L.P.A. No.92 of 2007 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No.92 of 2007 Date of decision: October 04, 2008. Khushwant Singh ...Appellant(s) v. State of Haryana & Ors. ...Respondent(s) CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri Amar Vivek, Advocate for the Appellant(s). Shri Rameshwar Malik, Advocate, for respondents No.1 & 2. Mrs. Abha Rathore, Advocate for respondent No.3. ORDER Surya Kant, J. - This appeal is directed against the judgment dated 15.2.2007, whereby a learned Single Judge of this Court dismissed CWP No.15738 of 1996 filed by the appellant along with a co-petitioner, as well as against the order dated 22.3.2007 dismissing the appellant's review application No.58 of 2007. [2]. The facts giving rise to this appeal may be summarized as follows:- L.P.A. No.92 of 2007 -: 2 :- [2.1]. Three posts of Storeman were advertised by the Director General, Home Guards and Civil Defence, Haryana. The last date to apply against these posts was 24.7.1995. The appellant and more than 250 other candidates applied but only 37 candidates, including the appellant, qualified for the interview. A selection committee comprising three departmental officers interviewed them and prepared a list of 10 successful candidates in order of merit. The appellant was placed at Sr. No.6 in the above stated list. [2.2]. While the first three candidates in order of merit, namely, Anil Kumar, Suraj Solanki and Ashok Kumar were issued appointment letters on 31.7.1995, two more candidates next in order of merit, namely, Sukhdeep Singh and Surender Singh were also given appointment on 9.8.1995. The appellant who was the next candidate in order of merit, is claimed to have been asked to give his willingness for appointment within 5 days through a letter dated 10.10.1995 Under Postal Certificate. According to the respondents, the appellant failed to give his willingness within the stipulated period, therefore, a similar letter was sent to the next candidate in order of merit, namely, Sanjay Kumar who too failed to do the same within the prescribed period. The respondents claim that so far as the next candidate in order of merit, namely, Arvind Kumar Mishra was concerned, “no contact could be established”. It was, therefore, decided to appoint the next candidate in order of merit, namely, Partap Singh – respondent No.4 (in appeal) to whom instead of issuing any letter asking for his willingness, an appointment order dated 20.10.1995 was issued. He joined the offered post and has since been working as such. [2.3]. The appellant, who was not aware of his selection or placement in the waiting list, filed the writ petition along with a co-petitioner seeking L.P.A. No.92 of 2007 -: 3 :- quashing of the selection and appointment to the posts of Storeman class-III and sought a further direction to the official respondents to hold the process of interview afresh and thereafter make selections in accordance with law. [2.4]. It was only when the official respondents No.1 and 2 filed their counter affidavit that the appellant came to know regarding his placement in the waiting list over and above Partap Singh – respondent No.4 who had already been given appointment on the pretext that the appellant as well as one more candidate Sanjay Kumar failed to give their willingness for the appointment within the stipulated period of 5 days. [2.5]. Controverting the stand taken by the official respondents that he did not turn up to give his willingness for the post despite a communication sent to him, the appellant took the following specific plea in his rejoinder:- “The contents of this para are wrong, false and as such, vehemently denied. Had such a selection list been displayed as alleged, the petitioner No.2 would have been in constant touch with the respondents seeking his appointment. The story of sending the appointment letter by UPC is a fabricated piece of evidence by respondents.” [2.6]. He further reiterated as follows:- “16. The contents of this para of the written statement are wrong, false and as such, vehemently denied, particularly in view of the detailed submissions already made above. Just to adjust respondent No.9, the candidates at Sr. No.3, 4 and 5 of the waiting list i.e., Annexure P-10, a story has been fabricated that offer of appointment was made to L.P.A. No.92 of 2007 -: 4 :- these candidates and that too through UPC letter and not through a Regd. AD letter.” [2.7]. Learned Single Judge, however, has dismissed the writ petition after observing that the allegations of mala fide levelled by the appellant against the then Director General, Home Guards and Civil Defence, Haryana have remained unsubstantiated even though the latter did not controvert the same. Regarding appointment of a person placed lower in merit than the appellant, the learned Single Judge observed that the appellant was a resident of Chandigarh and “when the persons mentioned at No.1 & 2 at the waiting list had been appointed then he should have been vigilant enough and should have taken care to see whether any further post was falling vacant. Even if Partap Singh mentioned at Serial No.6 of waiting list was son of the driver employed in the Punjab Home Guard, it cannot be said that right of Khushwant Singh was ignored”. [2.8]. The appellant thereafter moved a review application highlighting the fact that no letter seeking his willingness to join the post was ever received by him and that the fact situation was manipulated by the respondents so as to appoint a candidate placed lower in merit. The review application was also dismissed by the learned Single Judge after observing that the judgment was pronounced after hearing counsel for the parties and there is no ambiguity which may call for review thereof. [3]. Having heard learned Counsel for the parties at some length and on perusal of the record on September 01, 2008, we were tentatively of the view that since