[2010] 5 S.C.R. 116

RAVINDER KUMAR

STATE OF HARYANA AND ORS.

(Civil Appeal No. 3127 of 2008)

APRIL 22, 2010

[D.K. JAIN AND T.S. THAKUR, JJ.]

Service Law - Selection - Haryana Police - Post of Constable - Vacancies in general category as well as • C reserved categories - Reserved category for exservicemen(ESM) comprising of three distinct sub categories, ESM (General Category), ESM BC(A) and ESM BC(B) category - Appointment of appellant in ESM BC{B) category - Quashed by Court - Termination - Challenge to - o Respondents directed by Court to consider the case of appellant in general category - Case of appellant considered but he was declined appointment in that category - Writ petition filed by appellant - Dismissed by High Court - On appeal, held: The two candidates selected in ESM BC(B) E category ahead of the appellant ought to have been selected against vacancies in ESM (General) category as per their merit since they scored more marks than the last two candidates in the ESM (general) category - The Select List thus was required to be recast and candidates suitably shifted F from reserved category to general category in which event appointments could be offered to other candidates in ESM BC(B} category such as appellant depending on their merit

- However such exercise at this distant point of time could unsettle the settled position - In interest of justice, direction G given for fresh appointment of appellant against any vacancy

, in ESM (General Category) or ESM BC (BJ category, and if no vacancy available in the said two categories, for fresh appointment against any vacancy in General category - Such appointment, however, would not entitle appellant to any back

H 116

RAVINDER KUMAR v. STATE OF HARYANA AND 117

ORS.

wages, seniority or any other benefit based on his earlier A appointment.

Selection process was initiated to fill up available posts of Constables in the Haryana Police. Apart from vacancies in the General category there were vacancies B in the reserved categories also, including the reserved category for ex-servicemen, which in turn was divided into three distinct sub categories, namely, ESM (General Category), ESM BC(A) and ESM BC(B) category.

Appellant, a candidate in the reserved category of C ESM/BC(B), was eventually placed at Sr.No.3 in the ESM/ BC(B) category. An appointment order was issued in his favour pursuant whereto he joined the Police Department.

An unsuccessful candidate in ESM/BC(B) category o challenged the appointment of appellant before the High Court contending that he had a preferential right to appointment in the ESM/BC(B) category on account of his being an ex-serviceman in comparison to appellant, who being a dependent of an ex-serviceman, stood a chance only if no ex-serviceman was available for appointment.

The High Court quashed the appointment of the appellant with a direction that the claim of ex-servicemen candidates would have priority over those who are dependents of such ex-servicemen. Consequent upon

F the said direction, the services of the appellant were terminated.

Appellant challenged the termination order before the High Court which directed the respondents to consider the case of the appellant in the general category. In G compliance with the above direction the Superintendent of Police considered the case of the appellant but declined him appointment in that category.

The appellant filed writ petition before the High Court H

A praying for issue of writ of certiorari quashing the order passed by the Superintendent of Police as also a mandamus directing the respondents to supply a complete list of selected candidates in respect of all the categories. The High court dismissed the petition holding B that since the marks scored by the appellant were less

than the marks awarded to the last candidate in the general category, he could make no grievance against his non-selection in that category.

Before this Court, the appellant contended that the C denial of appointment to him was discriminatory, wholly

unjustified and arbitrary. He contended that the High.

Court had failed to notice certain important aspects that render the order unsustainable, in particular the fact that two of the candidates selected in the reserved category D having scored marks that were higher than those scored by the last candidate selected in the general category, the said candidates ought to have been selected against vacancies in the general merit category, and that if that were done, the appellant could be appointed against one E of the said vacancies.

Partly allowing the appeal, the Court

HELD: 1.1. It is evident from the records that in ex- F servicemen (general category) the last two candidates had scored only 25 marks each and the two candidates selected in Ex-servicemen BC(B) category ahead of the appellant, scored more marks than them, and thus could and indeed ought to have been selected against the vacancies in Ex-servicemen (General) category as per G their merit. This in other words would require the Select

List to be recast and candidates suitably shifted from the reserved category to the general category in which event appointments can be offered to other candidates in the Ex-servicemen BC(B) category depending on their merit.

