NARENDER SINGH versus THE STATE OF HARYANA & ORS. on 18 January 2022

[2022] 1 S.C.R. 311

NARENDER SINGH

v.

THE STATE OF HARYANA & ORS.

(Civil Appeal No. 321 of 2022)

JANUARY 18, 2022

[M. R. SHAH AND SANJIV KHANNA, JJ.]

Service Law: Selection – Haryana Public Service Commission(PSC) advertised for post of Assistant Professor – Appellant whowas JBT Teacher in Education Department applied for the said post– As per advertisement, candidate was required to submit NOC fromits appointing authority, at the time of interview – He applied forissuance of NOC from the authority – He successfully appeared inwritten examination – At the time of interview, he had to submit theNOC – Appellant sent reminders to the authority but he was notissued NOC – He filed writ petition – By way of interim order, HighCourt directed to allow him to appear in interview – He wasprovisionally interviewed and his result was kept in sealed cover –Meanwhile, when matter came up for hearing in High Court, thesealed cover was opened and it was found that appellant hadobtained marks higher than the last candidate selected – Thereafter,result of final selection was declared – PSC did not appoint him inabsence of NOC – Prior to the appointment orders, appellantreceived NOC from the authority and submitted with the PSC –Despite that he was not appointed – High Court dismissed writpetition filed by him – On appeal, held: Once it is found that therewas no lapse and/or delay on the part of the appellant and/or therewas no fault of the appellant in not producing the NOC at therelevant time and when it was produced immediately on receipt ofthe same and that too before the appointments were made and whenit was found that the appellant was a more meritorious candidatethan the last candidate appointed, to deny appellant the appointmentwas not justifiable at all – He cannot be punished for no fault ofhim – As regards respondent no.4, he was appointed after followingdue procedure of selection – There was no fault on part of respondentno.4 when he was appointed and thereafter, he continued in servicefor three years – Therefore, it would not be justifiable, to disturb 312SUPREME COURT REPORTS

Ahim at this stage – In the peculiar facts and circumstances of thecase, in exercise of the powers under Art.142 of the Constitution ofIndia, to do substantial justice, it is directed that while appointingthe appellant on the post of Assistant Professor, respondent No.4may not be disturbed – The State Government is directed to continuerespondent No.4 and he be accommodated on any other vacantBpost of Assistant Professor – Constitution of India – Art.142.

Allowing the appeal, the Court

Conclusion

HELD: 1.1 It is not in dispute that pursuant to the interimorder dated 07.12.2017, the appellant was interviewedCprovisionally. However, his result was kept in a sealed cover.Thus, during pendency of the aforesaid writ petition and despitethe fact that pursuant to the interim order dated 07.12.2017, theappellant was provisionally interviewed, the Public ServiceCommission declared the result of final selection in respect ofthe interviews conducted from 12[th] to 14[th] December, 2017 onD15.12.2017 and the actual appointments were made on 12.07.2018.In the meantime, the appellant received the NOC on 06.06.2018from his employer and immediately on receipt of the same, thesame was produced by him before the Public Service Commissionon 08.06.2018, i.e., even before the actual appointments wereEmade by the Public Service Commission, which were made on12.07.2018. Thus, from the aforesaid, it can be seen that therewas no delay and/or any fault on the part of the appellant. Whateverwas the lapse and/or the delay was, it was on the part of theemployer of the appellant, who did not issue the NOC thoughapplied on 22.03.2016 and which was issued only on 06.06.2018Fand that too after the intervention of the High Court. Even theSingle Judge also noted that there was a delay and/or lapse onthe part of the District Elementary Education Officer,and therefore, even the Single Judge also imposed the cost ofRs.50,000/- on the employer of the appellant. [Para 7.2]G[319-B-F]

1.2 Once it is found that there was no lapse and/or delay onthe part of the appellant and /or there was no fault of the appellantin not producing the NOC at the relevant time and when it wasproduced immediately on receipt of the same and that too beforeHthe appointments were made and when it is found that the last candidate, who is appointed, i.e., respondent No.4 is having lessmarks than the appellant and thus the appellant is a moremeritorious candidate than the last candidate appointed, i.e.,respondent No.4, to deny him the appointment is not justifiableat all. He cannot be punished for no fault of him. Both, the SingleJudge as well as the Division Bench of the High Court committedgrave error in not exercising the jurisdiction vested in it and innot directing the respondents to appoint the appellant though heis found to be more meritorious candidate than the last candidateappointed, i.e., respondent No.4. [Para 7.3][319-F-H; 320-A-B]

