Punjab-Haryana High Court
Sandeep Sharma vs State Of Haryana And Others on 23 April, 2021C.W.P.No. 27507 of 2019 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P.No. 27507 of 2019
Date of Decision:- 23.04.2021
Sandeep Sharma ….Petitioner
vs.
State of Haryana and others ….Respondents
***
CORAM:- HON’BLE MR. JUSTICE SUDHIR MITTAL
***
Present:- Mr. Sanjay Kaushal, Senior Advocate with
Mr. A.P. Setia, Advocate,
for the petitioner.
Mr. N.S. Behgal, Asstt. Advocate General, Haryana.
Mr. Rajender Singh Malik, Advocate,
for respondent No.3.
Mr. Kanwal Goyal, Advocate for HPSC.
***
SUDHIR MITTAL, J.
The State Government and its functionaries always complain that
pendency in Courts is on the rise and that steps need to be taken to reduce the
same. The blame is laid at the doorstep of the Judiciary, without realising, that
pendency in Courts is contributed to the maximum level by its own actions. In the
present case, there is a binding precedent of a Division Bench of this Court,
covering the question of law arising in the present petition, however, the same has
been ignored. Had the ratio of the binding precedent been taken into consideration,
filing of this writ petition could have been obviated.
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The question of law which arises for consideration in this writ petition
is whether upon improvement of marks of a particular qualification, the same shall
relate back to the date of acquiring the said qualification or not? If yes, whether the
petitioner is entitled to be considered for appointment to the post of Naib
Tehsildar?
The facts are not in dispute and are briefly enumerated hereinafter.
The Haryana State Public Service Commission (hereinafter referred to as ‘the
Commission’) advertised 70 posts of Naib Tehsildar vide advertisement dated
23.07.2015. Closing date for submission of online applications was 22.08.2015.
For some reason, the process of appointment could not be completed and thus
corrigendum dated 01.05.2018 was issued. The closing date for submission of
online applications was disclosed as 15.05.2018 and eligibility with regard to
qualifications and other conditions of eligibility was to be determined as on last
date of submission of online application forms. Age was to be reckoned as on
01.01.2018. Essential qualifications for the post mentioned in the advertisement
published on 23.07.2015 were:
( a) Graduate of a recognised University and
(b) Knowledge of Hindi/Sanskrit upto Matric Standard or higher.
Being eligible in all respects, the petitioner submitted his application
and was invited for the recruitment test held on 26.05.2019. Thereafter, the
Haryana School Education Board issued a press note, sometime in June 2019,
providing a golden chance to students who had passed their Secondary/Senior
Secondary Examination between March 2001 to September 2008, for improving
their marks in one subject. The petitioner applied and appeared in the examination
held between 18.06.2019 and 28.06.2019. Result was declared in August 2019 and
the petitioner improved his marks in English in the Secondary Examination as also
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the marks of the same subject in the Senior Secondary Examination.
Consequently, in both the said examinations, he scored more than 60% marks.
Soon thereafter, the petitioner was invited to appear for the interview on
14.08.2019. He did so along with the result of the Secondary/Senior Secondary
Examination, revised after improvement of marks in the English subject. The
said result was addressed to the Secretary of the Commission and was produced in
a sealed cover along with application of the petitioner dated 14.08.2019, in which
it was prayed that the result may be prepared after taking into consideration the
revised marks of the Secondary/Senior Secondary Examination. Result was
declared on 16.08.2019 and the petitioner was unsuccessful. The last selected
candidate secured 78.46 marks and he has been impleaded as respondent No. 3 in
the present writ petition.
The petitioner sought information vide request dated 29.08.2019,
under the Right to Information Act, 2005 (hereinafter referred to as the 2005 Act)
and he was informed that the criteria for the interviews had been fixed just before
the date of interviews. He also sought for details of the marks obtained by him in
the interview and the same were provided to him. He scored a total of 77.75
marks. From the detailed breakdown provided by the Commission, it becomes
evident that out of the total marks stipulated for the interview, maximum 7 marks
each were provided for the percentage of marks obtained in the Secondary
Examination and Senior Secondary Examination and for consistency i.e. obtaining
50% and above marks in any two out of three examinations (Matric, 10+2 and
Graduation), a maximum of 6 marks were provided. A candidate scoring above
60% marks in Matric and 10+2, was entitled to be granted 7 marks whereas for
consistency the maximum of 6 marks was awardable to a candidate scoring 60%
and above in two out of three examinations. The petitioner was awarded 6 marks
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each for having scored between 50 to 59.99% marks in Matric and 10+2 and for
consistency he was awarded 5 marks.
Learned Senior counsel for the petitioner has argued that as is
evident from reply to the application filed under the 2005 Act, the criteria for the
interview was finalised just before the interview was held and thus the improved
marks of the petitioner should have been taken into consideration while
evaluating his merit. In addition, it has been submitted that by improving his marks
in the Secondary and Senior Secondary Examination, the overall result of the
petitioner for the said examination improved and the improvement relates back to
the date of passing of the aforesaid examination as the petitioner had acquired the
qualification of Matric and 10+2 much earlier. That being so, the revised result
should have been taken into consideration and had that been done, the petitioner
would have scored 7 marks each for qualification of Matric and 10+2 and 6 marks
for consistency, thus improving his overall score to 80.75 which is more than that
secured by the last selected candidate. The petitioner was, thus, entitled to be
appointed. In this context it has also been argued that in the general category (to
which the petitioner belongs), 2 vacancies exist on account of non-joining of
selected candidates and thus, the petitioner can be appointed against one of the
said vacancies. Respondent No. 3 need not be dislodged. Reliance has been
placed upon a Division Bench judgement of this Court dated 10.01.2013 passed in
CWP 23896 of 2012 Preeti Gulia vs. State of Haryana and another and other
connected matters.
