Ravinder Kumar vs State Of Haryana & Ors

candidates would have priority over those who are

dependents of such ex-servicemen. Consequent upon the

said direction, the services 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dismissed as withdrawn with liberty to the appellant to file a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 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. 5

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 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 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

by BC(B) category candidates selected against the eight

posts reserved in that category. An application seeking the 6

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 Police was exempt from the

purview of the RTI Act. It was in that 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 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 dismissed the

said petition primarily on the ground that the last candidate

selected both in the BC(B) category and in the General

category having scored 27 marks each as against 26 marks

awarded to the appellant, he was not qualified for

appointment in either of the said two categories. The

appellant assails the correctness of the said order, as

already noticed above.

7

6. Mr. P.S. Patwalia, learned senior counsel appearing for

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) category and eight in

BC(B) category, apart from candidates selected in SC `A' and

SC `B' categories. Insofar as ex-servicemen 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 ex-

servicemen BC(A) category and three vacancies for ex-

servicemen 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) 8

categories. Mr. Patwalia 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

appellant 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

(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 category, making room for the

appellant to take an appointment in the BC(B) category.

Inasmuch as the respondents had ignored the principle 9

underlying the selection of candidates in reserved categories

even when such candidates had scored better marks than

the candidates selected in the open category, 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 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 10

appointment of the appellant could be justified only if the

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. When this appeal came up before this Court, Mr.

Patwalia made 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. 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 11

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 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, 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 to

them in each one of these categories were as under:- 12

"EX-SERVICEMEN GENERAL CATEGORY

1. 6003 Durga Dass 27 2. 6005 Balbir Singh 27 3. 6037 Ved Parkash 26 4. 6007 Ram Sarup 26

5. 6015 Rajender Parshad 26 6. 6010 Gurpal Singh 26

7. 6023 Subhash Chander 25 8. 6027 Taket Singh 25

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

B.C. `B' 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 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 and Taket Singh. Sube Singh and Veer

Bhan could and indeed ought to have been selected against 13

the vacancies 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 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 candidates who have

accepted the result of the selection 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 the

appointment of the appellant against an Ex-servicemen

BC(B) vacancy and if no such vacancy is available against an 14

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 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 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

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 15

against any vacancy 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.

......................................J. (D.K. JAIN)

......................................J. (T.S. THAKUR) New Delhi April 22, 2010