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2007 DIGILAW 1427 (PNJ)

Shubh Kiran Sharma v. State Of Haryana

2007-08-01

ASHUTOSH MOHUNTA

body2007
Judgment Ashutosh Mohunta, J. 1. The petitioner has prayed for quashing the selection/appointment of respondent No. 3 for the post of Scientist Grade-I in the Department of Environment, Haryana. 2. Brief facts of the case are that a vacancy arose in the Department of Environment and it was decided to fill up the same from amongst the eligible candidates. Three persons i.e., the petitioner, respondent No. 3 and one Kusum Kumar Arora were considered eligible for the post of Scientist Grade-I. The respondents decided to hold the interview as well as to consider their academic and service record for the said post. Kusum Kumar Arora did not appear in the interview and hence for one post of Scientist Grade-I only two candidates were left i.e., the petitioner and respondent No. 3. The Selection Committee comprising of Director Environment, Deputy Secretary Environment and two Scientists i.e., Scientist Grade-I and Scientist Grade-II constituted the Selection Committee. The Selection Committee awarded 64 marks each to the petitioner as well as to respondent No. 3. As the marks of the petitioner and respondent No. 3 were absolutely the same, therefore, the Selection Committee recommended the name of the petitioner on the basis of age. The date of birth of the petitioner is 13.1.1955, whereas the date of birth of respondent No. 3 is 28.10.1958. However, orders were issued for appointing respondent No. 3 as Scientist Grade-I on the ground that he had been working as Senior Scientific Assistant in the Department of Environment whereas, the petitioner was working in the office of Archaeology Department as Assistant Scientist. 3. Learned counsel for the petitioner submits that as the petitioner and respondent No. 3 have both secured 64 marks, therefore, the name of the petitioner was rightly recommended by the Selection Committee as the petitioner was older in age. It is submitted that in a case where two candidates secure same number of marks and all other qualifications are also the same then the person who is elder in age has to be preferred over the person who is younger. Learned counsel further submits that once the Selection Committee has recommended the name of the petitioner then either the recommendations should have been accepted or rejected in toto but the respondents could not travel beyond the recommendations made. Learned counsel further submits that once the Selection Committee has recommended the name of the petitioner then either the recommendations should have been accepted or rejected in toto but the respondents could not travel beyond the recommendations made. Learned counsel for the petitioner has relied on the judgment in Vinodan T. and others v. University of Callicut reported as 2002(3) RSJ 598, wherein it has been held that:- "12. The principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post is well established by judicial precedent. Even if vacancies exist, it is open to the concerned authority to decide how many appointments should be made. However the selected candidates have a right to compel such authority (i) not to make appointments by travelling outside the list, and (ii) to make the selection for appointment strictly in the order the candidates have been placed in the list. This Court has placed two further restrictions on the exercise of power by the appointing authority, namely that the appointments to the vacancies must be made in accordance with the Rules, if any, relating to reservations and also that the appointing authority cannot scrap the panel of selected candidates during the period of its validity, except for well founded reasons." 4. Mr. Sanjiv Gupta, counsel for respondent No. 3 has controverted the arguments raised by the counsel for the petitioner. Learned counsel submits that as per Service Rules the petitioner was not even eligible to apply for the post of Scientist Grade-I. He further submits that as respondent No. 3 had been working in the Department of Environment whereas, the petitioner had been working in the Department of Archaeology, therefore, respondent No. 3 has rightly been preferred over and above the petitioner. Learned counsel further submits that the pay scale of respondent No. 3 working in the Environment Department was higher than the petitioner. Learned counsel further submits that one post is still lying vacant in the Department and therefore, another post be created so that both the petitioner as well as respondent No.3 can be adjusted. Learned counsel has relied on the judgement in Director, A.I.I.M.S. etc. v. Dr. Nikhil Tandon and others, reported as 96(2) RSJ 81. Learned counsel further submits that one post is still lying vacant in the Department and therefore, another post be created so that both the petitioner as well as respondent No.3 can be adjusted. Learned counsel has relied on the judgement in Director, A.I.I.M.S. etc. v. Dr. Nikhil Tandon and others, reported as 96(2) RSJ 81. In that case a panel of two candidates were prepared as both the candidates were of high merit and the Selection Committee recommended the names of both the candidates and suggested creation of another post. The Institute did not agree to this. The Honble Supreme Court directed that it would be in the fitness of things if the Institute could create another post to accommodate both the persons whose names were recommended. 5. Mr. Harish Rathee, Sr. DAG, Haryana has supported the case of respondent No. 3 on the ground that respondent No. 3 was eligible and was appointed because he was working in the Department of Environment. Learned counsel further submits that the dispute in the present case relates to filling up of one post of Scientist Grade-I hence there is no question of creating another post so that both the petitioner as well as respondent No. 3 can be accommodated. He further submits that as only one post was advertised, therefore, the State cannot go beyond the advertisement. Learned counsel, however, admits that one post of Scientist Grade-I is vacant in the Department of Environment. 6. I have heard learned counsel for the parties. It is clear that name of the petitioner was recommended by the Selection Committee on account of the fact that she was older in age than respondent No. 3. A perusal of the official record shows that although the Selection Committee had not decided to give preference to age but nevertheless as the petitioner and respondent No. 3 had both secured 64 marks, therefore, preference has to be given to the person who is elder in age. 7. A perusal of the official record shows that although the Selection Committee had not decided to give preference to age but nevertheless as the petitioner and respondent No. 3 had both secured 64 marks, therefore, preference has to be given to the person who is elder in age. 7. In the present case as the petitioner was born on 13.1.1955, whereas respondent No. 3 was born on 28.10.1958, therefore, it is the petitioner who should have been given the appointment of Scientist Grade-I. In view of the above, I allow the writ petition and quash the selection of respondent No. 3 to the post of Scientist Grade-I and hold the petitioner entitled to be appointed as Scientist Grade-I in the Department of Environment, Haryana. There shall be no orders as to costs.