H Such an exercise long after the selection process was

RAVINDER KUMAR v. STATE OF HARYANA AND 119

ORS.

completed may unsettle the settled position and lead to A removal of candidates who stand already selected and who have been serving for a long time after undergoing the pMscribed training. This may also mean that candidates who have accepted the result of the selection and may even have become over-age may have to be B brought in. There is no compelling reason for this Court' to adopt that course at this distant point of time especially when the same would upset what stands settled for a long time. [Para 9] (125-C-G]

1.2. Interest of justice would be sufficiently served, if C the appellant is appointed as a Constable in the Haryana Armed Police against any vacancy in the Ex-Serviceme'n (General Category) or ESM/BC (B) category. If no vacancy in the said two categories is available the appellant shall be appointed against any vacancy in the General D category. The appointment shall for all intents and purpose be a fresh appointment which would not entitle the appellant to any back wages, seniority or any other benefit based on his earlier appointment. (Paras 9, 1 O]

(125-G-H; 126-A-C] E

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3127 of 2008.

From the Judgment & Order dated 23.1.2007 of the High Court of Punjab & Haryana at Chandigarh in CWP No. 1061 of 2007.

 P.S. Patwalia, Aman Preet Singh Rahi, Ajay Singh, Ashok K. Mahajan for the Appellant.

Manjit Singh, ASG, Kamal Mohan Gupta for the Respondents.

The Jucjgment of the Court was delivered by

T.S. THAKUR, J. 1. rhis appeal arises out of an order H

A passed by the High Court of Punjab & Haryana, whereby Writ Petition No.1061 of 2007 filed by the appellant has been dismissed and the appellant's claim for appointment as a Constable in the Haryana Police Department turned down. The High Court has taken the view that since the marks scored by B the appellant were less than the marks awarded to the last

candidate in the general category, he could make no grievance against his non-selection in that category. The appellant assails that view primarily on the ground that the High Court has failed to notice certain important aspects that render the order c unsustainable, in particular the fact that two of the candidates

selected in the reserved category having scored marks that were higher than those scored by the last candidate selected

in the general category, the said candidates ought to have been selected against vacancies in the general merit category. If that D were done, the appellant could be appointed against one of the said vacancies. The factual matrix giving rise to the controversy need be summarized at this stage:

2. A selection process to fill up 100 available posts of Constables in Haryana Police in the District of Sirsa, State of E Haryana was undertaken in which the appellant was also a candidate for appointment against one of the vacancies in the reserved category of ESM/BC(B) for ex-servicemen and their dependents. The appellant was put through physical efficiency and other tests and eventually placed at Sr. No.3 in the ESM/ F BC(B) category. An appointment order was also issued in his favour pursuant whereto he joined the Police Department on 17th August 2001 and was allotted Constabulary No.2/873 in the 2nd Battalion of the Haryana Armed Force.

3. One, Naresh Kumar who had also applied for selection G in ESM/BC(B) category and whose name did not figure in the

select list filed Civil Writ Petition No.13130 of 2001 in the High Court of Punjab & Haryana challenging the appointment of the appellant mainly on the ground that the said petitioner had a preferential right to an appointment in the ESM/BC (B) category H on account of his being an ex-serviceman in comparison to the

appellant who being a dependent of an ex-serviceman would A stand a chance only if no ex-serviceman was available for appointment. The appellant had in the meantime completed the Basic Training Course of nine months duration, passed out in May 2002 and started discharging the duties attached to the post to which he was appointed. The High Court, all the same, allowed the writ petition filed by Naresh Kumar and by its order dated 10th July 2002 quashed the appointment of the appellant with a direction that the claim of ex-servicemen candidates would have priority over those who are dependents of such exservicemen. Consequent upon the said direction, the services c of the appellant were terminated in terms of an order dated 31st December 2002, the correctness whereof was questioned by the appellant in CWP No.16287 of 2003. The said petition was eventually dismissed as withdrawn with liberty to the appellant •' to file a review petition against the order of the High Court in D CWP No.13130 of 2001. A review petition was accordingly filed by the appellant which was disposed of by the High Court by an order dated 10th March 2006 directing the respondents to re-consider the case of the appellant in the general category.

Order dated 10th July 2002 passed by the High Court in CWP No.13130 of 2001 was to that extent modified.

