CIVIL WRIT PETITION NO. 5774 of 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 17, 2009 Rajvir Singh .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R. K. Malik, Sr.Advocate with Mr. Yashdeep Singh, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. Mr. Jagbir Malik, Advocate, for respondent No.4. **** RANJIT SINGH, J. This order will dispose of three Civil Writ Petition Nos.5774 of 2007 (Rajvir Singh Vs. State of Haryana & others), 3036 of 2008 (Nirmala Devi Vs. State of Haryana & others) and 14158 of 2006 (Jaibir Singh Vs. State of Haryana & others). The facts are being taken from CWP No.5774 of 2007. The petitioner is seeking seeking appointment to the posts which were advertised in the year 1999. 2127 posts of Social Studies Masters/Mistresses were so advertised. The petitioner being CIVIL WRIT PETITION NO. 5774 of 2007 :{ 2 }: eligible had applied for the said post. Written test was held in this case on 20.1.2002. 3810 candidates statedly qualified in the written examination. The interviews were held after more than two years on 29.11.2004. No reasons are disclosed for doing so. The final result was declared on 5.12.2004. The name of petitioner Rajvir Singh was in the waiting list at Sr.No.7. The petitioner has filed this writ petition in the year 2007 averring that 9 candidates of the general category from the original list had not accepted the offer of appointment. Still, the candidates from the waiting list were not appointed. In fact, this is second attempt on the part of the petitioner to seek appointment on this ground. He had earlier filed Civil Writ Petition No.13101 of 2005, which was disposed of on 16.9.2005 with the direction to consider the claim of the petitioner for appointment in the light of the judgments titled Vinay Singh Vs. State of Haryana, 1993 (1)SLR 166, Gopi Chand and another Vs. State of Haryana & others, 1996 (1) AIJ 148, Raghbir Chand Sharma Vs. State of Punjab and another, RSJ 1992 (1) 195 and Sonika Vs. State of Haryana and others, 2005(4) SLR 338. The claim of the petitioner was to be considered within three months from the date the certified copy of the order was supplied to the respondents. To comply with the directions afore-mentioned, the petitioner was called with the original documents on 9.5.2006. It is alleged that respondent No.4, whose date of birth is 27.2.1976 has manipulated and has shown her date of birth to be 27.2.1970 and, thus, has got the merit list changed on the basis of the same. Respondent No.4 accordingly was appointed in July, 2006 ignoring CIVIL WRIT PETITION NO. 5774 of 2007 :{ 3 }: the claim of the petitioner. They both had secured 164 marks and respondent No.4 was preferred on the ground that she was older in age. This is as per policy of the Commission. The petitioner has represented to the Commission accordingly and has, thus, filed this writ petition before this court. Nirmala Devi was appointed as S.S.Mistress on 21.6.2006 being at seniority list No.618 in waiting list. She (respondent No.4) has separately filed Writ Petition No.3036 of 2008 for quashing of the order dated 5.2.2007, whereby her seniority in the merit position has been changed from 618 to 661-A without issuing any notice to her. She has also sought direction to restore her seniority position at No.618 on the basis of which she was appointed. There is yet another writ petition No.14158 of 2006 filed by petitioner Jaibir Singh. The merit position of Nirmala Devi was challenged and thus her seniority was changed from 618 to 661-A. This necessitated the filing of the present petition by Nirmala Devi, referred to above. Not only that, she was also issued a show cause notice, Annexure P- 14, and accordingly Nirmala Devi filed a Civil Misc.to impugn the said show cause notice vide which her services were sought to be terminated. While issuing notice on the Misc.Application, passing of the final order on the show cause notice was stayed. This interim order has continued. Jaibir Singh, who is the petitioner in the third writ petition, has also challenged the appointment of Nirmala Devi on the ground that he is at waiting list No.8 ahead of Nirmala Devi. His claim accordingly is almost identical to the one made by Rajvir Singh petitioner. In the reply filed on behalf of official respondents, it is CIVIL WRIT PETITION NO. 5774 of 2007 :{ 4 }: pointed out that the number of posts as initially advertised were reduced to 1270. The select list as per the merit of the candidates along with the waiting list was prepared. It is then stated that some errors were noticed in the waiting list and the same was amended, in which the respondent No.4 is shown at No.7 on the waiting list as she was placed at No.618 of the waiting list. Subsequently, the Commission informed the Directorate that the merit position of respondent No.4 has become 661-A in place of 618 and that of the petitioner to be 654-A