RSA No.1102 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1102 of 2011 (O & M) Date of Decision: 07.03.2011 Sachin and others ……Appellants Versus Suresh Kuimar and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vikas Chaudhary, Advocate for the appellants. L.N. MITTAL, J (ORAL) Defendant Nos.3 to 5 having failed in both the Courts below, are in second appeal. Suit was filed by respondent No.1-plaintiff Suresh Kumar against proforma respondent Nos.2 and 3 (Guru Jambeshwar University of Science and Technology and its Deputy Registrar) as defendant Nos.1 and 2 and against the appellants as defendant Nos.3 to 5. The University advertised some posts of Lab Attendant- cum-Cleaner. Five posts were reserved for Ex-Servicemen. The plaintiff applied against the said posts. Defendant Nos.1 and 2 selected defendant Nos.3 to 5 and two more persons (not party to the suit) for the said posts, keeping the plaintiff in waiting list at serial No.1. The plaintiff's case is that he is Ex-Serviceman whereas defendant Nos.3 to 5 are dependents of Ex-Servicemen. The plaintiff alleged that according to reservation policy of the State as applicable RSA No.1102 of 2011 (O & M) - 2 - to the University, in the first instance, Ex-Servicemen are to be appointed to the posts reserved for this category and only if suitable Ex-Servicemen are not available, only then dependents of Ex- Servicemen are to be considered for the posts reserved for this category. Accordingly, the plaintiff claimed preferential right to the post reserved for this category as against defendant Nos.3 to 5. Defendant Nos.1 and 2 contested the suit and broadly denied the grounds of challenge pleaded by the plaintiff to the selection and appointment of defendant Nos.3 to 5. It was also pleaded that defendant Nos.3 to 5 have already joined their duties. It was alleged that defendant Nos.3 to 5 were selected on merit being better qualified than the plaintiff. Defendant Nos.3 to 5 broadly took the stand as that of defendant Nos.1 and 2. Learned Additional Civil Judge (Senior Division), Hisar vide judgment and decree dated 11.11.2008 decreed the plaintiff’s suit. Defendant Nos.1 and 2 have been directed to consider the claim of the plaintiff as per Rules and instructions and to prepare fresh list as per instructions and judgment of Hon’ble Apex Court in the case of Dilwan Singh and others versus State of Haryana and others, 1996(2) Recent Services Judgments 514. Against judgment and decree of the trial Court, defendant Nos.1 and 2 and defendant Nos.3 to 5 preferred separate first appeals. Both the said first appeals have been dismissed by learned Additional District Judge, Hisar vide judgment and decree dated 27.10.2010. Feeling aggrieved, defendant Nos.3 to 5 have preferred the instant second appeal. RSA No.1102 of 2011 (O & M) - 3 - I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that appellants are better qualified than the plaintiff and were higher in merit list than the plaintiff and, therefore, the appellants have been rightly selected and appointed. The contention cannot be accepted. According to Haryana Government instructions dated 21.11.1980 Ex.P-1 as applicable to the University, dependent sons and daughters of Ex-Servicemen, who fulfill all the conditions prescribed for various posts, are also to be considered on merit for the posts reserved for Ex-Servicemen to the extent of non-availability of suitable candidates i.e. Ex-Servicemen. The instructions thus clearly stipulate that in the first instance, Ex-Servicemen are to be considered for the post reserved for them and only if suitable Ex- Servicemen candidates are not available, only then dependents of Ex-Servicemen can be considered for the posts reserved for Ex- Servicemen. In the instant case, plaintiff is Ex-Servicemen whereas defendant Nos.3 to 5 are dependents of Ex-Servicemen. Plaintiff has been placed in waiting list at serial No.1. It would depict that if any of the first 5 candidates, who were selected in the merit list, had not joined, the plaintiff would have been appointed to the said post. In other words, it means that plaintiff is suitable for the post. It is thus manifest that the plaintiff, who is Ex-Serviceman, is suitable for the post reserved for category of Ex-Servicemen and, therefore, defendant Nos.3 to 5, who are dependents of Ex-Servicemen, could not be considered for the said post in preference to the plaintiff because plaintiff was suitable candidate available for appointment RSA No.1102 of 2011 (O & M) - 4 - against the said post. Consequently, suit of the plaintiff has been rightly decreed by the Courts below. Reference in this regard may be made to the judgment of Hon’ble Apex Court in the case of Dilwan Singh (supra). State Government instructions dated 21.11.1980 referred to hereinbefore have been interpreted in the said case and it has been held that only in the absence of availability of suitable Ex- Servicemen, dependent children of Ex-Servicemen would be considered for the posts reserved for Ex-Servicemen. The selection authority has to first consider the claims of the Ex-Servicemen and have their eligibility considered independently in the first instance before the claim of dependent children is considered. If the Ex- Servicemen are found eligible and are selected, only for the unfilled posts, selection should be done from among the dependent children of Ex-Servicemen. Consequently in the instant case, University could resort to selection of dependent children of Ex-Servicemen only if suitable Ex-Servicemen candidates were not available for the posts reserved for Ex-Servicemen. The suit has, therefore, been rightly decreed by the Courts below. Learned counsel for the appellants also contended that the plaintiff has been wrongly given 20 marks for experience and if the said marks had not been awarded to him, he would not have been found suitable for selection for the posts. The contention cannot be accepted being completely beyond pleadings. Even otherwise, it is beyond the domain of Civil Court to go into the marks awarded by the Selection Authority unless it is depicted that the award of marks is completely arbitrary, perverse, illegal and patently unfair and unsustainable. RSA No.1102 of 2011 (O & M) - 5 - For the reasons aforesaid, I find no merit in the instant second appeal. Suit of the plaintiff has been rightly decreed by the Courts below. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine (L. N. MITTAL) JUDGE 07.03.2011 A.kaundal