C.W.P No. 12312 of 2008 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 12312 of 2008 Date of decision : February 16, 2009 Dr. Vinay Kumar, ...... Petitioner (s) v. State of Haryana and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. R.K.Malik, Sr. Advocate with Mr. Parveen.K. Rohila, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG Haryana for respondents No.1 and 2. Mr.Hemant Bassi, Advocate for respondent No.3. Mr. Anurag Goel, Advocate for respondent No.4. Mr.Naveen Batra, Advocate for respondent No.5. *** 1. Whether Reporters of Local Newspapers 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 ? *** AJAY TEWARI, J (Oral) The petitioner applied for the post of Lecturer in Hindi in respondent No.3-College, reserved for Backward Class. The selection process was held and respondent No.5 was selected and the petitioner was placed at Sr. No.2 of the merit list. The petitioner challenged the selection C.W.P No. 12312 of 2008 ::2:: of respondent No.5 on the ground that she was originally from the Jat community, had married a Backward Class candidate but this marriage would not bestow upon her the benefit of Backward Class certificate. In Mrs Valsamma Paul vs Cochin University & others, 1996(2) SCT 248, the Hon'ble Supreme Court held as follows :- “35. The recognition of the appellant by the members of Latin Catholic would not, therefore, be relevant for the purpose of her entitlement to the reservation under Article 16(4) for the reason that she, as a member of the forward caste, had advantageous start in life and after her completing education and becoming major married Yesudas; and so, she is not entitled to the facility of reservation given to the Latin Catholic, a backward class.” After the filing of the writ petition, respondent No.6 (the caste certificate issuing Authority) reopened the entire matter and by order dated 16.10.2008, cancelled the Backward Class certificate issued to respondent No.5 by relying upon the instructions of the State of Haryana dated 6.9.2007 which also mandated that a person of general category marrying a person belonging to a reserved category would not be entitled for the benefit of reservation. In the circumstances respondent No.5 having been found not eligible was removed from service. Thus, the argument of counsel for the petitioner is that since this entire action took place within the life of the selection committee, the petitioner would now have a right to be appointed since the appointment of respondent No.5 was set aside on the ground of basic ineligibility and in the circumstances it would be deemed that the C.W.P No. 12312 of 2008 ::3:: petitioner was selected at Sr. No.1 of the select list. Counsel for respondent No.4 has, however, argued that with the appointment of respondent No.5 the advertised post got consumed and in the circumstances it would be incumbent upon respondent No.3-College to re-advertise the post. He has relied upon a decision of this Court in Satish Kumar vs The Vice Chancellor, Kurukshetra University, 1998(1) SCT 138, where a Single Bench held as follows :- “27. In the present case, only one post of S.D.O (Civil) was advertised. The Selection Committee had prepared the select/ranking list on April 30, 1993. Sunil Kumar's name was at serial No.1 in the select list. He was given appointment. He also joined and worked for few months but resigned from the post. Thus, in view of the dictum of the Apex Court in Madan Lal's case (supra) and Surinder Singh's case (supra), after the joining of Sunil Kumar, the select/ranking list became extinct. Therefore, respondent No.1 has rightly cancelled the select/ranking list. After the resignation of Sunil Kumar, if the respondents wanted to fill up the said vacancy, they were required to re-advertise the post so that other persons also get a chance to apply for that post.” In my opinion, the argument being sought to be built up by respondent No.4 is fallacious. A fraudulent filling up of a post would not result in that post having been consumed and if that is so then the dictum of law propounded in Satish Kumar's case (supra) would not apply. The present case is a case where the selected candidate did not have essential C.W.P No. 12312 of 2008 ::4:: eligibility and thus, could not only she have been appointed but infact could not have been even considered. Viewed from that angle, it can be said that the selection of respondent No.5 was still-born and this would not have legal effect of completely eroding the claim of the petitioner. In any case, it has to be noticed that this objection is not being taken by the employer who could have urged any reasons which could have weighed with it for making a fresh appointment and thus, could defeat the claim of the petitioner for being considered for appointment. There being no such plea having been raised by the employer, this argument would not be available to the affiliating authority. In the circumstances, this writ petition is disposed of with a direction to respondent No.3-College to consider the case of the petitioner for appointment as Lecturer in Hindi within a period of two months from the receipt of a certified copy of this order. ( AJAY TEWARI ) February 16, 2009. JUDGE `kk'