in place of 619. The petitioner originally was shown at Sr.No.8 in the waiting list. It is pointed out that Nirmala Devi was offered appointment as the candidate at waiting list No.612 did not join. Subsequently, action has been taken to dispense with her services after the change of her merit position in the merit list as afore-mentioned. On 6.2.2008, Division Bench of this court directed the State counsel to supply information as to how many candidates failed to join when initially offer of appointment was made as per the select list. Necessary affidavit in this regard was filed. The petitioner had placed on record Annexure P-7 which was the information as obtained under the Right to Information Act. It appears that there was some contradictions in the affidavits filed before this court and accordingly the State counsel took time to harmonise the information. This court also found discrepancy in the number of candidates, who were appointed as per the information supplied under the Right to Information Act vis-a-vis the application dated 26.3.2008. On 22.4.2009, this court recorded the anomalies in this regard and accordingly observed as under:- CIVIL WRIT PETITION NO. 5774 of 2007 :{ 5 }: “There is an apparent anomaly in the affidavit dated 9.5.2008 as well as in the subsequent affidavit dated 20.3.2009. Both affidavits have been sworn by the same officer. In the earlier affidavit, it has been mentioned that 49 persons did not join, while in the subsequent affidavit it has been mentioned that 44 persons did not join. I deem it appropriate to give the respondents one last opportunity to explain this contradiction. Let fresh affidavit be filed within two weeks. Shri Rajinder Pal Singh, Deputy Director, Office of Commissioner and Director General School Education, Haryana, Chandigarh is directed to be present in person on the adjourned date. Adjourned to 19.5.2009.” Mr.Rajinder Pal Singh Deputy Director, Office of Commissioner and Director General School Education, Haryana, Chandigarh came present. He was given time to file an additional affidavit, which he filed. Still, clear position was not seen emerging from the affidavit filed before this court. The court, thus, again directed said Rajinder Pal Singh to be present and to clearly indicate existence of vacancies in general category taking all aspects into consideration. Today, additional affidavit dated 13.8.2009 has been filed by Rajinder Pal Singh, who is also present in person. As per the said affidavit, the deponent has stated that he has re-examined the entire case on the basis of record. As per the affidavit, total 1270 names were recommended by Haryana Staff Selection Commission and out of these candidates, 11 candidates were rejected due to non- CIVIL WRIT PETITION NO. 5774 of 2007 :{ 6 }: combination of subject by the Commission. 5 out of these 11 candidates, who were so rejected, belonged to general category. The dispute in the present writ petition relates to the appointment of general category candidates. Out of the remaining 1259 candidates, 595 candidates were selected from general category. 2 more candidates from general category were recommended out of those 11, whose cases were rejected earlier. Accordingly, 3 vacancies remained unfilled from the general category. Out of 595 candidates, whose names were recommended from the general category, 3 did not join. Thus, 3 vacancies remained on account of non-joining of candidates. The total number of vacancies remained unfilled, thus, works out to be 6. These have been filled from the waiting list as per order of merit. It is accordingly stated that now there is no vacancy left to be filled from the waiting list. The petitioners have not filed any response to the information now supplied in the form of additional affidavit dated 13.8.2009. Mr.Malik, however, would refer to Annexure P-7, which is the information supplied by the Information Officer and would try to base his case on this information obtained earlier. Since the information earlier supplied either in the form of affidavit or additional affidavit has now been clarified in the additional affidavit dated 13.8.2009, it is this information now which will be relevant for considering the position/number of vacancies remain unfilled. Even in the earlier affidavit filed on 9.5.2008, total candidates selected in the general category were shown as 595. Even the break up of 49 candidates, who did not join duty after offer of appointment in the general category, was 6. It is further pointed out that the Commission CIVIL WRIT PETITION NO. 5774 of 2007 :{ 7 }: had subsequently recommended three more names of those who belonged to general category and in this manner, only 3 posts remained unfilled. There is not much material difference in this information and the one supplied now. In fact, in Annexure P-7, 5 candidates of general category were statedly rejected