L.P.A. NO. 181 OF 2007. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 181 of 2007. Date of decision: December 10th ,2008. Radhe Sham Sharma Appellant through Shri Sanjiv Gupta, Advocate. Versus State of Haryana & Ors. Respondents through Mr.Rameshwar Malik, Addl.AG, Haryana, for the respondents. 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. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. This appeal is directed against the judgment dated 1st August, 2007 passed by a learned Single Judge of this Court whereby CWP No. 667 of 2003 filed by respondent No. 3 has been allowed and while setting aside the appointment of the appellant to the post of Scientist Grade-I, respondent No. 3 has been directed to be appointed against the same. [2]. The facts giving rise to this appeal may be summarized as follows:- [3]. The Director, Environment Department, Haryana, vide Memo dated 15th April, 2002, circulated a post of Scientist Grade-I which was decided to be filled up on transfer/deputation basis from amongst the officers/officials already in service of the States or the Union Government provided that they fulfill the prescribed academic L.P.A. NO. 181 OF 2007. ::-2-:: qualifications and experience. [4]. The appellant and respondent No. 3 applied in response thereto but instead of interviewing the applicants, the Department re- circulated the said post vide Memo dated 8th November, 2002. The appellant who was already working as a Senior Scientific Assistant in the Directorate of Environment as well as respondent No. 3, who at that time, was working as an Assistant Chemist in the Directorate of Archeology and Museum, Government of Haryana, again applied in response to the aforementioned circular. [5]. It further appears that only three candidates had applied. However, the third candidate did not turn up for the interview and only two candidates, namely, the appellant and respondent No. 3 were interviewed by the Selection Committee on 10th December, 2002. The counter-affidavit filed by the official respondents does indicate that both, the appellant and respondent No.3, possessed the requisite qualifications/experience. [6]. The original records produced, on our asking, by the learned State Counsel, reveal that though both the appellant and respondent No. 3 secured 64 marks each, the Selection Committee recommended the name of respondent No. 3 for appointment on the ground that she was older in age. [7]. The State Government, however, turned down the recommendations of the Selection Committee and preferred the appellant for appointment on the ground that he was already working in the Department as Senior Scientific Assistant. In other words, the Government, in its wisdom, thought that the appellant would be more L.P.A. NO. 181 OF 2007. ::-3-:: suitable for the post of Scientist Grade-I as he had working experience in the same Department. [8]. Aggrieved, respondent No. 3 challenged the decision of the State Government before this Court in a writ petition which has since been allowed by the learned Single Judge on the ground that when both the candidates secured 64 marks each and were 'bracketed' together, “preference has to be given to the person who is older in age”. As a consequence thereto, while setting aside the appointment of the appellant, respondent No. 3 has been directed to be appointed. It is an admitted fact that pursuant to his appointment, the appellant had worked as Scientist Grade-I for a period of one year and nine months, but subsequently, operation of his appointment order was stayed by this Court. It is also not in dispute that in deference to the directions issued by the learned Single Judge, respondent No. 3 has already been appointed as Scientist Grade-I and has been working as such. [9]. Taking into consideration the above noticed subsequent events, a Division Bench of this Court passed the following order on 8th February, 2008:- “In view of the fact that there is another post which is lying vacant, it would be appropriate that the respondents may consider the appellant for that post. In this regard, learned Additional Advocate General, Haryana, prays for time to seek instructions. Re-notify for hearing on 20.02.2008”. [10]. In deference to the said order, learned Additional Advocate General, Haryana, on written instructions, stated at the Bar L.P.A. NO. 181 OF 2007. ::-4-:: that in fact two posts of Scientist Grade-I were lying vacant in the Department and the Competent Authority was not averse to adjust the appellant against one of the vacant posts more so when hardly any other eligible official/officer from other departments of the State or the Union Government is willing for appointment as Scientist Grade-I in the Environment Department. Learned Additional Advocate General, Haryana further pointed out that in fact due to non-availability of the qualified persons, an ad-hoc arrangement had been made by appointing an ineligible person against one of the vacancies, though he was reverted later on. [11]. On his turn, the appellant also filed an affidavit dated 4th September, 2008 explaining that pursuant to his appointment, he worked from 22nd January, 2004 till he was reverted on 6th October, 2005 and that in the event of his appointment as Scientist Grade-I, “he is ready to forego the claim with respect to wages/arrears”, though he wanted that the issue regarding determination of inter-se seniority between him and respondent No. 3 may be left to be decided by the Department as per the existing Rules. The said affidavit being conditional was not acceptable, therefore, the appellant filed yet another affidavit dated 4th September, 2008, stating that “he is ready to forego the seniority as well as back-wages on the post of Scientist Grade-I vis-à-vis respondent No.3”. [12]. We have heard learned counsel for the parties at some length and perused the record. We have also gone through the judgments in the cases of [i] Dr. Krushna Chandra Sahu & Ors. v State of Orissa & Ors., 1995[5] SLR, 337 and [ii] Director, AIIMS L.P.A. NO. 181 OF 2007. ::-5-:: etc. v Dr. Nikhil Tandon & Ors., 1996[2] RSJ, 81 cited at the Bar. [13]. Recruitment to the post of Scientist Grade-I is governed by the