HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.14136 of 2008 (O&M) Date of Decision: 13.09.2011 **** Gursewak Singh . . . . Petitioner VS. State of Punjab & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Ms. Maninder, Advocate for the petitioner Ms. Sudeepti Sharma, DAG Punjab **** SURYA KANT J. (ORAL) (1). The petitioner was appointed as Head Master against a post reserved for Ex-serviceman. The appointment was made pursuant to direct recruitment in which his merit position was 51.7555%. Respondent No.4 (Balwinder Singh) is also an Ex-serviceman and his merit points were 56.73%. He was unfortunately ignored while giving appointment to the petitioner. CWP No.14136 of 2008.doc - 2 – (2). Pursuant to the directions issued by this Court in CWP No.1201 of 2007 filed by respondent No.4, the respondent- authorities re-considered the whole matter and resultantly the impugned order dated 04.08.2008 (Annexure P11) was passed terminating the services of the petitioner for accommodating respondent No.4. (3). The aggrieved petitioner has approached this Court. (4). One of his contention is that two candidates lower in merit have been retained in service. (5). A Division Bench of this Court vide order dated 12.08.2008 stayed operation of the termination order (Annexure P11) passed against the petitioner and as a result thereto, he as well as respondent No.4 both are continuing in service. The petitioner has completed more than 5 years of service. (6). It is true that as per the plea taken by the respondents in preliminary submission No.4 of the reply/affidavit dated 11.06.2010 the petitioner was the last selected candidate in the merit of Ex-servicemen (Male) category and respondent No.4 has been found above him in the order of merit. (7). The official respondents in their additional affidavit dated 04.03.2011 filed today also have reiterated that as per the list (Annexure R3), the petitioner is lower in merit than respondent No.4. It is also their case that the services of the petitioner were terminated as there was no other 2 CWP No.14136 of 2008.doc - 3 – vacancy reserved under the Ex-serviceman category against which he can be accommodated. (8). It is the categoric stand of the petitioner as well as respondent No.4 that more than one post are lying vacant in the Department due to which the petitioner as well as respondent No.4 both have been allowed to continue in service. (9). In such like situation where the inter se merit has been subsequently re-shuffled resulting into termination of services of the candidate(s) lower in merit, this Court has evolved the following mechanism in Rajinder Kumar and State of Punjab & Ors. (CWP NO.253 of 2010) and connected matters :- “[15]. There is indeed no denial to the fact that as per the original merit-list displaced on the website or published in the Newspapers, the petitioner was amongst the selected candidates. The selection was carried out by an agency hired by the State Government. The marks secured by the petitioner are not at variance. It is not the case of the respondents that the petitioner misled or duped the authorities to secure appointment. It was on the basis of the marks secured by him that he was given appointment. It is stated that the petitioner was earlier also in Government service and he resigned from the said post so as to join as Hindi Master. It would, therefore, be too iniquitous to subject the petitioner to such an 3 CWP No.14136 of 2008.doc - 4 – extreme hardship and/or snatch the very source of survival of his family and that too for no fault attributable to him. [16]. It may be true that some of the candidates were wrongly rejected by the respondents treating them ineligible for want of updated Backward Class certificates, who have finally succeeded before this Court. The direction issued by the High Court to treat those candidates as eligible, therefore, should not work to the disadvantage of the petitioners. The fact that hundreds of posts are lying vacant and the Govt. Schools, especially in rural areas are suffering a lot for want of adequate teachers, it would otherwise be in the interest of student-community to retain the petitioners in service. [17]. Consequently, the writ petitions are allowed; the impugned Order-cum-Show Cause Notices dated 20.11.2009 are quashed and the respondents are hereby directed to allow the petitioners to continue against the available vacancies, however, without affecting the seniority of the candidates who have been held to be higher in merit.” (10). It cannot be overlooked that the petitioner is an Ex- serviceman who has already spent more than 5 years in service. (11). Keeping in view all the attending circumstances, the writ petition is allowed and the impugned order dated 04.08.2008 (Annexure P11) to the extent of terminating the petitioner’s services is set aside and it is directed that the 4 CWP No.14136 of 2008.doc - 5 – petitioner shall also be allowed to continue in service against a post reserved for Ex-serviceman (Male) category by consuming the next roster point. The resultant effect would be that in the cadre of Head Masters, respondent NO.4 shall continue to remain senior to the petitioner being higher in merit. (12). Ordered accordingly. Dasti. 13.09.2011 vishal shonkar (S u r y a K a n t) Judge 5