Learned counsel for the Commission, however, submits that in
accordance with the command of the Haryana Civil Services (Executive Branch)
and Allied Services and other Services Common/Combined Examination Act,
2002 (hereinafter referred to as the ‘2002 Act’), the Commission can only
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recommend candidates equal to the number of advertised posts. It does not entitle
the Commission to appoint candidates beyond the number of advertised posts and
accordingly no candidate has the right to seek appointment beyond the number of
advertised posts. Thus, even if the petitioner score more marks than the last
selected candidate, he cannot be appointed. It is further submitted that only
candidates who possess the requisite eligibility on the last date of submission of
application, are entitled to be considered for appointment. The petitioner improved
his marks after the cut-off date and, thus, the same cannot be taken into
consideration for evaluating his merit. Reliance has been placed upon a Division
Bench judgement of this Court dated 08.10.1996 passed in CWP 3687 of 1996
Kabal Singh and others versus State of Punjab and another and connected
matters as well as a Division Bench judgement of the Allahabad High Court dated
21.02. 2018 passed in Special Appeal No. 733 of 2010 Km. Anjuman Upadhyay
versus State of U.P. and others.
The learned State counsel as well as counsel for respondent No. 3
have supported the case of the Commission. He has argued that advertisement
published on 23.07.2015 has specifically stated that eligibility with regards
qualifications and other conditions of eligibility etc. will be determined as on last
date of submission of online application forms i.e. 22.08.2015. This date was
extended to 15.05.2018 vide the corrigendum and, thus improvement of marks of
the petitioner in August 2019 cannot be taken into consideration. He relies upon a
judgement of the Supreme Court in Ashok Kumar Sonkar versus Union of India
and others 2007 (4 )SCC 54.
From the pleadings and arguments of learned counsel for the parties,
it is evident that the facts are not in dispute. It is not in dispute that the petitioner
possessed the eligibility condition of Matric and Graduation as on the cut-off date.
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It is also not disputed that the petitioner submitted his application before the said
date. It is further not disputed that the petitioner improved his score of 10th and
12th Examination before the date of interview and that the result was supplied at
the time of interview. Keeping these facts in the background, the issue to be
decided is whether the improved score of Class 10th and 12th should be taken into
consideration while evaluating the merit of the petitioner? In Preeti Gulia (supra)
the facts were that Preeti Gulia applied for the post of Graduate Teacher and one
of the essential qualifications for the post was at least 50% marks in M. Com. She
submitted her application on 18.06.2012, much prior to the cut-off date, and
appeared for improvement chance in the M.Com. Degree scoring 57.6% as per
result dated 28.09.2012. Earlier, she had secured 55.52% marks. Since the number
of candidates who applied for the post of Graduate Teacher was large, the bar for
selection was raised to 57% from 50% and the petitioner was declared
unsuccessful. The Division Bench held that improvement of the score relates back
to the date on which the qualification was acquired and the argument of the State
that eligibility has to be seen as on the last date for submission of application was
rejected because the eligibility of the candidate was not in dispute. The same is the
situation in the present case.
The provision of the 2002 Act pressed into service by learned counsel
for the Commission applies only if a candidate seeks appointment beyond the
number of advertised posts. That is not the case instantly. The petitioner seeks to
dislodge the last selected candidate (respondent No. 3) on the ground of higher
merit which is totally distinct from a case where a candidate seeks appointment in
addition to the last candidate or in excess of the number of advertised posts. Thus,
the argument is misconceived.
The judgement in Kabal Singh (supra) does not apply for the same
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reason. The issue being examined in the case was whether a candidate who did not
possess a diploma in MPHW (Multi Purpose Health Worker) on the last date of
submission of application was entitled to seek appointment as such when the
advertisement prescribed the possession of the diploma as essential eligibility
condition. The candidates therein cleared the diploma examination after passing
the supplementary examination held after the last date for submission of
applications and consequently it was held that they acquired the eligibility after the
cut off date.
The judgment in Km. Anjuman Upadhyay (supra) supports the case
of the State. The appellant therein had improved her score in Graduation prior to
the cut off date and the said fact should have been taken into consideration while
calculating the marks. The Division Bench, however, rejected this argument by
holding another Division Bench judgment dated 11.9.2007 passed in Special
Appeal No. 86 of 2004 Director Rajya Shaikshik Anusandhan Evam
Prashikshan Parishad, Uttar Pradesh, Lucknow and others vs. Kamlesh Kumar
Yadav as per incuriam. For coming to this conclusion, reliance was placed upon
the judgment of the Supreme Court which laid down that eligibility acquired after
the cut-off date cannot be taken into consideration. In my respectful view, the
learned Division Bench misconstrued the judgment of the Supreme Court and
wrongly held the Division Bench judgment in Kamlesh Kumar Yadav (supra) to
be per incuriam. The issue was not regarding acquisition of eligibility after the
cut-off date but of improving the score after the cut-off date which would relate
back to the date of the examination in which the score was improved.
Be that as it may, the Division Bench judgment of this Court in Preeti
Gulia (supra) binds me and not the Division Bench judgment of the Allahabad
High Court. Consequently, I choose not to follow the same.
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On account of the foregoing reasons, the writ petition succeeds. The
Commission is directed to reconsider the case of the petitioner after taking into
consideration the improved marks in Class 10 and Class 12. If the petitioner scores
higher marks than the last selected candidate, he would be entitled to grant of
appointment. In case, two vacancies exist as submitted by learned Senior counsel
for the petitioner, respondent No. 3 need not be dislodged. The entire exercise be
carried out within four weeks from the date of receipt of a certified copy of this
judgment and order.
April 23, 2021 ( SUDHIR MITTAL )
poonam JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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