Krisan Kumar & ORS v. Haryana Vidyut Parsaran Nigam Ltd & ORS
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH 1.
LPA-1543-2016 Krishan Kumar and others . . . . Appellants
Versus
Haryana Vidyut Parsaran Nigam Ltd. and others . . . . Respondents **** 2.
LPA-1564-2016 Harbans Lal and others . . . . Appellants
Versus
Haryana Vidyut Parsaran Nigam Ltd. and others . . . . Respondents **** 3.
LPA-1695-2016 Chand Ram and others . . . . Appellants
Versus
Haryana Vidyut Parsaran Nigam Ltd. and others . . . . Respondents **** 4.
LPA-2479-2016 Satbir Singh and others . . . . Appellants
Versus
Haryana Vidyut Parsaran Nigam Ltd. and others . . . . Respondents **** 5.
LPA-2505-2016 Krishan Lal and others . . . . Appellants
Versus
Haryana Vidyut Parsaran Nigam Ltd. and others . . . . Respondents **** 6.
LPA-2506-2016 Suresh Singh and others . . . . Appellants
Versus
Haryana Vidyut Parsaran Nigam Ltd. and others . . . . Respondents ****
7.
LPA-207-2017 Nar Singh . . . . Appellant
Versus
Haryana Vidyut Parsaran Nigam Ltd. and others . . . . Respondents **** 8.
LPA-210-2017 Rakesh Kumar . . . . Appellant
Versus
Haryana Vidyut Parsaran Nigam Ltd. and others . . . . Respondents **** 9.
LPA-586-2017 Sat Pal and another . . . . Appellants
Versus
Haryana Vidyut Parsaran Nigam Ltd. and others . . . . Respondents **** 10.
LPA-587-2017 Laxman . . . . Appellant
Versus
Haryana Vidyut Parsaran Nigam Ltd. and others . . . . Respondents **** 11.
LPA-348-2017 Rajesh . . . . Appellant
Versus
Haryana Vidyut Parsaran Nigam Ltd. and others . . . . Respondents **** 12.
LPA-449-2017 Bhagwam . . . . Appellant
Versus
Haryana Vidyut Parsaran Nigam Ltd.
. . . . Respondent
****
Reserved on: 22.03.2023
Date of Decision: 19.04.2023 CORAM: HON'BLE MR JUSTICE M.S. RAMACHANDRA RAO HON'BLE MRS.JUSTICE SUKHVINDER KAUR Present: - Mr. R.K. Malik, Senior Advocate with Mr. Sunil Hooda, Advocate for the appellants (in LPAs-1543, 1564, 1695-2016).
Mr. Arihant Goyal, Advocate for the appellants (in LPAs-2479, 2505, 2506-2016). Ms. Sangita Dhanda, Advocate for the appellants (in LPAs-207, 210, 348-2017). Mr. Anil Dutt, Advocate for Mr. Sukhdev Singh Gopera, Advocate for the appellants (in LPAs-586, 587-2017).
Mr. Sanchit Punia, Advocate for the appellant (in LPA-449-2017).
Mr. B.R. Mahajan,Senior Advocate with Mr. Prateek Mahajan, Advocate and Ms. Nikita Goel, Advocate for HVPNL and UHBVNL. Mr. Hoshiar Singh Jaswal, Advocate for respondent Nos. 5 and 11 (in LPA-1564-2016). Mr. Arihant Goyal, Advocate for respondent Nos. 6 and 8 (in LPA-210, 348-2017). Ms. Tanisha Peshawaria, DAG, Haryana.
**** M.S. RAMACHANDRA RAO, J.
In this batch of LPAs, common questions of law arise and so they are being disposed off by this common order.
The appellants in all these cases are seeking quashing of orders passed terminating their services without any show cause notices and opportunity of hearing vide Annexures P-25 and P-26 collectively.
It is not in dispute that the appellants had been appointed as Assistant Linemen/Shift Attendants in the Haryana Vidyut Parsaran Nigam Ltd. ('HVPNL' for short) and had been working from 1993 to 1996. Their selection made in the year 1992 was quashed by this Court being faulty and the said decision was also upheld by the Supreme Court. The judgment in CWP No.17812 of 1997 on 03.12.2008 The selection was quashed by this Court in CWP No.17812 of 1997 on 03.12.2008. This Court had held that 336 Assistant Linemen belonging to reserved category had obtained higher marks to the last general category candidate; so they are to be treated in general category, and the next 336 candidates of reserved category are entitled to be appointed. Similarly, this Court had also held that 75 Shift Attendants belonging to reserved category had obtained higher marks to the last general candidate and hence, direction was issued that next 75 candidates of reserved category be offered appointments.
Later events Thereafter, it is not disputed that 336 Assistant Linemen of reserved category were offered appointments and similarly, 75 Shift Attendants were also offered appointments.
Of them, only 94 Assistant Linemen did not join and likewise, 59 Shift Attendants had also not joined.
