applied for the same, as he fulfilled the necessary qualifications and eligibility conditions as given out in the advertisement and which are extracted below :- (i) Shastri/B.A. (Hons. in Sanskrit) from a recognized University. (ii) L.T.C./ O.T. in Sanskrit conducted by the Haryana Education Department or an equivalent qualification recognized by the Haryana Education Department or B.T./B.Ed. with Sanskrit as teaching subject from a recognized University. Respondent No.5 who also fulfilled the conditions and was an aspirant, was selected against the category of Ex-Serviceman and this is the cause of grievance of the petitioner who states that respondent No.5 did not have the essential qualification which was given in the advertisement, but fell within the clause of exception as given in the note that “in case the candidates of above mentioned qualifications are not available, then B.A. with Sanskrit as an elective subject with BT./B.Ed. from a recognized University with Sanskrit as one of the teaching subject shall be considered.” It is the case of the petitioner that since he had Shastri and B.Ed. to his credit, the respondents could not have resorted to the exceptional clause, as it would have become operative, only if a person with the requisite qualification was C.W.P. No.4105 of 2009 -3- not available and thus, the selection of respondent No.5 is erroneous and liable to be set aside. The respondents, on the other hand, have pleaded that the posts were reserved for Ex-Servicemen and their cases were considered. Respondent No.5 who was B.A.Sanskrit as an elective subject with B.T./B.Ed. was selected, as he fulfilled the qualifications. That since the posts were reserved for Ex-Servicemen, it was the bounden duty of the respondents to make selection from the Ex- Servicemen first and in the face of the non-availability of the Ex-Serviceman candidates, the process of selection could fall back upon the dependent of Ex- Serviceman. I have heard the learned counsel for the parties and in the backdrop of the respective contentions which have been made, am of the opinion that the contention of the petitioner is misplaced. The petitioner firstly belongs to the category of dependents of Ex-Serviceman, whereas respondent No.5 who has been selected, belongs to the category of Ex-Serviceman. The qualifications which have been given out in the advertisement and which have been extracted above, contemplate in clause (i ) that an incumbent should be Shastri/B.A. (Hons. in Sanskrit) from a recognised University ; and (ii) L.T.C./ O.T. in Sanskrit conducted by the Haryana Education Department or an equivalent qualification recognized by the Haryana Education Department or B.T./B.Ed. with Sanskrit as teaching subject from a recognized University. It was, thus, incumbent upon the respondents to first evaluate from the category of Ex-Servicemen as to whether a person was available with these qualifications and if not, then to fall back upon the note which was given that in case the candidates of above mentioned qualifications are not available, then B.A. with Sanskrit as an elective subject with B.T./B.Ed. from a recognized University with Sanskrit as one of the teaching subject shall be considered. The respondents C.W.P. No.4105 of 2009 -4- were well within their right in first evaluating the cases of Ex-Servicemen and deciding them. Respondent No.5 who had the requisite qualification, was therefore, rightly selected and the petitioner who is dependent of Ex-Serviceman, could have been considered only in the eventuality of the posts remaining unfilled from the category of Ex-Servicemen. The Hon'ble supreme Court in Dilwan Singh and others v. State of Haryana and others (Civil Appeal No.6887 of 1996) observed as follows :- C.W.P. No.4105 of 2009 -5- “We are of the view that the Board is not justified in law to take such a stand. The Board being the recruiting agency, it is its duty to verify and find out whether a candidate who has laid his claim as dependent son or daughter of the deceased ex-servicemen, fulfill the criteria referred to earlier for recruitment to the vacancies reserved for unfilled posts of ex- servicemen. On being satisfied, the other consideration has to be looked in to and selection process could be made and candidates are selected according to prescribed procedure. It being the primary duty of the Selection Board, it cannot abdicate it function by merely relying on certificate issued by the Sainik Board which is only a recommending authority certifying that the candidate as a dependent of the ex- servicemen. It may be accepted only a prima facie evidence. The certificate does not ipso facto become conclusive nor would it entitled the candidate to be considered as a dependent of ex-servicemen. It would be for the Board to examine and in case of any doubt ; it should call upon the candidate to satisfy the Board that the candidate is dependent and fulfills the requirements prescribed in the guidelines. That was not done in these cases.” Reliance has been placed by the learned counsel for the petitioner on a judgment of this Court in C.W.P. No.9754 of 1999 Subhash Chander and another v. The State of Haryana and others decided on 7.5.02001 wherein it was held that the petitioner who was having higher qualification and was dependent of Ex-Serviceman, ought to have been considered, in case the candidates having C.W.P. No.4105 of 2009 -6- passed the Junior Basic Training Course were not available, the persons having B.A.B.Ed. qualification or B.Sc. B.Ed. qualification could be considered. Those persons who are having B.A.B.Ed. qualification and are ex-servicemen necessarily in the sequence could be considered in case the candidates having passed the Junior Basic Training Course are not available. It has been specifically provided that a person with higher qualification shall be considered in the eventuality of the persons from the primarily qualification not being available. In the instant case, no such condition is there and that the note merely provides that in case the candidates of above mentioned qualifications are not available, then B.A. with Sanskrit as an elective subject with BT./B.Ed. from a recognized University with Sanskrit as one of the teaching subject shall be considered. Meaning thereby that the primary qualification and the eventuality clause have been equated altogether. The respondents were thus, justified in making selection of respondent No.5 and negating the claim of the petitioner. No ground to interfere is made out. Dismissed. ( MAHESH GROVER ) January 14, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO