Case: Narender Singh Vs. The State of Haryana &amp; Ors

no stretch of imagination, it can be said that there was any delay and/or lapse or fault on the part of the appellant. The advertisement for 1647 posts was issued by the Haryana Public Service Commission on 16.02.2016. The last date to submit the form online was 15.03.2016. As per the advertisement, the appellant was required to submit the NOC from his employer, which in the present case is District Elementary Education Officer, at the time of interview. The appellant applied for issuance of NOC on 22.03.2016 well in advance. The said application was received vide Receipt No. 4223 dated 04.04.2016 in the office of District Elementary Education Officer, Jhajjar. The appellant appeared for the written examination for the post in question on 05.03.2017. The result of the written examination was declared on 06.11.2017 and the appellant also cleared the written examination. As observed hereinabove, the appellant was to produce an NOC at the time of interview. Therefore, in anticipation that non-receipt of the NOC may come in his way in getting the appointment therefore, the appellant filed the writ petition before the High Court being CWP No.27864 of 2017 on 05.12.2017 for issuance of the direction to the employer to release the NOC. The learned Single Judge passed the interim order in favour of the appellant in the aforesaid CWP No.27864 of 2017 vide order dated 07.12.2017 directing that if he falls within the zone of consideration for being called for an interview for the post in question, shall be provisionally interviewed, regardless of the fact that an NOC has not been issued so far by the Department of Elementary Education. 7.2 It is not in dispute that pursuant to the interim order dated 07.12.2017, the appellant was interviewed provisionally. However, his result was kept in a sealed cover. Thus, during pendency of the aforesaid writ petition and despite the fact that pursuant to the interim order dated 07.12.2017, the appellant was provisionally interviewed, the Public Service Commission declared the result of final selection in respect of the interviews conducted from 12th to 14th December, 2017 on 15.12.2017 and the actual appointments were made on 12.07.2018. In the meantime, the appellant received the NOC on 06.06.2018 from his employer – District Elementary Education Officer and immediately on receipt of the same, the same was produced by him before the Public Service Commission on 08.06.2018, i.e., even before the actual appointments were made by the Public Service Commission, which were made on 12.07.2018. Thus, from the aforesaid, it can be seen that there was no delay and/or any fault on the part of the appellant. Whatever was the lapse and/or the delay was, it was on the part of the employer of the appellant, who did not issue the NOC though applied on 22.03.2016 and which was issued only on 06.06.2018 and that too after the intervention of the High Court. Even the learned Single Judge also noted that there was a delay and/or lapse on the part of the District Elementary Education Officer, and therefore, even the learned Single Judge also imposed the cost of Rs.50,000/- on the employer of the appellant. 7.3 Once it is found that there was no lapse and/or delay on the part of the appellant and /or there was no fault of the appellant in not producing the NOC at the relevant time and when it was produced immediately on receipt of the same and that too before the appointments were made and when it is found that the last candidate, who is appointed, i.e., respondent No.4 herein is having less marks than the appellant and thus the appellant is a more meritorious candidate than the last candidate appointed, i.e., respondent No.4, to deny him the appointment is not justifiable at all. He cannot be punished for no fault of him. Both, the learned Single Judge as well as the Division Bench of the High Court have committed grave error in not exercising the jurisdiction vested in it and in not directing the respondents to appoint the appellant though he is found to be more meritorious candidate than the last candidate appointed, i.e., respondent No.4. 7.4 Now, so far as the submission on behalf of the respondent No.4, not to disturb and/or cancel the appointment of respondent No.4 and to continue him in service is concerned, it cannot be disputed that he has been working as the Assistant Professor (History) since 12.07.2018, i.e., for more than three years. It is nobodys case that he got the appointment in connivance with the authority. At the relevant time, he was appointed as per merits. Thus, he has been appointed after following due procedure of selection. It is also reported that the respondent No.4 is a Ph.D. and is around 40 years of age. It is also reported that after the impugned selection, there was a fresh selection, however, the respondent No.4 did not apply as he was already selected and appointed on 15.12.2017. Had the respondent No.4 not been selected on 15.12.2017, in that case, he would have applied in the forms, which were issued for Assistant Professor by Haryana Public Service Commission by advertisement No. R.G 17/2017 and the last date for submitting the application was 15.03.2019. It is also reported that by now he has also become age bar. It is also reported that if the appointment of the respondent No.4 is cancelled and the respondent No.4 is disturbed, his entire family would have to suffer. It is reported that respondent No.4 has two daughters one aged three years and other one and a half years and wife and an old mother and that he is the sole bread earner in the family. It is also reported that there are in all around 244 sanctioned posts for Assistant Professor (History) and there is still requirement of 93. Therefore, it is prayed to not to disturb the respondent No.4 and to direct the State to accommodate him on another vacant post of Assistant Professor (History).

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7.1 From the chronological dates and events reproduced herein above by no stretch of imagination, it can be said that there was any delay and/or lapse or fault on the part of the appellant. The advertisement for 1647 posts was issued by the Haryana Public Service Commission on 16.02.2016. The last date to submit the form online was 15.03.2016. As per the advertisement, the appellant was required to submit the NOC from his employer, which in the present case is District Elementary Education Officer, at the time of interview. The appellant applied for issuance of NOC on 22.03.2016 well in advance. The said application was received vide Receipt No. 4223 dated 04.04.2016 in the office of District Elementary Education Officer, Jhajjar. The appellant appeared for the written examination for the post in question on 05.03.2017. The result of the written examination was declared on 06.11.2017 and the appellant also cleared the written examination. As observed hereinabove, the appellant was to produce an NOC at the time of interview. Therefore, in anticipation that non-receipt of the NOC may come in his way in getting the appointment therefore, the appellant filed the writ petition before the High Court being CWP No.27864 of 2017 on 05.12.2017 for issuance of the direction to the employer to release the NOC. The learned Single Judge passed the interim order in favour of the appellant in the aforesaid CWP No.27864 of 2017 vide order dated 07.12.2017 directing that if he falls within the zone of consideration for being called for an interview for the post in question, shall be provisionally interviewed, regardless of the fact that an NOC has not been issued so far by the Department of Elementary Education.7.2 It is not in dispute that pursuant to the interim order dated 07.12.2017, the appellant was interviewed provisionally. However, his result was kept in a sealed cover. Thus, during pendency of the aforesaid writ petition and despite the fact that pursuant to the interim order dated 07.12.2017, the appellant was provisionally interviewed, the Public Service Commission declared the result of final selection in respect of the interviews conducted from 12th to 14th December, 2017 on 15.12.2017 and the actual appointments were made on 12.07.2018. In the meantime, the appellant received the NOC on 06.06.2018 from his employer – District Elementary Education Officer and immediately on receipt of the same, the same was produced by him before the Public Service Commission on 08.06.2018, i.e., even before the actual appointments were made by the Public Service Commission, which were made on 12.07.2018. Thus, from the aforesaid, it can be seen that there was no delay and/or any fault on the part of the appellant. Whatever was the lapse and/or the delay was, it was on the part of the employer of the appellant, who did not issue the NOC though applied on 22.03.2016 and which was issued only on 06.06.2018 and that too after the intervention of the High Court. Even the learned Single Judge also noted that there was a delay and/or lapse on the part of the District Elementary Education Officer, and therefore, even the learned Single Judge also imposed the cost of Rs.50,000/- on the employer of the appellant.7.3 Once it is found that there was no lapse and/or delay on the part of the appellant and /or there was no fault of the appellant in not producing the NOC at the relevant time and when it was produced immediately on receipt of the same and that too before the appointments were made and when it is found that the last candidate, who is appointed, i.e., respondent No.4 herein is having less marks than the appellant and thus the appellant is a more meritorious candidate than the last candidate appointed, i.e., respondent No.4, to deny him the appointment is not justifiable at all. He cannot be punished for no fault of him. Both, the learned Single Judge as well as the Division Bench of the High Court have committed grave error in not exercising the jurisdiction vested in it and in not directing the respondents to appoint the appellant though he is found to be more meritorious candidate than the last candidate appointed, i.e., respondent No.4.7.4 Now, so far as the submission on behalf of the respondent No.4, not to disturb and/or cancel the appointment of respondent No.4 and to continue him in service is concerned, it cannot be disputed that he has been working as the Assistant Professor (History) since 12.07.2018, i.e., for more than three years. It is nobodys case that he got the appointment in connivance with the authority. At the relevant time, he was appointed as per merits. Thus, he has been appointed after following due procedure of selection. It is also reported that the respondent No.4 is a Ph.D. and is around 40 years of age. It is also reported that after the impugned selection, there was a fresh selection, however, the respondent No.4 did not apply as he was already selected and appointed on 15.12.2017. Had the respondent No.4 not been selected on 15.12.2017, in that case, he would have applied in the forms, which were issued for Assistant Professor by Haryana Public Service Commission by advertisement No. R.G 17/2017 and the last date for submitting the application was 15.03.2019. It is also reported that by now he has also become age bar. It is also reported that if the appointment of the respondent No.4 is cancelled and the respondent No.4 is disturbed, his entire family would have to suffer. It is reported that respondent No.4 has two daughters one aged three years and other one and a half years and wife and an old mother and that he is the sole bread earner in the family. It is also reported that there are in all around 244 sanctioned posts for Assistant Professor (History) and there is still requirement of 93. Therefore, it is prayed to not to disturb the respondent No.4 and to direct the State to accommodate him on another vacant post of Assistant Professor (History).