In the process of implementing the judgment dt.03.12.2008 passed in CWP No.17812 of 1997, a fresh merit list was prepared in the year 2009, but the appellants were not selected or given appointment.
The judgment in CWP-22873-2010 and CWP-6101-2010 So they filed Civil Writ Petition bearing No. CWP-22873-2010 and CWP-6101-2010 before this Court seeking a direction for their selection/appointment on the ground that they have secured more marks i.e. 76 marks against the last selectee under BC category who secured only 63 marks, though according to the respondents, the last selectee secured 70 marks. Relying on the decision of this Court in CWP No.5356 of 2010 dt.06.12.
2010, the said CWP was allowed and it was held that the only ground of denying appointment to the appellants is that they did not indicate the category in the answer sheet; merely because they did not indicate their category in the answer-sheet, it does not mean that they cannot be considered under the reserved category, while previously they had applied under the reserved category of 'BC' in the year 1992; denying selection/appointment under such circumstances is violative of Articles 14 and 16 of the Constitution of India; and therefore the respondents were directed to declare the appellants as selected, and consequently, issue appointment orders to them against the posts of Assistant Linemen under the reserved category of 'BC-A'. Review Application No.
137 -2011 in CWP-22873-2010 and CWP-6101-2010 An application seeking review of the said order was filed but no stay was granted in the review application.
Thereafter, a contempt case bearing No.COCP-2987-2012 was filed in which notice of motion was issued for 15.11.2012. After receipt of notice, the respondent gave appointments to all the appellants in view of the pendency of the contempt petition against the existing
vacancies vide orders dt.15.11.2012 and 23.11.2012 (Annexures P-17 and P-18 collectively). In some of the appointment letters, a condition was imposed that said appointments would be subject to decision of the review petition. The review application No.137 of 2011 in CWP-22873-2010 and CWP-6101-2010 was subsequently allowed on 11.12.2014 vide Annexure P23. The Court opined that as per record, none of the appellants secured 76 marks as recorded by it in its order dt. 22.12.2010; that the Court had proceeded on a factually incorrect basis before treating the appellants' cases as similar with that of one Amit Chand; that it is an error apparent on the face of the record, and the order passed on 22.12.2010 is therefore to be recalled.
Events after the Review Applications were allowed After the review applications were allowed, the respondents decided to terminate the services of the appellants, even though by then, the appellants had completed their period of probation. The appellants therefore challenged the termination orders in CWP-16745-2015, CWP-16751-2015, and CWP-19626-2015. The common order of the learned Single Judge These writ petitions were tagged along with CWP-22873-2010 and CWP-6101-2010 and were disposed off by a common order by the learned Single Judge.
On 24.02.2016, this Court had directed the respondents to state whether in compliance of the judgment passed in CWP-17812-1997 dt.03.12.2008, the department was required to prepare a waiting list in case of non-joining of some Assistant Linemen and Shift Attendants and counsel for respondents were also asked to get instructions with regard to availability of
the posts as the appellants were appointed in the year 2012 during the pendency of the contempt petition which was later disposed of on 15.11.2012 as infructuous.
Thereafter an affidavit dt. 29.03.2016 was filed by the Deputy Secretary/HR & SR, HVPNL, Panchkula, clarifying that pursuant to the directions given in CWP-17812-1997, offer of appointment was made to 336 Assistant Linemen and 75 Shift Attendants, but no waiting list was prepared as offers were issued pursuant to recruitment process carried out in 1997. It was further stated that as per instructions dt.20.01.1998, the validity of the waiting list of the year 1997 would be over by 1998; no post pursuant to recruitment carried out in 1997 as per advertisement No.
CRA-143, was lying vacant; after issuing offer of appointment to the 336 reserved category candidates for the post of Assistant Linemen and 75 reserved category candidates for the post of Shift Attendants, requisition for filling up of various posts including Assistant Linemen and Shift Attendants was sent; and subsequently, 2329 posts of Assistant Linemen were advertised on 08.07.2008 by Haryana Staff Selection Commission on behalf of UHBVNL, DHBVNL and HVPNL and recruitment was made in the year 2010. It was further stated that 1000 posts of Assistant Linemen were again advertised on 19.03.2011 by the Haryana Staff Selection Commission on behalf of UHBVNL and DHBVNL and recruitment had been made in the year 2012.
It was also stated that recruitment process of filling up of 552 posts of Shift Attendants was initiated vide advertisement No.13/2007 and recruitment was made in the year 2010.
It was stated that the offer of appointment to candidates/appellants was given in compliance of the order dt.22.12.2010 in CWP-22873-2010 and CWP-6101-2010 subject to the outcome of Review Application No.137 of 2011 and 138 of 2011; as on 24.02.2016, several posts of Assistant Linemen and Shift Attendants were vacant in UHBVNL, DHBVNL and HVPNL; these vacancies became available in 2012 and no backlog of vacancies was available qua selection carried out in 1997, and so, the appellants cannot be appointed on the above said posts. The learned Single Judge referred to the above affidavit and also the decision rendered by this Court on 13.01.2016 in CWP-28663-2013, wherein the writ petitioner had made a claim that persons junior to him had been appointed and he had a prior right of appointment, and had sought the benefit of judgment dt.03.12.