the candidate lower in merit, namely, respondent No.4 was appointed as early as in the year 1995, it may be difficult to interfere in his appointment at this distant point of time and that the question as to L.P.A. No.92 of 2007 -: 5 :- whether the appointment given to him was bad in law, could be examined in the context of directing the respondents to appoint the appellant against an available vacancy. The State Counsel was accordingly directed to seek instructions as to whether or not any vacancy was available in the cadre of Storeman. [4]. Learned Additional Advocate General, on written instructions from the Department, informed that a post of Storeman in the general category meant for direct recruitment was lying vacant and the authorities were not averse to filling up the same. [5]. Thereafter, the appellant has also clarified his stand regarding the claim for back wages in case he is held entitled for appointment against the available vacant post. In his affidavit dated 23.9.2008, the appellant has stated that he “is willing to forego all wages if he is made to join forthwith by the respondent from 1995 till today”. This undertaking was, however, subject to the protection of seniority of the appellant over-and-above respondent No.4. [6]. It, thus, emerges out that on the basis of the selection list prepared by the Departmental Selection Committee on 30.7.1995, the appointments were effected by respondents no.1 & 2 in the manner tabulated below:- Name of Person Issue of letter of willingness Issue of appointment Time period Anil Kumr 31.7.1995 15 days Suraj Solanki 31.7.1995 15 days Ashok Kumar 31.7.1995 15 days Sukhdeep Singh 09/08/95 15 days Surinder Singh 09/08/95 15 days Khushwant Singh - appellant 10.10.1995 UPC 5 days L.P.A. No.92 of 2007 -: 6 :- Name of Person Issue of letter of willingness Issue of appointment Time period Sanjay Kumar 16.10.1995 5 days Arvind Kumar Mishra No contact established Partap Singh- respondent No.4 20.10.1995 15 days Najma Appointment not issued as no vacancy left [8]. It would be beyond any-body's comprehension and at least the respondents have miserably failed to explain as to why no appointment letter was sent to the appellant on 10.10.1995 by a registered post giving him also 15 days time to join as was the practice followed while appointing the candidates who were placed above or lower to him in merit. [9]. In the absence of any plausible explanation by the official respondents for giving preferential treatment to a candidate lower in merit, we are inclined to accept, at least prima facie, the reasons explained by the appellant as to why he and Sanjay Kumar both were deprived of appointment despite being higher in merit. There is no denial to the fact that father of Partap Singh – respondent No.4, namely, Shri Pirthi Singh has been working as a Driver in the office of Director General, Home Guards and Civil Defence at the relevant time. He moved an application on 13.9.1995 with a prayer that keeping in view the services rendered by him to the Department, his son may be appointed. His application was set into motion on that very day, followed by the appointment of his son Partap Singh on 20.10.1995. May be that the allegations to the extent that the said Pirthi Singh, Driver was working with respondent No.3, the then Director General, Home Guards and Civil Defence, are incorrect or exaggerated, the L.P.A. No.92 of 2007 -: 7 :- unusual course adopted by the official respondents to appoint Partap Singh - respondent No.4, does suggest their favourable bias towards him. [10]. There is not even an iota of evidence on record to show that the appellant was made aware of his placement in the waiting list above Partap Singh. The fact that the candidate placed next in order of merit, namely, Sanjay Kumar was also deprived of the appointment in the same fashion, and the plea that whereabouts of another selected candidate, who was next in merit, were unknown, is sufficient to hold that all-out efforts were made to accommodate Partap Singh – respondent No.4. Pertinently, the said Partap Singh has not come forward to controvert the allegations made against him either before the learned Single Judge or in this appeal. The facts of the case, thus, speak for themselves that the action of the official respondents in denying appointment to the appellant is wholly arbitrary and is directly in the teeth of Articles 14 and 16 of the Constitution. [11]. We are, however, not inclined to set aside the appointment of respondent No.4 (Partap Singh) at this belated stage as it would not only cause extreme hardship to him but would also take away the source of livelihood of his dependent family members, more so when a vacant post of Storeman meant for direct recruitment is available to accommodate the appellant. The undertaking given by the appellant that he will not claim back wages, would further ensure the non-payment of salary to two persons against one post during the same period. [12]. Consequently and for the reasons afore-stated, we allow this appeal; set aside the judgment of the ld. Single Judge and while moulding the relief, allow the writ petition to the extent that respondent no.1 & 2 are directed to offer appointment to the appellant to the post of Storeman L.P.A. No.92 of 2007 -: 8 :- forthwith but not later than one month from the date of receipt of a certified copy of this order. The appellant, however, shall not be entitled to claim the arrears of pay or other monetary benefits as undertook by him before this Court though he shall be deemed to have been appointed from the date when Partap Singh – respondent No.4 was appointed. The appellant shall also be entitled to be ranked senior to the said Partap Singh as per the order of merit and shall also be entitled for the notional service benefits. There shall be no order as to costs. [ Surya Kant ] Judge October , 2008. [T.S. Thakur] kadyan Chief Justice