C.W.P. No.18532 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. 1. C.W.P. No.18532 of 2009 Ramesh Chander v. State of Haryana and others. 2. C.W.P. No.19538 of 2009 Surender Kumar v. State of Haryana and others. DATE OF DECISION : 5.1.2011 CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri S.K.Redhu, Advocate for the petitioner. Shri Harish Rathee, Senior D.A.G. Haryana. MAHESH GROVER, J. By this common judgment, I will be disposing of C.W.P. Nos.18532 of 2009 and 19538 of 2009. For the sake of convenience, facts have been taken from C.W.P. No.18532 of 2009. In this writ petition under Articles 226/227 of the Constitution of India, the petitioner prays that he is eligible for being deputed to the Lower School Course (B-1 test) and ought to have been sent for undergoing such a course and the denial thereof has resulted in acute prejudice to him as his juniors have been C.W.P. No.18532 of 2009 -2- deputed for the course and have undergone such training. Similar is the case of Surender Kumar petitioner in C.W.P. No.19538 of 2009. Learned counsel for the respondents, on the other hand, refutes the case of the petitioners primarily on the ground that the petitioners have not obtained minimum of 31 marks which were required of them and which have been incorporated in the Instructions issued on 13.2.2007. It is the contention of the learned counsel for the respondents that pursuant to the decision rendered by this Court in 2004 in C.W.P. No.7952 of 2004 Naresh Kumar v. State of Haryana and others, these Instructions came into existence in 2007 and since the petitioners do not qualify the minimum requirement of 31 marks, they cannot be sent to the said Course. It is the further case of the respondents that petitioners have filed the present writ petitions belatedly. I have heard the learned counsel for the parties and perused the material on record and am of the opinion that the writ petitions deserve to succeed for the reason that the controversy has been settled in numerous judgments by this Court in which the objections raised by the respondents have been dealt with and have been negated. In Naresh Kumar's case (supra), this Court observed as under :- “Since rule 13.7 of the 1934 Rules, extracted hereinabove, clearly envisages the applicability of the principle of seniority cum fitness for determining the entitlement of a constable to be placed on List B-1 i.e. for being deputed to the Lower School Course, we have no doubt whatsoever, that given the minimum requisite merit/fitness required, the senior has to be placed on list B-1 as a matter of preference. The only justification depicted in the written statement for considering the claim of respondent No.4 as superior to that of the petitioner is, that respondent No.4 was C.W.P. No.18532 of 2009 -3- placed at a higher level vis-a-vis the petitioner while adjudicating the relevant merit of the candidates. As noticed by the Apex Court in Lt.Gen.Rajender Singh Kadyan's case (supra), the comparison of candidates on the basis of merit is irrelevant under the aforesaid principle of promotion. In the aforesaid view of the matter, since it is not the case of the respondents, that the petitioner did not fulfil the minimum requisite merit of being placed in List B-1, we are satisfied, that the instant writ petition must succeed and the petitioner, on account of seniority, must be preferred over respondent No.4 for being placed on List B-1 and accordingly for being deputed to the Lower School Course. In view of the above, the instant writ petition is allowed. The respondents are directed to depute the petitioner to the first Lower School Course which will commence after the pronouncement of the instant order. The petitioner shall, however, be treated as having qualified the Lower School Course as if he had been deputed to the Lower school Course for which the instant petition was filed.” Subsequently, in another Civil Writ Petition No.19965 of 2006 Balraj Singh and others v. State of Haryana and others , this Court while allowing the petition, observed as follows :- “We are of the considered view that the claim of the petitioners deserves to be considered in the light of the Division Bench, judgment in Naresh Kumar's case (supra) which has attained finality upto the Hon'ble Supreme Court. Accordingly, the present writ petitions are disposed of with a direction to the respondents to consider the claim of the petitioners and all similarly placed persons who have been deputed to the Lower School Course subsequent to the deputing of their juniors and have passed the said Course after their juniors for deciding their claim of seniority over and above them and also to consider the claim of the C.W.P. No.18532 of 2009 -4- petitioners and all similarly placed persons, for including their names in List-B of selected Constables for admission to the Lower School Course, in accordance with the judgment passed by this Court in Naresh Kumar's case (supra) within a period of two months from the date of receipt of copy of this order. The respondents are further directed to depute all similarly placed persons, including the petitioners, to the Lower School Course in accordance with the seniority in their prescribed quota of 35% seats provided they fulfil the requirements of the Rules as interpreted by this Court in Naresh Kumar's case (supra). These persons shall be deemed to have qualified the Lower School Course from the date the other Constables junior to them have qualified the same. It is, however, made clear that if by getting retrospective date of passing the Lower School Course the persons, including the petitiones, become eligible for promotion, they will get only deemed benefits without getting any actual financial benefits, in view of the principle of “no work for no pay” as laid down by the Hon'ble Supreme Court in Union of India and another v. Tarsem Lal and others 2006(10) S.C.C. 145.” Having regard to the aforesaid, there was hardly any room for the respondents to misinterpret the claim of the petitioners, but for the reasons best known to the respondents, they have chosen not to follow the dictum of this Court and have sought to defeat the claim of the petitioners. No plausible explanation has been given by the respondents for denying the claim of the petitioners. In view of the observations made by this Court in the aforesaid judgments, both the writ petitions are allowed and the petitioners in these petitions are directed to be deputed to the Lower School Course (B-1 Test) forthwith. However, it is made clear that by getting the deemed benefit of retrospectively passing the Lower School Course, the petitioners shall become eligible for promotion, but this they will only get without getting any actual financial benefits. C.W.P. No.18532 of 2009 -5- These observations are being made on the strength of the Division Bench judgment of this Court rendered in C.W.P. No.1194 of 2005 Hawa Singh v. State of Haryana. ( MAHESH GROVER ) January 5, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO