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2014 DIGILAW 2014 (HP)

Suresh Kumar v. State Of H. P.

2014-12-24

PIAR SINGH RANA

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ORDER : Piar Singh Rana, J. Present civil writ petition is filed under Article 226 of the Constitution of India pleaded therein that in the year 1994 petitioner passed his matriculation examination from H.P. Board of School Education Dharamshala (H.P.) and in the year 1996 petitioner passed his 10+2 from H.P. Board of School Education Dharamshala (H.P.). It is pleaded that in the year 2001 petitioner has passed Bachelor of Arts from H.P. University and in the year 2003 petitioner has passed one year degree course in Bachelor of Physical Education diploma from Amaravati University. It is further pleaded that on dated 3.6.2011 respondent No. 1 State of H.P. through its Secretary (Education) to the Government of H.P. directed H.P. Subordinate Services Selection Board Hamirpur (H.P.) to sponsor the candidates after conducting their examination for the post of Physical Education Teacher. It is pleaded that thereafter respondent No. 3 H.P. Subordinate Service Selection Board Hamirpur through its Secretary issued the advertisement for the post of Physical Education Teacher on dated 3.6.2011 and further pleaded that thereafter petitioner applied within time for the post of Physical Education Teacher under SC-IRDP category for which two posts were reserved. It is pleaded that roll number was issued to the petitioner and petitioner appeared in the written test and petitioner successfully qualified the written test. It is pleaded that thereafter on dated 18.05.2012 the petitioner was issued the interview letter after qualifying the written test for the post of Physical Education teacher and interview was conducted on dated 19.6.2012. It is pleaded that thereafter petitioner appeared in the interview which held on dated 19.6.2012 and final result was declared on dated 6.7.2012. It is pleaded that name of petitioner was not recommended for the post of Physical Education Teacher against SC-IRDP category. It is also pleaded that petitioner received the information under RTI. It is pleaded that as per law laid down by the Supreme Court if a reserved candidate secures more marks than the general category candidate in the merit list then reserved candidate should be placed in general category instead of reserved category. It is pleaded that respondent Nos. 1 to 3 did not adopt the procedure laid down by Apex Court of India in case reported in Ravinder Kumar Vs. State of Haryana and Others, (2010) 5 SCC 136 . It is pleaded that respondent Nos. 1 to 3 did not adopt the procedure laid down by Apex Court of India in case reported in Ravinder Kumar Vs. State of Haryana and Others, (2010) 5 SCC 136 . It is pleaded that recommendation submitted by respondent No. 3 dated 6.7.2012 be quashed and further pleaded that appointment letter issued to respondent Nos. 4 to 6 be also quashed and it is also pleaded that respondent No. 3 be directed to recommend the name of petitioner for the post of Physical Education Teacher and thereafter respondents Nos. 1 and 2 be directed to offer the appointment to the petitioner as Physical Education teacher w.e.f. 6.7.2012. Prayer for acceptance of petition sought. 2. Per contra reply filed on behalf of respondents Nos. 1 and 2 pleaded therein that respondent Nos. 1 and 2 offered the appointment to the selected candidates whose names were selected by H.P. Subordinate Services Selection Board for appointment. It is further pleaded that process of selection for appointment to the post of Physical Education Teacher is concerned with respondent No. 3 and replying respondents Nos. 1 and 2 have no role in the selection process. It is pleaded that petitioner has wrongly impleaded the respondent No. 1 and 2 as co-respondents and prayer for dismissal of writ petition sought. 3. Per contra separate reply filed on behalf of respondent No. 3 pleaded therein that present petition is not maintainable. It is pleaded that respondent No. 3 advertised 50 posts of Physical Education Teacher vide advertisement No. 19/2011 dated 3.6.2011 which were meant for different categories. It is pleaded that petitioner applied under SC-IRDP category and appeared in the written screening test and qualified the same and thereafter he was called for his personal interview conducted on dated 19.6.2012. It is pleaded that there were only eight posts of SC (UR) and two posts of SC (IRDP). It is pleaded that final result of posts of Physical Education Teacher on the basis of merit list was declared on dated 6.7.2012. It is further pleaded that petitioner did not place in the merit list on the basis of overall performance and hence he was not declared successful. It is pleaded that petitioner applied for the category of SC (IRDP). It is further pleaded that petitioner did not place in the merit list on the basis of overall performance and hence he was not declared successful. It is pleaded that petitioner applied for the category of SC (IRDP). It is further pleaded that petitioner cannot be appointed in the reserved category of SC (UR) in view of application filed by petitioner for the post of Physical Education Teacher in the reserved category of SC (IRDP). Prayer for dismissal of civil writ petition sought. 