Civil Writ Petition No.9659 of 2007 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: November 03, 2009 Mandeep Sharma ...Petitioner VERSUS The State of Haryana & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 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: Mr.B.K.Bagri, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana, for respondent Nos.1 to 3. Mr.Azad Singh, Advocate, for Mr.Randhir Sehrawat, Advocate, for respondent No.5. ***** RANJIT SINGH, J. Some posts for Peon were advertised on 4.11.2004 through an advertisement issued in Newspaper “Dainik Jagran”. The petitioner applied for being appointed as Peon as he was fully qualified. Interviews for the post were held on 4.12.2004 in the office Civil Writ Petition No.9659 of 2007 : 2 : of District Attorney, Yamuna Nagar. The selection list of the candidates was accordingly prepared. The petitioner claims to have been placed in merit over Gurmail Singh son of Sakru Ram and another candidate Sarwan Kumar son of Sona Ram. The petitioner was issued appointment letter on 8.12.2004. Before appointment, he appeared before Civil Surgeon, Jind on 13.12.2004 for medical examination as first entry into the Government service. The medical certificate was accordingly issued to the petitioner on 13.12.2004. Though the petitioner claims that he had submitted his medical certificate on 13.12.2004, but in the reply, it is stated that the petitioner's certificate was received on 17.12.2004. Reply also shows that the medical fitness certificate of Sarwan Kumar was received on 17.12.2004 and the appointment letter was statedly issued to him on the same date. Gurmail Singh's medical examination letter was received on 8.12.2004 and he was also accordingly given the appointment. The petitioner was not appointed on the ground that by the time his medical certificate was received, the general election for the State Assembly was announced by the Election Commission and the model code of conduct was imposed. After the election process, the proposal for issuance of appointment letter to the petitioner along with other candidates from other districts was put up on 25.7.2005, but the appointment letter still could not be issued to the petitioner by Director of Prosecution, Haryana, Panchkula. The blame is thereafter fastened on to the petitioner by saying that he made no efforts to seek appointment from the department after the election process was over till the time he made first effort by serving a legal notice on the Civil Writ Petition No.9659 of 2007 : 3 : respondents on 18.10.2006. Thus, the petitioner has been denied appointment after due selection on the ground that he could not be offered appointment in view of model code of conduct having taken effect. Would this be a valid ground to deny appointment to the petitioner, who is duly selected much before the election process or the elections were announced?. Mr.Rathee is very fair in stating that this court has already viewed that the model code of conduct could not be pressed into service to deny appointment to an individual. Reference can here be made to Rachna and others Vs. State of Haryana, 2007(3) RSJ 93, wherein after making reference to two others Division Bench judgments in CWP No.833 of 2005 titled Sarita Vs. State of Haryana, decided on 21.1.2005 and CWP No.1621 of 2005, titled Renuka Wadhwa Vs. State of Haryana and others, decided on 14.2.2005, it is observed that the Election Model Code of Conduct could not stand as embargo with respect to the appointment of the persons, who have been duly selected by the Commission. Even otherwise, model code of conduct may not have a statutory force as such. It is a code which is formulated to be followed by conclave of the political parties upon agreement. The selection process, which was initiated much prior to the issuance of election process and was finalised much before the announcement of the elections, bringing in force the model code of conduct would have no effect on the selection so made. There is obviously some delay on the part of the petitioner to make the approach for seeking appointment. Obligation was of the Civil Writ Petition No.9659 of 2007 : 4 : respondents to call the petitioner once he had submitted his joining report to either deny him or to appoint him. The petitioner may have been waiting for a call. Merely because he has delayed in approaching the respondents would not be a ground to defeat his right which has accrued to him after his selection. Delay on his part to seek enforcement of his right cannot be a ground to deny him his right altogether. The persons, who were less meritorious than the petitioner, were appointed but the petitioner was denied this appointment only because of delay in receipt of the medical examination of the petitioner. To deny appointment to the petitioner under such circumstances as urged by the respondents would be highly unfair and unjust. Accordingly, the prayer made by the petitioner is accepted. The writ petition is allowed. The directions are issued to the respondents to offer appointment to the petitioner, especially so when in the additional affidavit now filed by the respondents, it is clearly disclosed that they have kept one post of Peon reserved in the department in view of the pendency of the writ petition. This is done to ensure that the necessary action can be taken as per the directions issued by this court. Let the petitioner be offered appointment against this vacancy if he is considered otherwise eligible for appointment on the date of selection. Keeping in view the delay on the part of the petitioner to make this approach for appointment, it would be fair to balance the equity and to allow him back wages from the period from October 2006, when he issued a legal notice to the respondents for the first time. Petitioner, however, will be assigned seniority from the date candidates less meritorious Civil Writ Petition No.9659 of 2007 : 5 : were appointed. He will get the continuity of service from the said date, but will get back wages from November first, 2006. Let the necessary exercise be completed within a period of two months from the date of receipt of copy of this order. November 03, 2009 ( RANJIT SINGH ) ramesh JUDGE