Rules known as the Haryana Environment Department [Group-A] Service Rules, 1999 framed under proviso to Article 309 of the Constitution of India. While Rule 7 read with Appendix 'B' of the Rules prescribes the essential qualifications, Rule 9[1][b] thereof provides the method of recruitment, namely, direct recruitment or by transfer or deputation. Rule 11 provides the mode of determination of seniority inter-se the members of the service and according to Clause [d] of 3rd Proviso thereto, inter-se seniority of members of the service appointed by transfer from different cadres shall be determined according to pay and if the rates of pay drawn are also the same, then by the length of their service and if the length of service is also the same, the older member shall be senior to the younger member. [14]. The solitary question to be determined by this Court is as to whether, in the absence of any prescribed criteria or guidelines, the Selection Committee could recommend the name of respondent No. 3 for appointment on the ground that she was older in age? True it is that a Selection Committee constituted under the Rules does not have jurisdiction to lay down the criteria for selection unless they are authorized specifically in that regard by the Rules. The basis for selection has to be provided by the Rule Making Authority and the Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor such power can be assumed by necessary implication. [Ref.: Dr.Krushna Chandra Sahu’s case L.P.A. NO. 181 OF 2007. ::-6-:: [supra]. It is equally well settled by their Lordships of the Supreme Court in Dalpat Abasaheb Solunke v Dr. B.S.Mahajan, 1990[1] SLR, 849 that in exercise of writ jurisdiction, the recommendations of a Selection Committee can be interfered with only on limited grounds, like, illegality or material irregularity in the constitution of the Committee or in its procedure vitiating the selection or proved mala- fide affecting the selection. [15]. The appellant or the third respondent have no grievance against the composition or action of the Selection Committee to the extent of awarding 64 marks each and bracketing them together. They are, however, aggrieved at one or the other action of the Selection Committee or the State Government which turned the table firstly in favour of respondent No. 3 but eventually in favour of the appellant. While the appellant contends that the Selection Committee, in the absence of any authorization to that effect by the State Government, could not have recommended the name of respondent No. 3 alone for appointment merely because she was older in age, respondent No. 3 takes exception to the decision of the State Government in appointing the appellant, as according to her, the recommendations made by the Selection Committee could not be tinkered with unless there existed some strong and valid reasons. [16]. On a thoughtful consideration of the matter, we find that the reason assigned by the State Government in over-ruling the recommendations of the Selection Committee, namely, that the Appellant was already working in the Department as Senior Scientific Assistant, was totally irrational and suffers from material irregularity. L.P.A. NO. 181 OF 2007. ::-7-:: The fact that the appellant had experience of working as Senior Scientific Assistant in the same department must have weighed with the Selection Committee at the time of adjudging his suitability, therefore, no additional weightage could be given to the appellant on that count. We are also of the view that the Rules of the game ought to have been settled well before the actual start of the game. In other words, there ought to have been some provision either in the Rules or in the Administrative Instructions to untie a such like tied situation. We, however, can not be oblivious of the fact that ordinarily in such an eventuality, the candidate older in age gets priority in the matter of appointment, unless provided otherwise. No interference in the directions issued by the learned Single Judge that respondent No. 3 being older in age, be given preference in appointment, is called for by us and we order accordingly. [17]. Adverting to the appellant’s claim for appointment, two posts of Scientist Grade-I are admittedly lying vacant. The past experience of the authorities unequivocally suggests that either the qualified candidates are not available and/or they are un-willing to join the respondent Department. The appellant, besides being fully eligible, in a way, stood selected as he also secured marks equal to respondent No. 3, who was recommended for the appointment. The appellant has already worked on the afore-stated post for a period of more than one year and nine months. The fact that the official respondents are not averse to accommodate the appellant and, also taking cue from the observations made by the Supreme Court in Dr. Nikhil Tandon’s case [supra] suggesting even creation of another L.P.A. NO. 181 OF 2007. ::-8-:: post to accommodate a highly qualified candidate, placed at Sr. No. 2 in the Selection Panel, we find no legal impediment in the appellant's way for appointment against one of the vacant post. In view of the undertaking given by the appellant by way of his affidavit [s] dated 4th September, 2008, to which he shall remain bound, the anomalous situation like 'drawing pay by two incumbents against one post', is also ruled out. It would mean that the appellant shall be appointed afresh against one of the available vacancies and since his appointment would not relate back to the date of his original appointment, i.e., 22nd January, 2004, he shall also rank junior to respondent No.3. [18]. For the reasons afore-stated, this appeal is accepted in part and the judgment under appeal is modified to the extent that while appointment of respondent No. 3 remains intact, the appellant shall also be appointed as early as possible but not later than two months from today, against one of the vacant posts of Scientist Grade-I and shall be treated as a fresh appointee with no claim for back wages and/or seniority. [19]. There shall be no order as to costs. [ SURYA KANT ] JUDGE December 10 ,2008. [ T.S.THAKUR ] dinesh CHIEF JUSTICE