HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.18548 of 2009 (O&M) Date of Decision: 14.09.2011 **** Sharnjit Kaur . . . . Petitioner VS. State of Punjab & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 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. Sukhdev Kamboj, Advocate for the petitioner(s) Ms. Sudeepti Sharma, DAG Punjab **** SURYA KANT, J. (ORAL) (1). This order shall dispose of CWP Nos.18548, 20130 & 20146 of 2009 & 3693 of 2010 as issues involved are common in these cases. For brevity, the facts are being extracted from CWP No.18548 of 2009. (2). The petitioner seeks quashing of the order dated 21.09.2009 (Annexure P5) whereby her claim for appointment as Lecturer in Physical Education in Open category (female), has been rejected. The petitioner sought the above-mentioned appointment on the plea that despite she being higher in merit (71.43%), the candidate, namely, respondent No.3 (Karambir Kaur) cwp no.18548 of 2009.doc - 2 - having lower merit points of 70.05%, has been given appointment. (3). The respondents have filed their reply/affidavit and in preliminary submission Nos.2 &3 thereof, it is averred that :- “2. That claim of the petitioner for her selection for the post of Lecturer in Physical Education in the General category (Female) is not sustainable for the reasons that the last candidate recommended by the Chairman of the selection committee in the category of the petitioner has secured her merit as 73.2851 whereas the petitioner has secured her merit as 71.4373. A copy of revised recommendations is annexed herewith as Annexure R-1. It is pertinent to mention here that the revised recommendations have been made in compliance with the order dated 13.8.2008 (Annexure P4) passed by this Hon’ble Court in Civil Writ Petition No.19264 of 2007 filed earlier by the petitioner along with other candidates. 3. That the name of respondent No.3 Karambir Kaur who is having merit 71.059 i.e. lower than that of petitioner, has been recommended by the Chairman as excluded from the selection list. cwp no.18548 of 2009.doc - 3 - Hence, respondent No.3 would be proceeded against to dispense with her services. It would be worthwhile to submit here that recruitment for all the posts i.e. 13 posts in the category of petitioner has been made and no post is lying vacant. Thus, selection of the petitioner and continuation in service of respondent No.3 despite the fact that the petitioner as well as respondent No.3 do not fall in the selection zone as per Annexure R-1, would result into recruitment of candidates in excess of advertised posts which would be violative of settled principle of law.” (4). In support of the above-mentioned averments, the respondents have placed on record the revised merit list (Annexure R1) wherein the name of respondent No.3 (Karambir Kaur) has been “excluded being lower in merit”. (5). Learned counsel for the petitioner, however, vehemently contends that respondent No.3 is still in service though admittedly she is lower in merit than the petitioner which is violative of Articles 14&16 of the Constitution. This fact has not been specifically denied by the respondents nor Mr. Shashi, Law Officer of the cwp no.18548 of 2009.doc - 4 - Department present in Court, is able to controvert the specific stand taken on behalf of the petitioner. (6). That being the state of affairs, the writ petition is conditionally allowed to the extent that the impugned order dated 21.09.2009 (Annexure P5) is quashed with a direction to respondent Nos.1 & 2 that in case respondent No.3 is still continuing in service, the petitioner shall also be given appointment forthwith notionally and her seniority shall date back to the date when respondent No.3 was appointed. However, if respondents No.1 & 2 take an appropriate decision to terminate services of respondent No.3 being lower in merit and restrict the appointments upto merit No.73.2851 within a period of one month from today, in that event the above-mentioned direction shall become dormant. (7). Ordered accordingly. Dasti. 14.09.2011 vishal shonkar (S u r y a K a n t) Judge