CWP NO.10345 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.10345 of 2007 Decided on : 18.02.2009 Shyam Sunder ....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR. JUSTICE AJAY TEWARI Present:- Mr. T. C. Dhanwal, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana Mr. B. K. Bagri, Advocate for respondent No.7. AJAY TEWARI J. This is a petition claiming certiorari for quashing orders dated 09/30.05.2007 (Annexure P-3) and dated 23.6.2007 (Annexure P-4) whereby the service of the petitioner has been terminated on the ground that his appointment was challenged by respondent No.7 and that writ was allowed and, thus, it would have to be held that the petitioner was beyond the number of advertised post. By order dated 12.5.2008, the following order was passed:- “Petitioner was selected and appointed as a Multi- purpose Health Worker (Male) against advertisement dated May 6, 2006. Respondent No.7 challenged the above said selection. His writ petition was allowed and he was ordered to be taken in service. It is not in dispute that vide advertisement, referred to above, 470 posts of CWP NO.10345 of 2007 -2- Multi-purpose Health Worker (Male) were advertised. In view of order, passed by this Court, respondent No.7 was inducted in service. However, the authorities decided to terminate service of the petitioner on the ground that he was the last person selected in the merit list. Be that as it may, it is not disputed before us that at present, more than 100 posts are lying vacant. Petitioner is in service w.e.f. 24.10.2006. He has acquired the sufficient experience. He, as per admitted position, was at No.1 in the waiting list. If that is so, it is desirable to retain the petitioner in service. This view finds support from ratio of the judgments in CWP No.7062 of 2003 (Ramesh Kumar v. State of Haryana and others), rendered on July 1, 2004, and also in CWP No.7302 of 2001 (Atul V. State of Haryana and another),rendered on February 19, 2003. Even as on today, petitioner is in service. Faced with the situation, Sh. Rahtee seeks time to get instructions as to whether the petitioner can be retained in service. Counsel for the petitioner is directed to supply him copies of the judgments, referred to above. Respondent – authorities are directed to take a decision in consonance with the ratio of the judgments, mentioned in earlier part of the order. Copy of order, to be passed, be put on record on or before July 8, 2008, to which date the case is adjourned. CWP NO.10345 of 2007 -3- Copy of this order be supplied to Sh. Rathee under signatures of the Reader.” Thereafter, letter dated 22.07.2008 was placed on record of this Court wherein it was stated that it could not be possible to adjust the petitioner on the same ground stated as above. In order dated 1.7.2004 in CWP No.7062 of 2003 it was noticed as follows:- “Sh. R. K. Malik, learned counsel for the petitioners fairly conceded that Smt. Anita Yadav and Rachna Yadav belong to BC(B) category and that their candidature was wrongly considered along with the candidates of general category. He also conceded that the action was taken by respondent No.2 to redress the grievance of more meritorious candidates, but argued that the petitioners should not be made to suffer on account of the mistake committed by the official respondents at the time of selection held in the year 2000. He submitted that the petitioners were not responsible for the mistake committed by District Primary Education Officer, Rewari or the wrong done by him in considering the candidature of Smt. Anita Yadav and Ms. Rachna Yadav along with general category candidates and, therefore, they should not be made to suffer. He submitted that the official respondents may be directed to accommodate the petitioners against the available vacant posts of BC(B) category. Sh. Malik invoked the doctrine of equitable estoppel and should be CWP NO.10345 of 2007 -4- declared nullity because in view of their appointment as JBT Teachers, the petitioners did not compete for appointment on other posts. He referred to the averments contained in paragraph 7(ii) of the writ petitions to show that after the appointment of the petitioners, Chandigarh Administration and the Government of Punjab had advertised the posts of Teachers but they did not apply and if their services are now terminated, they would suffer irreparable injury.” In the case of Ramesh Kumar V. State of Haryana and others in CWP No.7062 of 2003, a Division Bench held as follows:- “However, we find substance in the plea of the petitioners that the respondents should be directed to adjust them against the posts reserved for BC(B) category which were available at the time of termination of their services. It is not the case of the official respondents that the petitioners were instrumental in the exclusion of the names of Smt. Anita Yadav and Ms. Rachna Yadav from the list of BC(B) category candidates or that they had made any misrepresentation to the competent authority for securing appointment against the reserved posts of JBT Teacher. It is also an uncontroverted position that in view of their appointment as JBT Teachers, the petitioners did not apply for recruitment against the posts advertised by Chandigarh Administration and the Government of CWP NO.10345 of 2007 -5- Punjab and that as on the date of the impugned order, i.e. 30.4.2003, both of them had completed more than 2-1/2 years service. Therefore, it appears just and proper to direct the official respondents to accommodate them against the posts of JBT Teacher reserved for BC(B) category which were available on the date of termination of their services..........” “By applying the ratio of the above-noted decisions of the facts of these cases, we hold that even though, the action taken by respondent No.2 to redeem the injustice caused to Smt. Anita Yadav and Ms. Rachna Yadav does not suffer from any constitutional or legal infirmity, we feel that ends of justice would be met by directing the official respondents to adjust the petitioners against the posts of JBT Teacher reserved for BC(B) category which were lying vacant on the date of termination of their services and allow them to continue in service subject to the condition that no other candidate higher in merit was left out from being appointed against the posts reserved for BC(B) category candidates.” Similarly, in the case of Atul V. State of Haryana and another in CWP No.7302 of 2001, a Single bench held as follows:- “Learned counsel has further drawn my attention to a judgment rendered in Civil Writ Petition No.11767 of 1998 (Ram Parkash and others Vs. State of Haryana and others), wherein a Division Bench of this Court has CWP NO.10345 of 2007 -6- held that “if posts are lying vacant, then in that eventuality selected persons need not be disturbed.” In the present writ petition, as there are vacant posts, respondents should not have disturbed the petitioner, specially when the petitioner was not a back door entry, and he had served the respondents for two years. Learned counsel has further drawn my attention to a judgment of the Hon'ble Apex Court rendered in Civil Appeal No.7422 of 1999 Sandeep Singh V. State of Haryana and another, wherein it has been held as under:- “That apart, even on first principle, it appeals to us to commend that the vacancies available in any particular service till the date of interview at least should be filled up from the very same examination unless there is any statutory embargo for the same. In the case in hand, no statutory embargo has been pointed out to us. In this view of the matter, the judgment of this Court in 1999(3) SCC 696 should apply to the facts and circumstances.......” “Petitioners, namely, Atul and Ishwar Dutt, (in Civil Writ Petition No.7311 of 2001) have served the respondents for two years. They have been asked to leave service for no fault of theirs. Vacancies were lying vacant at the time when the services of the petitioners were terminated and also at the time of their appointment, learned counsel for the petitioner has stated that CWP NO.10345 of 2007 -7- vacancies are still lying vacant as of today.” Keeping in view the dicta of law expounded above, I find that the case of the petitioner would be covered by the same. Consequently, the orders dated 09/30.05.2007 (Annexure P-3) and dated 23.6.2007 (Annexure P-4) are set aside and the petitioner is declared to have been in service of the respondents with all consequential benefits. Accordingly, the petition stands disposed of. February 18, 2009 ( AJAY TEWARI ) ashish JUDGE