HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.6016 of 2009 (O&M) Date of Decision: 08.09.2011 **** Maninder Pal . . . . Petitioner VS. State of Punjab & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** Present: Ms. Anu Chatrath, Advocate; Mr. Sukhdev Kamboj, Advocate for the petitioner(s) Ms. Sudeepti Sharma, DAG Punjab **** SURYA KANT J. (ORAL) (1). This order shall dispose of CWP Nos.6016 & 17082 of 2009 as there are common issues involved. For brevity, the facts are being extracted from CWP No.6016 of 2009. (2). The petitioner was a candidate for appointment to the posts of Hindi Master which were advertised on 21.10.2006. The petitioner belongs to the reserved category of Backward Class. The selection Committee prepared a merit list in which his name figured at Merit No.64.09 (the petitioner in the connected petition figured at merit No.64.225). It is indeed not in dispute that a candidate lower in merit namely the third respondent whose merit position was 63.94 has been appointed. The petitioner after representing the authorities has approached this Court in CWP No.6016 of 2009.doc - 2 – this second round of litigation seeking his appointment on the plea that candidates lower in merit have been given appointment. (3). The respondents have filed their reply/affidavit maintaining that some of the candidates who were earlier treated ineligible in the reserved category on the plea that they had failed to produce a valid Backward Class Certificate(s) before the cut-off date, approached this Court in a bunch of writ petitions including CWP No.4242 of 2007 (Gyatri Jyoti v. State of Punjab & Ors). and their claim was allowed vide order dated 30.09.2008. The merit list was accordingly re-shuffled pursuant to those directions and some of the appointees who were pushed down in merit list were served with notices for termination of their services. It appears that the third respondent was also amongst them. These appointees apprehending termination of their services also approached this Court by way of a bunch of writ petitions which were decided vide order dated 03.03.2010 with the lead order in CWP No.253 of 2010 (Rajinder Kumar vs. State of Punjab & Ors) wherein this Court ruled as follows:- “[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 2 CWP No.6016 of 2009.doc - 3 – 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 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 3 CWP No.6016 of 2009.doc - 4 – affecting the seniority of the candidates who have been held to be higher in merit.” (4). It may also be noticed at this stage that this Court took note of the apprehension expressed on behalf of the respondent-authorities that some more candidates claiming to be higher in merit might seek appointments. It was in that backdrop that this Court observed that: - “At this stage, Mrs. Charu Tuli, learned Sr. DAG, Punjab has apprehended and rightly so that there may be many other candidates higher in merit than the petitioners who might stake claim for their appointments. Ordinarily, no such claims at this belated stage can be entertained by a writ Court. However, there is no need to express any final opinion on this issue at this stage when no such candidate has come forward.” (5). The respondents accordingly maintain that the petitioner is amongst those candidates whose claim for appointment, in a way, stood rejected by this Court vide observations made in Rajinder Kumar’s case (supra), reproduced above. (6). Having heard learned counsel for the parties and after going through the record, I do not find any substance in the 4 CWP No.6016 of 2009.doc - 5 – objection raised by the respondents. I say so for the reason that the advertisement was issued in the year 2006 and selection and appointments were made somewhere in the year 2007. It was in that backdrop that in Rajinder Kumar’s case (supra) this Court observed that the candidates who would stake their claim for appointment after 3 years could be non-suited on the ground of delay and laches. (7). The petitioner’s case, however, does not fall under that exception. It is indeed not disputed that the petitioner approached this Court at the earliest i.e. in the year 2007 by way of CWP No.1742 of 2007 which was disposed of on 18.07.2007 with a direction to the respondents to consider his claim for appointment as per merit. The petitioner thus cannot be accused of sleeping over the matter nor he allowed the grass to grow under his feet to deny him the protection of equality guaranteed under Articles 14 & 16 of the Constitution. (8). Suffice it to say that the principle of delay and laches coined by a Writ Court to refrain itself from exercising its discretionary jurisdiction under Article 226 cannot be invoked against vigilant litigant who has taken all possible steps to protect or enforce his right. 5 CWP No.6016 of 2009.doc - 6 – (9). For the reasons afore-stated, the writ petition is allowed; the respondents are directed to offer appointment to the petitioner on the post of Hindi Master notionally from the date when his junior in merit, namely, respondent No.3 was appointed. (10). The petitioner shall be entitled to seniority above his junior but without payment of any arrears of pay. (11). The needful shall be done within a period of three months from the date of receipt of a certified copy of this order. (12). Ordered accordingly. Dasti. 08.09.2011 vishal shonkar (S u r y a K a n t) Judge 6