LPA No.1012 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No. 1012 of 2009 (O&M) Date of decision 1 .9.2010 Jaswinder Kaur ... Appellant Versus State of Punjab and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr.R.K.Sharma ,Advocate for the appellant Mr. T.P.Singh, Advocate for respondent no. 4 1.To be referred to the Reporter or not ? 2.Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The instant appeal filed under Clause X of the Letters Patent is directed against the judgement dated 24.8.2009 passed by the learned Single Judge dismissing the writ petition of the appellant. The appellant has claimed in the petition that the order dated 24.3.2009 (P.15) rejecting her representation against her termination order was liable to be quashed. She had also prayed for quashing order dated 3.6.2009 (P.21) and reinstatement in service. Brief facts of the case are that vide advertisement dated 4.3.2006 issued by the Director Rural Development and Panchayat, Punjab applications were invited for appointment of Teachers in Primary Schools in rural areas. The petitioner who possess the educational qualification of B.Sc., B.Ed applied for the post and as per the Punjab Panchayati Raj Primary Teachers Recruitment and Service Condition Rules, 2006 (for brevity 'the Rules') the appointment on the post of teachers were to be made LPA No.1012 of 2009 2 on the basis of percentage of marks obtained in Matric, +2 and ETT Examination. In case of non availability of eligible ETT candidates, the candidates having B.A. B.Sc./ B.Com and B.Ed qualifications were to be considered. In her application, the petitioner has disclosed her marks in the B.Ed examination to be 771 out of 1200 marks which included the internal assessment marks. According to original documents she has secured 492 out of 800 marks. The case of the petitioner before the learned Single Judge was that she has totalled up internal and external marks obtained by her. It is conceded as a fact that as per Guru Nanak Dev University Amritsar, from where she has passed her B.Ed examination degree. the marks are awarded to the students on the basis of their external assessment only. On the basis of her projection of marks in the application form which included the marks of internal assessment she was selected and was appointed on the post of ETT Teacher on 10.8.2006. On a representation made by the Employees Union, Secretary Rural Development and Panchayat Department ordered for holding of enquiry and it was found that she was illegally selected on the basis of incorrect marks mentioned in her application. Accordingly her services were terminated vide order dated 5.11.2008. In the first round of litigation when she filed CWP No. 20614 of 2008 the order of her termination dated 5.11.2008 was set aside on the ground that principles of natural justice were not followed. The writ petition was disposed of with a direction to respondent no. 4 to pass an order after affording an opportunity of hearing to the appellant. The order dated 24.3.2009 (P.15) has now been passed terminating her services after issuing her show cause notice and receiving her reply. The impugned order clearly LPA No.1012 of 2009 3 mentions that if the marks of the appellant in B.Ed degree are taken to be 492 out of 800 then her merit comes to 121.50 % whereas the merit of the last selected candidate in the OBC category was 122.25%. The appellant submitted another representation on 25.5.2009 asserting that she had secured more marks than Smt. Kulwant Kaur, respondent no.6 and the matter be enquired afresh. She also prayed that if she is found more meritorious than Kulwant Kaur, respondent no. 6 then she be reinstated in service. However, her representation was considered and rejected vide order dated 3.6.2009. The aforesaid two orders were challenged before the learned Single Judge and the writ petition has been dismissed with the following observations: “ A perusal of the impugned orders shows that result of ETT in pursuance of the advertisement dated 4.3.2006 was declared in two parts. The first list of eligible ETT candidates was issued on 7.7.2006 in which result of 351 candidates was declared, out of which 21 candidates belonged to OBC category. The second list of eligible B.A./B.Ed candidates was issued on 7.8.2006. In the said list, result of 250 candidates was declared, out of which 56 candidates belonged to OBC category. The petitioner was wrongly selected in the said list. The merit of the last successful candidate was 122.25 marks. If the marks of the petitioner in B.Ed Degree are taken as 492 out of 800 marks, then her merit comes to 121.50%. Therefore, it was found that the petitioner was wrongly got selected on the basis of the wrong information supplied by her in her application form, regarding the marks obtained by her in B.Ed examination. This LPA No.1012 of 2009 4 factual position has not been controverted. However, it has been explained that since in the Detailed Marks Card, the internal marks were also mentioned, therefore, under the bonafide mistake, the petitioner had mentioned those marks. But the fact remains that only the external marks of the petitioner in B.Ed are to be taken into consideration and as per those marks, she could not have been selected in the second list. In her reply as well as personal hearing before the authorities, the petitioner could not controvert this factual position. In view of this, I do not find any illegality in the order, whereby appointment of the petitioner was cancelled. Faced with this situation, learned counsel for the petitioner argued that one Kulwant Kaur, who had applied in response to the earlier advertisement dated 4.3.2006, but could not be selected, again applied against the subsequent advertisement dated 28.11.2006 and was selected, though the total percentage of her marks as per the calculation according to the criteria comes to less than the petitioner. Learned counsel submits that the petitioner should be given the benefit of corrigendum issued on 28.11.2006, wherein it was mentioned that the candidates who had earlier applied need not to apply again. The petitioner cannot be given the said benefit, as she did not apply against the subsequent advertisement. She also cannot be given the benefit of corrigendum. She did not apply against the subsequent advertisement. Therefore, case of the petitioner cannot be compared with Kulwant Kaur, who was LPA No.1012 of 2009 5 selected against the subsequent advertisem3nt on the basis of her merit position. Thus, I do not find any merit in this petition.” When the matter came up for consideration on 6.8.2010, we noticed that the appellant had participated in the selection process of ETT Teachers under the OBC category and respondents have subsequently held three selections where her candidature obviously could not be considered because she had already been selected. The respondents have been following the criteria of selection and takes into consideration the marks obtained in B.A./B.Ed. It was on the basis of the aforesaid criteria that her case could have been considered because no marks for viva voce test etc. are awarded. Accordingly in the subsequent selections if her marks in the OBC category are more than the last selected candidate then she could be adjusted as ETT teacher w.e.f. the subsequent date. The counsel for the appellant asserted that one Smt. Kulwant Kaur, respondent no.6 belonging to OBC category of the petitioner has secured 121.28 % marks whereas the appellant had secured 121.50% marks which are more than her. In order to secure authentic information, we directed respondent no.4 to file a detailed affidavit which has been filed. In para 6 of the affidavit it is conceded that Smt. Kulwant Kaur had secured 121.28% marks and the same reads as under: “ 6. That in pursuance to the advertisement dated 25.11.2006/28.11.2006, 59 ETT qualified candidates were appointed out of which 3 belongs to OBC category. In this selection 160 B.A.B.Ed. qualified candidates were appointed, which included 22 candidates of OBC category. The highest merit of OBC candidates was 141.00 % marks and the last LPA No.1012 of 2009 6 selected candidate was Kulwant Kaur d/o Harjinder Singh with 121.28% marks. Since she could not be selected on 7.8.2006, therefore, her previous application was considered, as her application in pursuance of the advertisement dated 28.11.2006 as per the note in the advertisement. Kulwant Kaur d/o Harjinder Singh has been transferred by the Director Rural Development and Panchayat, Punjab in Government Primary School Singhpura, District Mohali, vide order dated 25.6.2010. Number of the teachers of various categories have been transferred to District Ropar also.” It is thus clear that marks of Kulwant Kaur, respondent no. 6 are lower than the marks of the appellant. Mr. R.K.Sharma, learned counsel for the appellant has vehemently argued that once the criteria of selection is simple and the note in the advertisement had stated that those applicants who had already applied earlier did not need to apply again, then the case of the appellant deserved consideration in the subsequent selections. According to the learned counsel, the appellant was selected in the selection held in pursuance of advertisement dated 4.3.2006 and having been selected she was not considered in respect of the posts advertised on 25.11.2006. The submission appears to be that once her result has been cancelled the respondents were under an obligation to consider her case to find out her merit viz-a-viz. the merit of last selected candidate in the subsequent selections. The marks of the appellant are more than the marks obtained by the last selected candidate in the selections made in pursuance of advertisement dated 25.11.2006/28.11.2006 the appellant deserved to be LPA No.1012 of 2009 7 given appointment. Mr. T.P.Singh, learned counsel for the respondent has however argued that such a procedure of reviewing the selection cannot be adopted because it would result in inducting many more persons who are like the appellant. Having heard the learned counsel for the parties, we are of the considered view that the appeal deserves to succeed. It has come on record that the appellant was selected and appointed in pursuance of selection process initiated vide advertisement dated 4.3.2006. The petitioner is entitled to consideration in the subsequent selection on merit. The respondents have expressly inserted the following note in the advertisement dated 25/28.11.2006 which reads thus: “ Those candidates who had already applied against earlier advertisement they need not apply again. Even otherwise those candidates who had applied in response to advertisement of some other agency or other department have to apply again. Issued by Director Rural Development and Panchayat Punjab.” It is evident that any person who remained unsuccessful in the selection process completed in pursuance of advertisement dated 4.3.2006 was to be considered in the subsequent selection and was not even required to apply afresh. It is true that the appellant had once been selected and appointed yet her appointment was found irregular as she had added the marks secured in internal assessment which was not permissible and the same were reflected in her application. The net result is that having been found unsuccessful in pursuance of selection process of the advertisement dated 4.3.2006 her case was required to be considered in the selection LPA No.1012 of 2009 8 process initiated vide advertisement dated 25/28.11.2006 (P.2). It is in the later selection that Kulwant Kaur, respondent no. 6 with lower marks have been selected and appointed. Therefore, on the basis of merit, the appellant deserved to be appointed. Consequently the order dated 24.3.2009 (P.15) and order dated 3.6.2009 (P.21) are liable to be set aside. As a sequel to the aforesaid discussion, this appeal succeeds and is allowed. The order dated 24.3.2009 (P.15) and order dated 3.6.2009 (P.21) are set aside. The impugned judgement dated 24.8.2009 is also set aside and the writ petition is allowed in the peculiar facts and circumstances. Respondent nos. 1 to 3 are directed to appoint the appellant on the post of ETT Teacher w.e.f. the date Smt. Kulwant Kaur, respondent no. 6 was appointed. She shall be entitled to reinstatement with all consequential benefits for the purposes of fixation of pay, seniority etc. but she shall not be entitled to payment of any salary for the period she had remained out of service. In the peculiar facts and circumstances of the case, we do not pass any order as to costs. (M.M.Kumar) Judge ( Ritu Bahri ) 1 .9.2010 Judge okg