2. It cannot be disputed that respondent no. 4 was workingas the Assistant Professor (History) for more than three years. Itis nobody’s case that he got the appointment in connivance withthe authority. At the relevant time, he was appointed as per merits.Thus, he was appointed after following due procedure of selection.He is a Ph.D. and is around 40 years of age. After the impugnedselection, there was a fresh selection, however, the respondentNo.4 did not apply as he was already selected and appointed on15.12.2017. If the appointment of respondent No.4 is cancelledand he is disturbed, his entire family would have to suffer. It isreported that respondent No.4 has two daughters one aged threeyears and other one and a half years and wife and an old motherand that he is the sole bread earner in the family. It is also reportedthat there are in all around 244 sanctioned posts for AssistantProfessor (History) and there is still requirement of 93.Considering the peculiar facts and circumstances of the case todisturb respondent No.4 at this stage, would not be justifiable.Therefore, in exercise of the powers under Article 142 of theConstitution of India, to do the substantial justice, it is directedthat while appointing the appellant on the post of AssistantProfessor (History), respondent No.4 may not be disturbed andthe State Government is directed to continue respondent No.4and he be accommodated on any other vacant post of AssistantProfessor (History). The impugned judgment and order passedby the Division Bench of the High Court as well as the judgmentand order passed by the Single Judge dated except the costsimposed by the Single Judge are hereby quashed and set aside.[Paras 7.4, 8][320-B-H; 321-A-C]

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 321 of2022.

From the Judgment and Order dated 28.09.2021 of the High Courtof Punjab and Haryana at Chandigarh in LPA No.902 of 2021.

Narender Hooda, Sr. Adv., Paulami Sen, Dr. Surender SinghBHooda, Advs. for the Appellant.

Ms. Alka Agarwal, AAG, Dr. Monika Gusain, D. S. Chauhan,Ms. Ruchi Singh, Prashant Kumar, Rahul Kaushik, Ms. BhuvneshwariPathak, Advs. for the Respondents.

CThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand 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 byDwhich 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 theEducation Department, Haryana in the year 2000 and since then he isEworking as a JBT Teacher at Government PrimarySchool, Chhapar,Haryana. That the Haryana Public Service Commissionadvertised 1647posts of Assistant Professor (College Cadre) in the State of Haryanaon16.02.2016. Last date to submit the form online was 15.03.2016, whichwas extended upto 10.05.2016. The appellant herein applied timely forFthe post of Assistant Professor (History). As per the advertisement dated16.02.2016, the candidate was required to submit a No ObjectionCertificate (NOC) from its appointing authority in case he is serving in aGovernment/Semi Government organization under any State Governmentor Government of India, at the time of interview.

G2.2 To comply with the same, the appellant applied for issuanceof NOC on 22.03.2016 through the Principal, Government SeniorSecondary School, Jhanswa, District Jhajjar to the District ElementaryEducation Officer, Jhajjar, the competent authority to issue the NOC.That the said application was received by the office of District ElementaryEducation Officer, Jhajjar on 04.04.2016. The appellant appeared forH

the written examination for the aforesaid post on 05.03.2017. The resultof the written examination was also declared on 06.11.2017 and theappellant cleared the written examination. That after clearing the writtenexamination, the appellant was to submit the NOC at the time of interview.The appellant sent a reminder to the Director, Elementary Education forissuance of the NOC vide his letter dated 09.11.2017, which was receivedon 09.11.2017 but no action was taken by the concerned branch on hisreminder. Therefore, the appellant filed a Civil Writ Petition No.27864of 2017 before the High Court for an appropriate order directing theappropriate authority to issue NOC. It was the specific case on behalfof the appellant that though he had made an application for NOC as faras back in the month of March, 2016, the NOC has not been issued. Itwas also submitted that despite the fact that he has passed the writtenexamination and interviews are to be held on 13.12.2017, the Departmentof Elementary Education is not issuing him NOC. By order dated07.12.2017, the High Court issued the notice in the aforesaid writ petitionand passed the interim order that the petitioner, if he falls within the zoneof consideration for being called for an interview for the post in question,shall be provisionally interviewed, regardless of the fact that an NOChasnot 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 asealed cover. However, the Public Service Commission did not appointhim in absence of any NOC issued by the Department of ElementaryEducation. Result of the final selection in respect of the interviews gotconducted was declared on 15.12.2017 and the appointments were madeon 12.07.2018. In between, a Writ Petition No.27864 of 2017 came upbefore the High Court on 30.04.2018. Learned counsel appearing onbehalf of the Public Service Commission produced the result of theappellant in a sealedcover, which was opened and it was revealed thatthe last candidate in the category of the appellant, i.e., BCA has obtained62.64 marks whereas the writ petitioner had scored 64.89 marks, therefore,the High Court observed that the appellant – original petitioner is qualifiedfor selection, subject to, however, the dispute involved in the lis. However,the High Court adjourned the matter to 21.05.2018 and thereafteradjourned to 04.10.2018. In the meantime, the competent authority issuedNOC in favour of the petitioner – appellant herein on 06.06.2018. Theappellant also submitted the NOC with the Haryana Public ServiceCommission on 08.06.2018 and requested to consider his case for AB

