caselaws
Supreme Court of India
Narender Singh vs The State Of Haryana on 18 January, 2022Author: M.R. Shah
Bench: M.R. Shah, Sanjiv Khanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 321 OF 2022
Narender Singh …Appellant(s)
Versus
The State of Haryana & Ors. …Respondent(s)
JUDGMENT
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the Division Bench of the High Court of Punjab &
Haryana at Chandigarh dated 28.09.2021 in LPA No.902 of 2021 by
which the High Court has dismissed the said appeal, the appellant
herein – the original writ petitioner has preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:-
2.1 That the appellant was appointed as a JBT Teacher by the
Signature Not Verified
Education Department, Haryana in the year 2000 and since then he is
Digitally signed by
Rajni Mukhi
Date: 2022.01.18
14:12:02 IST
Reason:
working as a JBT Teacher at Government Primary School, Chhapar,
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Haryana. That the Haryana Public Service Commission advertised 1647
posts of Assistant Professor (College Cadre) in the State of Haryana on
16.02.2016. Last date to submit the form online was 15.03.2016, which
was extended upto 10.05.2016. The appellant herein applied timely for
the post of Assistant Professor (History). As per the advertisement dated
16.02.2016, the candidate was required to submit a No Objection
Certificate (NOC) from its appointing authority in case he is serving in a
Government/Semi Government organization under any State
Government or Government of India, at the time of interview.
2.2 To comply with the same, the appellant applied for issuance of
NOC on 22.03.2016 through the Principal, Government Senior
Secondary School, Jhanswa, District Jhajjar to the District Elementary
Education Officer, Jhajjar, the competent authority to issue the NOC.
That the said application was received by the office of District
Elementary Education Officer, Jhajjar on 04.04.2016. The appellant
appeared for the written examination for the aforesaid post on
05.03.2017. The result of the written examination was also declared on
06.11.2017 and the appellant cleared the written examination. That after
clearing the written examination, the appellant was to submit the NOC at
the time of interview. The appellant sent a reminder to the Director,
Elementary Education for issuance of the NOC vide his letter dated
09.11.2017, which was received on 09.11.2017 but no action was taken
by the concerned branch on his reminder. Therefore, the appellant filed
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a Civil Writ Petition No.27864 of 2017 before the High Court for an
appropriate order directing the appropriate authority to issue NOC. It
was the specific case on behalf of the appellant that though he had
made an application for NOC as far as back in the month of March,
2016, the NOC has not been issued. It was also submitted that despite
the fact that he has passed the written examination and interviews are to
be held on 13.12.2017, the Department of Elementary Education is not
issuing him NOC. By order dated 07.12.2017, the High Court issued the
notice in the aforesaid writ petition and passed the interim order that the
petitioner, if he falls within the zone of consideration for being called for
an interview for the post in question, shall be provisionally interviewed,
regardless of the fact that an NOC has not been issued so far by the
Department of Elementary Education.
2.3 It appears that pursuant to the interim order dated 07.12.2017, the
appellant was interviewed provisionally and his result was kept in a
sealed cover. However, the Public Service Commission did not appoint
him in absence of any NOC issued by the Department of Elementary
Education. Result of the final selection in respect of the interviews got
conducted was declared on 15.12.2017 and the appointments were
made on 12.07.2018. In between, a Writ Petition No.27864 of 2017
came up before the High Court on 30.04.2018. Learned counsel
appearing on behalf of the Public Service Commission produced the
result of the appellant in a sealed cover, which was opened and it was
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revealed that the last candidate in the category of the appellant, i.e.,
BCA has obtained 62.64 marks whereas the writ petitioner had scored
64.89 marks, therefore, the High Court observed that the appellant –
original petitioner is qualified for selection, subject to, however, the
dispute involved in the lis. However, the High Court adjourned the
matter to 21.05.2018 and thereafter adjourned to 04.10.2018. In the
meantime, the competent authority issued NOC in favour of the
petitioner – appellant herein on 06.06.2018. The appellant also
submitted the NOC with the Haryana Public Service Commission on
08.06.2018 and requested to consider his case for appointment. The
petitioner also filed one CM No.9680 of 2018 in CWP No.27864 of 2017
on 10.07.2018 mentioning that now the NOC has been received on
06.06.2018, and has also been submitted with the Public Service
Commission on 08.06.2018, therefore, it was requested for early hearing
of the writ petition. It appears that thereafter and despite the fact that
before the actual appointments were made by the Public Service
Commission on 12.07.2018, NOC was submitted on 08.06.2018, but the
appellant was not appointed, therefore, immediately on the very next
date, i.e., 16.07.2018, the appellant herein filed a fresh Writ Petition
No.17255 of 2018 for a direction to the Public Service Commission to
appoint him on the post of Assistant Professor (History) contending inter
alia that he has already now produced the NOC and that on merits, he is
entitled to appointment as the person last selected is having lesser
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marks than him as observed in the earlier order dated 30.04.2018.
However, despite the aforesaid facts and circumstances, by judgment
and order dated 06.11.2019, the High Court dismissed both the writ
petitions, i.e., CWP No.27864 of 2017 and CWP No.17255 of 2018 by
observing that if the petitioner had applied for NOC in the year 2016, he
had ample time from the date of advertisement and date of submission
of the online form to pursue his claim for issuance of NOC with his
employer, but chose to invoke the jurisdiction of the Court only after the
declaration of the result of the written test on 09.11.2017 and thereafter
also waited till 05.12.2017 on which date he filed a writ petition for
issuance of directions to the employer to release the NOC and in the
meantime, the appointments were already made and therefore, the
petitioner is not entitled to any relief. However, it is required to be noted
that the learned Single Judge of the High Court also observed that for
the delay, the grievance, if any, of the petitioner can be against the
employer in not issuing NOC before the date fixed for interview to enable
him to comply with the conditions stipulated in the application form for
which the petitioner, if so, advised may seek appropriate remedy against
the employer in accordance with law. With above observations the High
Court dismissed the aforesaid two writ petitions. However, the High
Court also imposed a cost of Rs.50,000/- against the employer for not
issuing the NOC and the failure on the part of the employer to process
the application for issuance of NOC within a reasonable period of time.
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However, the learned Single Judge refused to pass any order of
appointment in favour of the original writ petitioner.
2.4 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned Single Judge dismissing the writ petitions, more
particularly, CWP No.17255 of 2018, the appellant preferred Letter
Patent Appeal before the High Court and by the impugned judgment and
order, the High Court has dismissed the said appeal.
2.5 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the Division Bench of the High Court in dismissing
the LPA and not interfering with the judgment and order passed by the
learned Single Judge dismissing the writ petition and refusing to grant
any relief directing the respondents to appoint the appellant – the
original writ petitioner has preferred the present appeal.
3. Learned counsel appearing for the appellant has vehemently
submitted that as such there was no delay and/or any fault on the part of
the appellant. It is submitted that the appellant applied for NOC well
within time and before the last date of the submission of the online
application form. It is submitted that even thereafter a reminder was
sent, but despite the reminder the NOC was not issued and the selection
process was proceeding further by the Public Service Commission and,
therefore, the appellant was constrained to file the writ petition before the
High Court directing the appropriate authority to issue the NOC and only
thereafter the NOC was issued on 06.06.2018, which was produced
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before the Public Service Commission on 08.06.2018, i.e., much before
the final result/appointments were made. It is submitted that even the
learned Single Judge also imposed the cost on the employer for delay in
processing the application for NOC, however, refused to pass an order
of appointment in favour of the appellant.
3.1 It is submitted that therefore when there was no delay and/or fault
on the part of the appellant and there was a delay on the part of the
employer, which is a Government authority, in not issuing the NOC and
that the delay and/or fault is on the part of the employer, the appellant
should not be made to suffer.
3.2 It is submitted that as such and even as observed by the learned
Single Judge in his order dated 30.04.2018 in CWP No.27864 of 2017
the last candidate, who has been appointed is having less marks than
the appellant. It is submitted that therefore the appellant ought to have
been appointed on the post, on which the respondent No.4 is appointed.