2008 rendered in CWP-17812-1997, but the said writ petition was dismissed as withdrawn; that he was not a party to the writ petitions; validity of the waiting list was over by 1998; and so he had no right to be appointed on account of non-joining of some candidates pursuant to a selection made way back in 1997 and the decision given by the Court on 03.12.2008.
The learned Single Judge applied the said judgment and held that appellants had approached the Court in 2010 and were seeking appointment on vacant posts on the ground that persons who had been appointed way back in 1997 had got less marks than them; that their claim was that in the merit list prepared in 1997, they had got higher marks than the selected candidates in SC-A, SC-B, BC-A AND BC-B categories; that they are seeking accommodation on account of non-joining of some of the candidates; and
instead of approaching the Court in 1997, they filed the writ petitions in the year 2010. Reliance was also placed on the decision in CWP-14137-2010 dt.23.08.2011 holding that candidates who had filed original petition had been given appointments out of the earlier ranking list, and persons who were not parties to the original writ petition had no right to claim appointment on account of non-joining of some candidates.
The LPA Assailing the same, this batch of LPAs was filed. Sh. R.K. Malik, Sr. Counsel and other counsel appearing for the appellants sought to contend that the learned Single Judge erred in taking the view that the appellants had no right to continue in service, and the learned Single Judge ought to have held that in the vacancies which remained unfilled after the decision rendered by this Court in CWP-17812-1997 dt.03.12.2008, the appellants were entitled to be appointed and their services cannot be terminated by the respondents.
The learned Advocate General for the State of Haryana strongly refuted the said contentions and supported the judgment of the learned Single Judge. He pointed out that no post pursuant to recruitment carried out in 1997 was lying vacant; merely because 94 Assistant Linemen posts and 59 Shift Attendants posts remained vacant on account of the fact that the reserved candidates did not join their duties, after being invited to do so after the decision in CWP-17812-1997, the appellants cannot claim any right to be appointed in those vacancies because the waiting list had a validity of only one year which lapsed in the year 1998 itself. He contended that the appellants had no right to be appointed on account of non-joining of some candidates,
pursuant to a selection made way back in 1997, since the validity of the waiting list of the year 1997 would be over by 1998 as per instructions dt.20.01.1998.
Consideration by the Court We have noted the contentions of both sides.
Admittedly, the appellants are claiming their right to be appointed against the 94 Assistant Linemen and 59 Shift Attendants posts (forming part of the 336 Assistant Linemen and 75 Shift Attendants posts), in which reserved category candidates were offered appointments after the decision of this Court on 03.12.2008 in CWP-17812-1997, when these posts remained unfilled, because 94 Assistant Linemen and 59 Shift Attendants did not join. The appellants cannot rely on the order dt.03.12.
2008 in CWP-17812-1997 for the reason that the said order had directed the then HSEB to consider appointments of at least 336 reserved category candidates for the posts of Assistant Linemen and 75 reserved category candidates for the posts of Shift Attendants from amongst candidates of reserved category who may have been ousted as a result of wrong appointments made in the reserved category on account of the fact that though the said candidates of the year 1997 selection belonged to the reserved category had obtained higher marks to the last general category candidate, and instead of being treated in the general category, they were appointed against reserved category posts.
Attendants for filling up 75 Shift Attendants posts, nothing more was required to be done by the respondents.
If some of these posts remained unfilled because the candidates offered such appointments by the respondents did not join, the only course open to the respondents was to take up the fresh selection because the validity of the waiting list of 1997, pursuant to which the appellants had secured marks, had ended in 1998.
Unless the waiting list in law remains live and valid, the appellants could not have been issued appointment orders on 15.11.2012 and 23.11.2012.
They were given such appointment orders only because of the contempt application No.COCP-2987-2012 seeking implementation of the order dt.22.12.2010 passed in CWP-22873-2010. Once the said order came to be reviewed on 11.12.2014 and was recalled, the services of the appellants had to be terminated, and no fault can be found with the respondents for taking such action. The learned Single Judge was also right in holding that some of the appellants could not have filed writs in the year 2010 seeking appointment in the vacancies arising out of the 1997 selection, when they were not parties to CWP-17812-1997, and had not approached the Court in 1997 to be considered in those vacancies.
We are of the opinion that the learned Single Judge had properly considered the matter in the right perspective and the order of the learned Single Judge does not warrant any interference by us in exercise of jurisdiction under the Letters Patent Appeal.
Accordingly, all the LPAs are dismissed.
No costs.
Pending application(s), if any, also stands disposed of accordingly.
(M.S. RAMACHANDRA RAO) JUDGE (SUKHVINDER KAUR) JUDGE April 19, 2023.