4. It was in compliance with the above direction that the Superintendent of Police, Sirsa passed an order on 26th May 2006 declining an appointment to the appellant as a Constable.

The order stated that out of eight candidates in BC(B) category F the last candidate selected for appointment had scored 27 marks as against 26 marks awarded to the appellant. The order further stated that out of 45 candidates selected in the General category the last candidate selected for appointment had scored 27 marks. Since the appellant fell below the last G candidate appointed in the General category he was disentitled to the appointment prayed for by him.

5. The appellant's case is that the order passed by the Superintendent of Police did not disclose the marks obtained H

A by BC(B) category candidates selected against the eight posts reserved in that category. An application seeking the requisite information and copies of the select list was accordingly filed under the Right to Information Act, but was declined by the State Information Commission on the ground that the Haryana Armed B Police was exempt from the purview of the RTI Act. It was in tha1 backdrop that the appellant filed CWP No,1061/2007 before the High Court praying not only for the issue of a writ of certiorari quashing the order dated 26th May 2006 passed by the Superintendent of Police but also a mandamus directing c the respondents to supply a complete list of selected candidates in respect of all the categories. By its order dated 23rd January 2007 impugned in this appeal, the High court has dismis; sed the said petition primarily on the ground that the last candidate selected both in the BC(B) category and in the General category

0 having scored (27 marks each as against 26 marks awarded to the appellant, he was not qualified for appointment in eithr of the said two categories. The appellant assails the correctness of the said order, as already noticed above.

6. Mr. P.S. Patwalia, learned senior counsel appearing for E the appellant strenuously argued that the denial of appointment to the appellant is discriminatory, wholly unjustified and arbitrary.

He urged that according to the select list enclosed with the affidavit filed on behalf of respondent No.1 - the State, 45 candidates were selected in the General Category, 14 in BC(A) F category and eight in BC(B) category, apart from candidates selected in SC 'A' and SC 'B' categories. Insofar as exservicemen category was concerned, the Select List reveals that there were eight vacancies available for ex-servicemen in the General category, while two vacancies were earmarked for G ex-servicemen BC(A) category and three vacancies for exservicemen BC(B) category. It was argued by Mr. Patwalia and in our opinion rightly so that if an ex-serviceman candidate scored high enough marks entitling him to be selected in the ex-serviceman (General Category) such candidates ought to be selected in the said category instead of selecting them in the

Ex-servicemen BC(A) or BC(B) categories. Mr. Patwalia A argued that in BC(A) category, two candidates, namely, Rajbir Singh and Ranjeet Singh had been selected who had scored 29 and 28 marks. respectively. Similarly in BC(B) category, Sube Singh, Veer Bhan and the appe.flant Ravinder Kumar had been initially selected each one of whom had scored 26 marks.

With the High Court directing appointment of ex-servicemen before any dependent of any ex-serviceman could be appointed the appellant had to vacate to make room for Naresh Kumar, who was an ex-serviceman in BC(B) category. Even

so two vacancies out of eight reserved for in the Ex-Servicemen c (General category) had gone to Subhash Chander and Taket Singh both of them had scored 25 marks each. This implied that if candidates selected in Ex-Servicemen BC(B) categories were shifted to the Ex-Servicemen (General category) both Sube Singh and Veer Bhan would have moved to the General D category, making room for the appellant to take an appointment in the BC(B) category. Inasmuch as the respondents had ignored.the principle underlying the selection of candidates in reserved categories even when such candidates had scored better marks than the candidates selected in the open category, E the respondents had committed a mistake which deserved to be corrected. The order passed by the Superintendent of Police did not, according to the learned counsel, take note of these aspects and adopted an approach which was legally unsound. It was also argued by Mr. Patwalia that the appellant had undergone training and even started serving the Police Department before he was asked to vacate the post which was then allotted to Naresh Kumar. This, according to the learned counsel, had happened despite the fact that the appellant was nowhere at fault. He had on the contrary changed his position

to his detriment by undergoing an arduous training apart from G losing opportunities to seek employment elsewhere.