3.3 Making above submissions, it is prayed to allow the present
appeal.
4. Learned counsel appearing on behalf of the Public Service
Commission has submitted that so far as the Public Service Commission
is concerned, it has nothing to do with the controversy as Public Service
Commission is not the competent authority.
5. A detailed counter affidavit has been filed on behalf of the
respondent No.1 – State of Haryana. It is submitted that an inquiry has
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been directed to be initiated for not processing and issuing the NOC at
the earliest and the delay on the part of the District Elementary
Education Officer, Jhajjar in not issuing the NOC though applied in the
year 2016 and issued only on 06.06.2018. However, it is not disputed by
any of the counsel on behalf of the respondents that on merits, the
appellant has scored more marks than respondent No.4, who is
appointed.
6. While opposing the present appeal, learned counsel appearing on
behalf of the respondent No.4 has submitted that irrespective of the
outcome of the present appeal, the service of the respondent No.4 be
protected as he is serving on the post since 2018 and that as on today
there are number of posts vacant. Therefore, he has requested this
Court to exercise the power under Article 142 of the Constitution of India.
7. We have heard the learned counsel appearing on behalf of the
respective parties at length.
7.1 From the chronological dates and events reproduced herein above
by no stretch of imagination, it can be said that there was any delay
and/or lapse or fault on the part of the appellant. The advertisement for
1647 posts was issued by the Haryana Public Service Commission on
16.02.2016. The last date to submit the form online was 15.03.2016. As
per the advertisement, the appellant was required to submit the NOC
from his employer, which in the present case is District Elementary
Education Officer, at the time of interview. The appellant applied for
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issuance of NOC on 22.03.2016 well in advance. The said application
was received vide Receipt No. 4223 dated 04.04.2016 in the office of
District Elementary Education Officer, Jhajjar. The appellant appeared
for the written examination for the post in question on 05.03.2017. The
result of the written examination was declared on 06.11.2017 and the
appellant also cleared the written examination. As observed
hereinabove, the appellant was to produce an NOC at the time of
interview. Therefore, in anticipation that non-receipt of the NOC may
come in his way in getting the appointment therefore, the appellant filed
the writ petition before the High Court being CWP No.27864 of 2017 on
05.12.2017 for issuance of the direction to the employer to release the
NOC. The learned Single Judge passed the interim order in favour of
the appellant in the aforesaid CWP No.27864 of 2017 vide order dated
07.12.2017 directing that if he falls within the zone of consideration for
being called for an interview for the post in question, shall be
provisionally interviewed, regardless of the fact that an NOC has not
been issued so far by the Department of Elementary Education.
7.2 It is not in dispute that pursuant to the interim order dated
07.12.2017, the appellant was interviewed provisionally. However, his
result was kept in a sealed cover. Thus, during pendency of the
aforesaid writ petition and despite the fact that pursuant to the interim
order dated 07.12.2017, the appellant was provisionally interviewed, the
Public Service Commission declared the result of final selection in
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respect of the interviews conducted from 12 th to 14th December, 2017 on
15.12.2017 and the actual appointments were made on 12.07.2018. In
the meantime, the appellant received the NOC on 06.06.2018 from his
employer – District Elementary Education Officer and immediately on
receipt of the same, the same was produced by him before the Public
Service Commission on 08.06.2018, i.e., even before the actual
appointments were made by the Public Service Commission, which were
made on 12.07.2018. Thus, from the aforesaid, it can be seen that there
was no delay and/or any fault on the part of the appellant. Whatever
was the lapse and/or the delay was, it was on the part of the employer of
the appellant, who did not issue the NOC though applied on 22.03.2016
and which was issued only on 06.06.2018 and that too after the
intervention of the High Court. Even the learned Single Judge also
noted that there was a delay and/or lapse on the part of the District
Elementary Education Officer, and therefore, even the learned Single
Judge also imposed the cost of Rs.50,000/- on the employer of the
appellant.