4. Court heard learned Advocate appearing on behalf of the petitioner and learned Advocates appearing on behalf of the respondents and learned Additional Advocate General and Court also perused the entire record carefully. 5. Following points arise for determination in this civil writ petition:- 1. Whether petitioner belonging to reserved SC (IRDP) category is legally entitled for the appointment in public post of Physical Education Teacher reserved for SC (UR) and whether encroachment in reserved public post SC(UR) inter-se Schedule Caste category SC (IRDP) is permissible as alleged? 2. Final Order. Findings on point No. 1 6. Submission of learned Advocate appearing on behalf of the petitioner that petitioner is legally entitled for appointment in the post of Physical Education teacher reserved for reserved category of SC (UR) on the basis of ruling reported in Ravinder Kumar Vs. State of Haryana and Others, (2010) 5 SCC 136 is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that H.P. Subordinate Services Selection Board Hamirpur vide Annexure P-5 advertised the posts of Physical Education Teachers qua different categories i.e. (1) General (UR) (2) General (IRDP) (3) OBC (UR) (4) OBC (IRDP) (5) SC (UR) (6) SC (IRDP) (7) ST (UR) (8) ST (IRDP). It is proved on record that thereafter candidates applied for the posts as per advertisement qua different categories. It is also proved on record that thereafter merit list was prepared and recommendations were sent by H.P. Subordinate Services Selection Board for appointment of Physical Education Teachers. It is also proved on record that merit-wise result of SC (IRDP) for the post of Physical Education Teacher (Post Code-295) was prepared which is quoted as follow:- 7. It is also proved on record that merit-wise result of SC (UR) Category for the post of Physical Education Teacher (Post Code-295) was prepared which is quoted as follow:- 8. It is also proved on record that merit-wise result of SC (IRDP) for the post of Physical Education Teacher (Post Code-295) was prepared which is quoted as follow:- 7. It is also proved on record that merit-wise result of SC (UR) Category for the post of Physical Education Teacher (Post Code-295) was prepared which is quoted as follow:- 8. It is also proved on record that cut off marks for the post of Physical Education Teacher qua categories SC (UR) and SC (IRDP) were as follow:- It is also proved on record that petitioner had applied for the post of Physical Education teacher under SC (IRDP) category and as per advertisement there were only two posts of SC (IRDP) and there were eight posts of SC(UR). Hon'ble Apex Court of India in ruling reported in Ravinder Kumar Vs. State of Haryana and Others, (2010) 5 SCC 136 did not mention that post reserved for SC (UR) category could be given to SC (IRDP) candidate. The law cited supra relates to post which was reserved for general category only and did not relate to post reserved for SC (UR) and SC (IRDP). Hence it is held that ruling cited supra did not cover the case of SC (UR) and SC (IRDP) category. Hence ruling given by Hon'ble Apex Court of India cited supra is distinguishable and is not applicable in the facts of present case i.e. inter-se SC (UR) and SC (IRDP) categories. In present case petitioner applied for the appointment under SC (IRDP). It is well settled law that person cannot be allow to approbate and reprobate at the same time. It is also proved on record that cut off marks for reserved SC (UR) category were 145 and cut off marks for reserved SC (IRDP) category were 149. It is also proved on record that petitioner had scored 146 marks in SC (IRDP) category and he does not fall in the merit list of SC (IRDP) category. Court is of the opinion that if SC (IRDP) candidate is allowed to encroach on the post of SC (UR) candidate then candidate falling under SC (UR) category would be adversely effected. Court is of the opinion that encroachment of SC (IRDP) candidate upon the post of SC (UR) candidate would tantamount to defeat the provision of reservation given to the weaker class of society. Court is of the opinion that encroachment of SC (IRDP) candidate upon the post of SC (UR) candidate would tantamount to defeat the provision of reservation given to the weaker class of society. Court is of the opinion that State is under legal obligation to give protection to weaker class of society. In view of the fact that petitioner has himself applied for the post under SC (IRDP) category it is not expedient in the ends of justice to appoint the petitioner in the post of Physical Education Teacher reserved for SC (UR) category. It is held that encroachment of SC (IRDP) candidates in the post reserved for another SC (UR) candidate is not permissible under any statutory rules. It is held that encroachment inter-se Scheduled Caste candidate in the public appointments is not permissible under any statutory rules. Point No. 1 is answered in negative against the petitioner. Final Order 9. In view of findings in point No. 1 civil writ petition filed under Article 226 of Constitution of India is dismissed. Petition stands disposed of. No order as to costs. Pending miscellaneous application(s) if any also stands disposed of.