7. On behalf of the respondents, it was argued by Mr.

Manjit Singh, learned Additional Advocate General that the appointment of the appellant could be justified only if the H

A appellant figured higher in the merit list than the last candidate in the General category. Inasmuch as the appellant failed to satisfy that requirement both in the General category as also in general and reserved categories for ex-servicemen he could make no grievance against refusal of an appointment to him.

8. VVhen this appeal came up before this Court, Mr.

Patwalia nade a statement on instructions that if the appellant was offered employment as a Constable in the Haryana Police,

District Sirsa even at this stage he will not claim back wages or seniority on the basis of his selection and appointment.

C Learned counsel for the State was accordingly directed to take instructions whether the appellant could be accommodated against a vacant post in the said District. Mr. Manjit Singh, is however unable to make any statement pursuant to the above direction as according to him the respondents had not suitably D responded to his queries nor given to him any instructions in the matter one way or the other. He therefore sought further time to do the needful. We regret our inability to grant any further opportunity having regard to the fact that the matter has remained pending in this Court and the Court below for long E and two opportunities for the purpose aforementioned have

already been granted to the respondents. The controversy as noticed above primarily revolves around the method adopted by the respondents in drawing up the Select List of candidates.

Apart from the vacancies in the General category there were, F as noticed above, vacancies for reserved categories also. The reserved category for ex-servicemen was divided into three distinct sub categories, namely, Ex-servicemen (General, Category), Ex-servicemen BC(A) and Ex-servicemen BC(B) category. The names of the candidates and the marks awarded G to them in each one of these categories were as under:-

"EX-SERVICEMEN

GENERAL CATEGORY 1. 6003 Durga Dass 2. 6005 Balbir Singh . 3. 6037 Ved Parkash

27 27 26

4. 6007 Ram Sarup 26 A 5. 6015 Rajender Parshad 26 6. 6010 Gurpal Singh 26 7. 6023 Subhash Chander 25 8. 6027 Taket Singh 25 B

B.C. 'A' 1. 6028 Rajbir Singh 29 2. 6016 Ranjeet Singh 28

B.C. 'B' c 1. 6001 Sube Singh 26 2. 6035 Veer Bhan 26 3. 6031 Ravinder 26"

9. It is evident from the above that in ex-servicemen (general category) the last two candidates namely: Subhash D Chander and Taket Singh had scored only 25 marks each.

Sube Singh and Veer Bhan selected in Ex-servicemen BC(B) category had however scored more marks than Subhash Chander ancl Taket Singh. Sube Singh and Veer Bhan could and indeed ought to have been selected against the vacancies E in Ex-servicemen (General) category as per their merit. This in other words would require the Select List to be recast and candidates suitably shifted from the reserved category to the general category in which event appointments can be offered to other candidates in the Ex-servicemen BC(B) category F depending on their merit. Such an exercise long after the selection process was completed may unsettle the settled position and lead to removal of candidates who stand already selected and who have been serving for a long time after undergoing the prescribed training. This may also mean that G candidates who have accepted the result of the selectipn and may even have become over-age may have to be brought in.

We do not see any compelling reason for us to adopt that course at this distant point of time especially when the same would upset what stands settled for a long time. Interest of justice would in our opinion be sufficiently served if we direct H

A the appointment of the appellant against an Ex-servicemen BC(B) vacancy and if no such vacancy is available against ari ex-servicemen (General Category) vacancy. In the unlikely event of there being no vacancy in either one of these categories the appellant could be appointed against any other vacancy in the B General category. Any such appointment would, however, in keeping with the statement by the appellant be effective from the date the same is made and shall not entitle the appellant to claim any back wages, seniority or other benefits. The appointment shall for all purposes be treated as a first c appointment subject to the condition that the competent authority shall be free to direct that the appellant shall undergo the training afresh or take a refresher course of such training if deemed fit.

10. In the result, we allow this appeal but only in part and D to the extent that the appellant shall be appointed as a Constable in the Haryana Armed Police, Sirsa District against any vacancy in the Ex-Servicemen (General Category) or ESM/ BC (B) category. If no vacancy in the said two categories is available the appellant shall be appointed against any vacancy E in the General category. The appointment shall for all intents and purpose be a fresh appointment which would not entitle the appellant to any back wages, seniority or any other benefit based on his earlier appointment. The order passed by the High Court shall to the above extent, stand modified. No costs.

B.B.B.

Appeal partly allowed.