7.3 Once it is found that there was no lapse and/or delay on the part of
the appellant and /or there was no fault of the appellant in not producing
the NOC at the relevant time and when it was produced immediately on
receipt of the same and that too before the appointments were made
and when it is found that the last candidate, who is appointed, i.e.,
respondent No.4 herein is having less marks than the appellant and thus
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the appellant is a more meritorious candidate than the last candidate
appointed, i.e., respondent No.4, to deny him the appointment is not
justifiable at all. He cannot be punished for no fault of him. Both, the
learned Single Judge as well as the Division Bench of the High Court
have committed grave error in not exercising the jurisdiction vested in it
and in not directing the respondents to appoint the appellant though he
is found to be more meritorious candidate than the last candidate
appointed, i.e., respondent No.4.
7.4 Now, so far as the submission on behalf of the respondent No.4,
not to disturb and/or cancel the appointment of respondent No.4 and to
continue him in service is concerned, it cannot be disputed that he has
been working as the Assistant Professor (History) since 12.07.2018, i.e.,
for more than three years. It is nobody’s case that he got the
appointment in connivance with the authority. At the relevant time, he
was appointed as per merits. Thus, he has been appointed after
following due procedure of selection. It is also reported that the
respondent No.4 is a Ph.D. and is around 40 years of age. It is also
reported that after the impugned selection, there was a fresh selection,
however, the respondent No.4 did not apply as he was already selected
and appointed on 15.12.2017. Had the respondent No.4 not been
selected on 15.12.2017, in that case, he would have applied in the
forms, which were issued for Assistant Professor by Haryana Public
Service Commission by advertisement No. R.G 17/2017 and the last
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date for submitting the application was 15.03.2019. It is also reported
that by now he has also become age bar. It is also reported that if the
appointment of the respondent No.4 is cancelled and the respondent
No.4 is disturbed, his entire family would have to suffer. It is reported
that respondent No.4 has two daughters one aged three years and other
one and a half years and wife and an old mother and that he is the sole
bread earner in the family. It is also reported that there are in all around
244 sanctioned posts for Assistant Professor (History) and there is still
requirement of 93. Therefore, it is prayed to not to disturb the
respondent No.4 and to direct the State to accommodate him on another
vacant post of Assistant Professor (History).
Considering the aforesaid peculiar facts and circumstances of the
case and when it is found that there was no fault on the part of the
respondent No.4 when he was appointed in the year 2018 and
thereafter, he has been continued in service since last three years, to
disturb him at this stage, would not be justifiable. Therefore, in the
peculiar facts and circumstances of the case, in exercise of the powers
under Article 142 of the Constitution of India, to do the substantial
justice, we direct that while appointing the appellant as per the present
order on the post of Assistant Professor (History), the respondent No.4
may not be disturbed and we direct the State Government to continue
the respondent No.4 and he be accommodated on any other vacant post
of Assistant Professor (History).
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8. In view of the above and for the reasons stated above, present
appeal is allowed. The impugned judgment and order passed by the
Division Bench of the High Court dated 28.09.2021 passed in LPA
No.902 of 2021 as well as the judgment and order passed by the
learned Single Judge dated 06.11.2019 passed in CWP No.27864 of
2017 and CWP No.17255 of 2018 except the costs imposed by the
learned Single Judge are hereby quashed and set aside. However, the
costs imposed by the learned Single Judge is hereby maintained. The
State Government and the Haryana Public Service Commission are
hereby directed to issue appointment order to the appellant on the post
of Assistant Professor (History) for which he is found to be eligible and
meritorious. The said exercise be completed within a period of two
weeks from today. However, it is observed that on the principle of ‘No
Work No Pay’, the appellant shall not be entitled to any back wages but
shall be entitled to continuity in service for the purpose of seniority, pay
fixation etc.
It is further observed and directed that as observed hereinabove
while appointing the appellant pursuant to the present order, the
respondent No.4 be not disturbed and he be continued in service and he
be accommodated on any other post of Assistant Professor (History),
which is reported to be vacant.
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Present appeal is accordingly allowed. Pending application(s), if
any, also stand disposed of. No costs.
………………………………….J. [M.R. SHAH]
NEW DELHI; ………………………………….J.
JANUARY 18, 2022. [SANJIV KHANNA]
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