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Aappointment. The petitioner also filed one CM No.9680 of 2018 in CWPNo.27864 of 2017 on 10.07.2018 mentioning that now the NOC hasbeen received on 06.06.2018, and has also been submitted with the PublicService Commission on 08.06.2018, therefore, it was requested for earlyhearing of the writ petition. It appears that thereafter and despite thefact that before the actual appointments were made by the Public ServiceBCommission on 12.07.2018, NOC was submitted on 08.06.2018,but theappellant was not appointed, therefore, immediately on the very nextdate, i.e., 16.07.2018, the appellant herein filed a fresh Writ PetitionNo.17255 of 2018 for a direction to the Public Service Commission toappoint him on the post of Assistant Professor (History) contending interCalia that he has already now produced the NOC and that on merits, he isentitled to appointment as the person last selected is having lesser marksthan him as observed in the earlier order dated 30.04.2018. However,despite the aforesaid facts and circumstances, by judgment and orderdated 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 thatDif the petitioner had applied for NOC in the year 2016, he had ampletime from the date of advertisement and date of submission of the onlineform to pursue his claim for issuance of NOC with his employer,butchose to invoke thejurisdiction of the Court only after the declaration ofthe result of the written test on 09.11.2017 and thereafter also waited tillE05.12.2017 on which date he filed a writ petition for issuance of directionsto the employer to release the NOC and in the meantime, the appointmentswere already made and therefore, the petitioner is not entitled to anyrelief. However, it is required to be noted that the learned Single Judgeof the High Court also observed that for the delay, the grievance, if any,Fof the petitioner can be against the employer in not issuing NOC beforethe date fixed for interview to enable him to comply with the conditionsstipulated in the application form for which the petitioner, if so, advisedmay seek appropriate remedy against the employer in accordance withlaw. With above observations the High Court dismissed the aforesaidtwo writ petitions. However, the High Court also imposed a cost ofGRs.50,000/- against the employer for not issuing the NOC and the failureon the part of the employer to process the application for issuance ofNOC within a reasonable period of time. However, the learned SingleJudge refused to pass any order of appointment in favour of the originalwrit petitioner.

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2.4 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge dismissing the writ petitions, moreparticularly, CWP No.17255 of 2018, the appellant preferred Letter PatentAppeal 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 judgmentand order passed by the Division Bench of the High Court in dismissingthe LPA and not interfering with the judgment and order passed by thelearned Single Judge dismissing the writ petition and refusing to grantany relief directing the respondents to appoint the appellant – the originalwrit petitioner has preferred the present appeal.

3. Learned counsel appearing for the appellant has vehementlysubmitted that as such there was no delay and/or any fault on the part ofthe appellant. It is submitted that the appellant applied for NOC wellwithin time and before the last date of the submission of the onlineapplication form. It is submitted that even thereafter a reminder wassent, but despite the reminder the NOC was not issued and the selectionprocess was proceeding further by the Public Service Commission and,therefore,the appellant was constrained to file the writ petition beforethe High Court directing the appropriate authority to issue the NOC andonly thereafter the NOC was issued on 06.06.2018, which was producedbefore the Public Service Commission on 08.06.2018, i.e., much beforethe final result/appointments were made. It is submitted that even thelearned Single Judge also imposed the cost on the employer for delay inprocessing the application for NOC, however, refused to pass an orderof appointment in favour of the appellant.

3.1 It is submitted that therefore when there was no delay and/orfault on the part of the appellant and there was a delay on the part of theemployer, which is a Government authority, in not issuing the NOC andthat the delay and/or fault is on the part of the employer, the appellantshould not be made to suffer.

