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2006 DIGILAW 1577 (PNJ)

Subhash Chander v. State Of Haryana

2006-04-20

M.M.KUMAR, M.M.S.BEDI

body2006
Judgment M. M. S. BEDI, J. 1. This is the second bout of litigation by the petitioner , an exservice man seeking by this writ petition under Article 226 of the constitution of India, a direction to the respondents, to grant him the deemed date of appointment as a J. B. T. Teacher, with effect from 1.9.1999 instead of 23.8.2002 i. e. the date when his junior in the merit list,namely, Ranbir has been appointed as a J. B. T. Teacher in District gurgaon as per order dated 1.3.1999,annexure P-4. 2. The petitioner along with another ex-service man Ram Mehar singh had applied for the post of a J. B. T. Teacher under the category of ex-service man in response to advertisement dated 22.12.1997, Annexure p-1 but they along with other ex-service men having the qualification of b. A. B. Ed. were not called for interview by the Staff Selection Commission, haryana on the pretext that sufficient number of dependents of ex-service men having the qualification of J. B. T. were available. The result of the selection was declared on 9.12.1998. Out 104 posts meant for ex-service men (General) category, only 36 candidates who were ex-service men were selected and the remaining 68 posts of J. B. T. Teachers, reserved for ex-service men (General) were filled up by giving appointment to the candidates belonging to the next preferred category i. e. dependents of exservice men. They were given appointments in different districts of State of Haryana in February/march 1999. 3. The petitioner along with Ram Mehar Singh challenged the selection of dependents of ex-service men against 68 posts by filing c. W. P. No.9754 of 1999 seeking preference in their selection/appointment to the posts of J. B. T. Teachers, as 68 posts reserved for ex-service men had been arbitrarily and illegally filled up by giving appointments to the dependents of ex-service men. The said writ petition was allowed along with another CWP No.1824 of 1999 on 7.5.2001 (Annexure P-2) and a direction was issued that the claim of the petitioners be considered for selection/appointment to the posts of J. B. T. Teachers in preference to the dependents of ex-service men. The judgment of this Court (Annexure P-2)is stated to have been upheld by the HON BLE Supreme Court in Special leave Petition No.1581 of 2002 on 18.2.2002. The judgment of this Court (Annexure P-2)is stated to have been upheld by the HON BLE Supreme Court in Special leave Petition No.1581 of 2002 on 18.2.2002. On the basis of the directions of the High Court in C. W. P. No.9754 of 1999, the petitioner along with three other ex-service men was interviewed by the Staff selection Commission, Haryana and their names were recommended to the office of Director Primary Education, Haryana for giving appointment on the post of J. B. T. Teacher in the category reserved for ex-service men. 4. The petitioner had been assigned merit No.2566-B whereas Ram Mehar singh had been assigned merit No.2527-A. The name of the petitioner was sent by the Director Primary Education, Haryana, respondent No.2 to the office of District Primary Education Officer, Gurgaon, respondent No.3 for giving him appointment on the post of J. B. T. Teacher. Vide order dated 16.8.2002 the petitioner was appointed to the post of J. B. T. Teacher and he joined at Government Primary School, Garhi Nathe Kah District gurgaon on 23.8.2002. 5. It is averred in the petition that 68 dependents of ex-service men having the qualification of J. B. T. were appointed in the month of February/ march 1999 against their right of selection in preference to the candidates belonging to ex-service men category, to which the petitioner belonged. Had the respondents acted in accordance with the Government instructions/ advertisement, the petitioner would have been selected as a j. B. T. Teacher in normal course in the month of February/march 1999 instead of 16.8.2002 and in that situation he would have got appointment as a J. B. T. Teacher in month of March,1999 when other similarly situated teachers were given appointment as such. The grievance of the petitioner is that the candidates, whose names were recommended below him were also appointed by respondent No.3 in the month of February/march 1999. 6. Instance of Ranbir recommended at merit No.2568 having been appointed as a J. B. T. Teacher vide order dated 1.3.1999 has been cited whereas the petitioner has been recommended against merit No.2566-B. He has been given appointment vide order dated 16.8.2002 despite the fact that he is much senior to the above mentioned Ranbir in the merit list. 6. Instance of Ranbir recommended at merit No.2568 having been appointed as a J. B. T. Teacher vide order dated 1.3.1999 has been cited whereas the petitioner has been recommended against merit No.2566-B. He has been given appointment vide order dated 16.8.2002 despite the fact that he is much senior to the above mentioned Ranbir in the merit list. Another grievance of the petitioner is that the benefit of deemed date of appointment has been given to Ram Mehar Singh vide order dated 1.4.2004 (Annexure P-5) in pursuance to the order passed by the High court in CWP No.11542 of 2003 in which the High court had given a direction to the respondents to pass a speaking order upon the legal notice served by Ram Mehar Singh through his counsel seeking deemed date of appointment. 7. Upon notice of motion having been issued to the respondents, they have filed a written statement wherein the fact of decision of CWP no.9754 of 1999 having been decided in favour of the petitioner and Ram mehar Singh has not been denied. The only defence taken in the written statement is that the High Court while disposing of the earlier writ petition of the petitioner i. e. CWP No.7754 of 1999 had not given any specific direction that the petitioner or the other similar circumstanced persons would be appointed from the back date on which the other J. B. T. selected teachers had been appointed. It has not been denied that Ram Mehar singh, who was a co-petitioner with the petitioner in the earlier writ petition has been granted the deemed date of appointment with effect from 1.3.1999, Annexure P-4 in pursuant to the consideration of his claim under the directions of this Court in CWP No.1154 of 2003 requiring the respondents to pass a speaking order on the legal notice sent by him. 8. We have heard learned counsel for the parties and gone through the documents and are of the considered opinion that this writ petition deserves to be partly allowed. 8. We have heard learned counsel for the parties and gone through the documents and are of the considered opinion that this writ petition deserves to be partly allowed. The petitioner is entitled to the grant of deemed date of appointment with effect from 21.3.1999 instead of 23.8.2002 for the purposes of refixation of his pay except arrears of pay for the reasons that the petitioner had acquired a right of appointment pursuant to the advertisement dated 22.12.1997,annexure P-1 and in view of the judgment dated May 7,2001,annexure P-2 passed in CWP No.9754 of 1999 in Subhash Chander and another vs The State of Haryana and others. Furthermore, no specific direction was required to be given that the petitioner deserved to be recruited with effect from the date the private respondents had been appointed because it was implied from the operative part of the judgment (Annexure P-2) that the petitioner deserves to be considered against the posts that have been made available to the private respondents. It was specifically directed that in case the private respondents had to be removed from service , who have not been recruited in accordance with the advertisement, the same could be done after issuing a show cause notice to them. Furthermore, on the principle of parity, the petitioner is entitled to be considered to have been appointed with effect from 1.3.1999 instead of 29.8.2002 as the said relief has been granted to Ram Mehar Singh, who was a co-petitioner with the petitioner in cwp No.9754 of 1999. The relief of notional fixation of pay from the said date of regular appointment without arrears of salary is also required to be given to the petitioner as has been given to Ram Mehar Singh as the equals cannot be treated as unequally. Denial of similar relief to the petitioner would be violative of Article 14 and 16 (1) of the Constitution. 9. For the above reasons, the writ petition is partly allowed and a direction is issued to the respondents to grant the deemed date of appointment to the petitioner as a J. B. T. teacher with effect from 1.3.1999 instead of 23.8.2002 i. e. date when his juniors had been appointed as j. B. T. Teachers. 9. For the above reasons, the writ petition is partly allowed and a direction is issued to the respondents to grant the deemed date of appointment to the petitioner as a J. B. T. teacher with effect from 1.3.1999 instead of 23.8.2002 i. e. date when his juniors had been appointed as j. B. T. Teachers. The petitioner will be entitled to the consequential benefits including fixation of seniority and pay with effect from the deemed date of appointment i. e.1.3.1999 except for the arrears of salaries for having not actually worked for the period 1.3.1999 to 23.8.2002. However, the arrears of salary on refixation shall be paid from 23.8.2002 which is less than the period of three years preceding the filing of the instant petition, which was filed on 02.1.2005.