out of the total 11. The list of the wait listed candidates is also annexed with Annexure P-7. Anoop Singh at merit list No.602, Alka Rani merit list No.603, Anita Rani merit list No.607, Anil Kumari merit list No.613, Babita Rani merit list No.614 and Nirmala Devi at merit No.618 have been offered appointment. Nirmala Devi, who was originally at merit list No.620, was offered appointment on the basis of change of her merit position to 618. Later, a show cause notice was issued to her which she has challenged as already noticed. Her merit position has been changed to 661-A and on that basis she is now not to be appointed. As per the best case of petitioner Rajvir Singh, he is listed at merit list of the wait listed at 618. He is, thus, at No.7 in the waiting list. There are only 6 vacancies. He seeks appointment on the ground that Raj Kumar, who was clearly ahead of him, has died and, thus, in his place, the petitioner is to be appointed from the waiting list. Nirmala Devi would still seek her right to appointment on the ground that she is ahead of merit than petitioner Rajvir Singh and the change in the merit list as affected, cannot be given effect to as having been made without providing her any opportunity of hearing. In the afore-mentioned background, it is now required to be seen if the petitioners can seek appointment on the ground that they are in the waiting list. In view of the information supplied in the additional affidavit dated 13.8.2009, I am not left with any doubt that CIVIL WRIT PETITION NO. 5774 of 2007 :{ 8 }: the vacancies which would remain unfilled in the general category are 6 in number. Even as per the information supplied to the petitioner and annexed with the petition as Annexure P-7, petitioner Rajvir Singh is at waiting list No.7. As per this merit, the remaining petitioners are also lower in merit to him. Nirmala Devi, respondent No.4 and petitioner in a separate petition is at waiting list No.9 as per her merit. Even if she is to be placed at No.618 because of her date of birth, as was originally done, still she would remain at No.7 of the waiting list, but may be ahead of petitioner Rajvir Singh. Still, she would not be eligible for appointment on the basis of vacancies that remained unfilled. The merit list position of the petitioner as well as respondent No.4 has, however, been changed. This grievance is made by Nirmala Devi in her petition that this could not have been done without affording her an opportunity of hearing. Even if unchanged seniority is to be kept in view, she would be at No.7, whereas the vacancies remanning unfilled are 6. Though one person had died, but on that basis, no case for offering appointment to someone lower in merit would be made out as these posts were advertised in the year 1999. The vacancies were reduced when call for interview given after 3 years of the date of advertisement. Interviews were further held after more than 2 years of the date of written test. During this period and the subsequent period till date, large number of persons would have become eligible for appointment. Even the direction for considering the case of the petitioners was passed in the year 2005. 4 years have since gone bye from the said date. Filling of these vacancies from the merit list prepared in the year 2004 would certainly be unfair. The requirement CIVIL WRIT PETITION NO. 5774 of 2007 :{ 9 }: of seeing the violation of principle of natural justice for changing the merit list of the petitioner Nirmala Devi is really not called for. Her right to seek appointment or remain on the post appointed is not made out from the position that she would pray for being maintained. The reference made by the counsel appearing for her to the judgments in the cases of Balwant Singh Kataria Vs. State of Haryana, 1998(1) Recent Services Judgments 597, Krishan Lal Vs. D.H.B.V.N.Limited and others, 2000(3) Recent Services Judgments 182, Rajinder Pal Garg Vs. The Punjab National Bank, 1993(4) Service Cases Today 711, Harvir Singh Vs. State of Haryana, 1993(4) Service Cases today 573 and Devender Singh Vs. Kurukshetra University and another, 2001(2) Recent Services Judgments 638 would not call for any detailed discussion. No doubt, the benefit once conferred cannot be withdrawn without affording opportunity of hearing and that orders affecting the civil rights of an employee have to be passed after affording opportunity of hearing, but that situation would not arise in the present case. While deciding this case, her claim has been considered on the basis of her unchanged merit position. There is, thus, no need to consider these aspects of the submissions made by the counsel for the petitioner. In view of the above, no case for interference in the writ petitions is made out. The writ petitions are accordingly dismissed. There shall be no order as to costs. August 17, 2009 ( RANJIT SINGH ) ramesh JUDGE