The Judgments/Orders for the case CWP--12421/2012 :
| Sl.No. | Case Number | Date of Judgment/Order | Title |
| 1. | CWP--12421/2012 | 26/07/2013 | RAJESH KUMARI Vs. STATE OF HARYANA AND ORS |
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
*****
CWP No.12421 of 2012
DATE OF DECISION :26.07.2013
Rajesh Kumari .... Petitioner
Versus
State of Haryana and others ... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. R.K. Malik, Sr. Advocate with
Mr. Vijay Dahiya, Advocate for the petitioner.
Mr. Sunil Nehra, Sr. D.A.G. Haryana.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The Haryana Staff Selection Commission advertised 287 posts
of DPE in August 2009. A total of 129 posts were in open general category.
43 posts were reserved horizontally for General (Female). The petitioner
applied for the post in the General Category (Female) as well as under
Outstanding Sports Persons (General Category). The interviews were held
on 7.10.2010. The results were declared on 7.1.2011. The Commission
recommended 28 candidates in General (Female) category (GCF for short)
against 43 posts advertised. There was a short fall of 15 candidates. The
petitioner was eligible but was not successful in the merit determined
amongst 28 recommended candidates.
The petitioner approached this Court through CWP No.19920
of 2011 with the grievance that she was not selected for the post even
though a post was lying unfilled and available. The prayer was turned down
by order dated 21.10.2011 passed by the learned single judge of this Court.
CWP No.12421 of 2012 -2-
Aggrieved, the petitioner filed review application No.432 of
2011 armed with newly discovered facts to substantiate her case afresh. She
stated that a similarly situated person in the same recruitment process, in the
same category had been granted relief by this Court in CWP No.2846 of
2011; titled Manu Chahal v. State of Haryana.
Manju Chahal had applied against General Category (Female)
post and in additional thereto had applied separately from the category of
Outstanding Sports Person (OSP). Manju Chahal could not make it on merit
in OSP category as there was only one post advertised and a person higher
in merit stood appointed. However, her case under GCF was not considered.
By then 26 persons out of 43 have been found eligible and 17 posts
remained vacant. Manju Chahal had secured 48.93 marks whereas the
petitioner scored 50.70 marks. The learned Single Judge of this Court by
order dated 16.2.2012 issued a direction to the respondents to appoint
Manju Chahal to the post of DPE under GCF category. The principle
applied was that a person who has applied under reserve category has an
automatic right to be considered in the General Category. See: H.S. Grewal
v. State of Punjab; 2002 (1) SCT 868. The Constitution Bench of the
Supreme Court in R.K. Sabharwal v. State of Punjab; (1995) –SCC have
laid down to rest the principle that a reserve category candidate has an
exclusive right of consideration against his quota post where none else can
compete in vertical reservation and a constitutional right to consideration
against General Category posts as well on their own merit determined in the
selection.
The present petitioner prayed in review application that she
may be permitted to withdraw the writ petition which was bereft of full facts
CWP No.12421 of 2012 -3-
to enable her to file a fresh writ petition on the same cause of action. The
prayer was accepted. The order dated 21.10.2011 was recalled and liberty
granted to sue again on the same cause of action. The review application
was accordingly disposed of on 20.4.2012.
In response to the petition, the State has filed a short reply
pointing out that the reply of the Commission may be seen. The
Commission in its separate reply has taken the stand that the petitioner has
applied under Outstanding Sports Persons (General Category) and obtained
50.70 marks as against 54.42 marks obtained by the last selected candidate
in this category of OSP. Therefore, she could not make the grade in the
selection list. As she had applied under reserve category and lost on merit
her case could not be considered in General Category (Female). The
Commission has relied upon an order dated 13.8.2009 passed by the learned
Single Judge of this Court in CWP No.9709 of 2009; Smt. Renuka Devi v.
State of Haryana and another in a case involving appointments to the post
of Female Supervisor. This decision does not reflect the true legal position
following Indira Sawhney and the Sabharwal cases
The petitioner's eligibility under both the categories is not
disputed. It is also not disputed that some posts in General Category
(Female) remained unfilled after selection and appointment. It is stated that
unfilled vacancies in GCF can be diverted for appointment of General
Category (Male) candidates.
There can be no doubt that Manju Chahal has been appointed
with the score of 48.93 marks in GCF, pursuant to the direction of this
Court. Since the petitioner has scored 50.70 marks, she is higher in merit
than Manju Chahal and has a preferential right of consideration for
CWP No.12421 of 2012 -4-
appointment against available vacancy in the category.
This Court had called for the original application form of the
petitioner in a sealed cover to determine whether the petitioner had in fact
applied under both the categories. The record was produced and this Court
is satisfied on its examination that the petitioner had also applied in the
General Category.
There is merit in the submission of Mr. Malik, learned senior
counsel appearing for the petitioner that this matter is covered by the
decision in Manju Chahal's case and any departure would result in violation
of Articles 14 and 16 of the Constitution of India and result in invidious and
hostile discrimination by the State in not offering appointment to the
petitioner.
For the foregoing reason, this petition is allowed and a
direction is issued to the respondents to offer appointment to the petitioner
within 30 days of receipt of a certified copy of this order and in case the
offer is accepted within the time allowed, the petitioner may be permitted to
join service as DPE in the Education Department, Haryana with all
consequential benefits including seniority above Manju Chahal or any one
below her on merit, in case appointed from the same recruitment process.
26.07.2013 (RAJIV NARAIN RAINA)
rajeev JUDGE
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