3.2 It is submitted that as such and even as observed by the learnedSingle Judge in his order dated 30.04.2018 in CWP No.27864 of 2017the last candidate, who has been appointed is having less marks than theappellant. It is submitted that therefore the appellant ought to have beenappointed on the post, on which the respondent No.4 is appointed.

3.3 Making above submissions, it is prayed to allow the presentappeal.

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A4. Learned counsel appearing on behalf of the Public ServiceCommission has submitted that so far as the Public Service Commissionis concerned, it has nothing to do with the controversy as Public ServiceCommission is not the competent authority.

5. A detailed counter affidavit has been filed on behalf of theBrespondent No.1 – State of Haryana. It is submitted that an inquiry hasbeen directed to be initiated for not processing and issuing the NOC atthe earliest and the delay on the part of the District Elementary EducationOfficer, Jhajjar in not issuing the NOC though applied in the year 2016and issued only on 06.06.2018. However, it is not disputed by any of thecounsel on behalf of the respondents that on merits, the appellant hasCscored more marks than respondent No.4, who is appointed.

6. While opposing the present appeal, learned counsel appearingon behalf of the respondent No.4 has submitted that irrespective of theoutcome of the present appeal, the service of the respondent No.4 beprotected as he is serving on the post since 2018 and that as on todayDthere are number of posts vacant. Therefore, he has requested this Courtto exercise the power under Article 142 of the Constitution of India.

7. We have heard the learned counsel appearing on behalf of therespective parties at length.

E7.1 From the chronological dates and events reproduced hereinabove by no stretch of imagination, it can be said that there was anydelay and/or lapse or fault on the part of the appellant. The advertisementfor 1647 posts was issued by the Haryana Public Service Commissionon 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 NOCFfrom his employer, which in the present case is District ElementaryEducation Officer, at the time of interview. The appellant applied forissuance of NOC on 22.03.2016 well in advance. The said applicationwas received vide Receipt No. 4223 dated 04.04.2016 in the office ofDistrict Elementary Education Officer, Jhajjar. The appellant appearedGfor the written examination for the post in question on 05.03.2017. Theresult of the written examination was declared on 06.11.2017 and theappellant 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 ingetting the appointment therefore, the appellant filed the writ petitionH

before the High Court being CWP No.27864 of 2017 on 05.12.2017 forissuance of the direction to the employer to release the NOC. The learnedSingle Judge passed the interim order in favour of the appellant in theaforesaid CWP No.27864 of 2017 vide order dated 07.12.2017 directingthat if he falls within the zone of consideration for being called for aninterview for the post in question, shall be provisionally interviewed,regardless of the fact that an NOC has not been issued so far by theDepartment of Elementary Education.

7.2 It is not in dispute that pursuant to the interim order dated07.12.2017, the appellant was interviewed provisionally. However, hisresult was kept in a sealed cover. Thus, during pendency of the aforesaidwrit petition and despite the fact that pursuant to the interim order dated07.12.2017, the appellant was provisionally interviewed, the Public ServiceCommission declared the result of final selection in respect of theinterviews conducted from 12[th] to 14[th] December, 2017 on 15.12.2017and 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 ofthe same, the same was produced by him before the Public ServiceCommission on 08.06.2018, i.e., even before the actual appointmentswere made by the Public Service Commission, which were made on12.07.2018. Thus, from the aforesaid, it can be seen that there was nodelay and/or any fault on the part of the appellant. Whatever was thelapse and/or the delay was, it was on the part of the employer of theappellant, who did not issue the NOC though applied on 22.03.2016 andwhich was issued only on 06.06.2018 and that too after the interventionof the High Court. Even the learned Single Judge also noted that therewas a delay and/or lapse on the part of the District Elementary EducationOfficer, and therefore, even the learned Single Judge also imposed thecost 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 thepart of the appellant and /or there was no fault of the appellant in notproducing the NOC at the relevant time and when it was producedimmediately on receipt of the same and that too before the appointmentswere 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 andthus the appellant is a more meritorious candidate than the last candidateappointed, i.e., respondent No.4, to deny him the appointment is not AB

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Ajustifiable at all. He cannot be punished for no fault of him. Both, thelearned Single Judge as well as the Division Bench of the High Courthave committed grave error in not exercising the jurisdiction vested in itand in not directing the respondents to appoint the appellant though he isfound to be more meritorious candidate than the last candidate appointed,i.e., respondent No.4.B

7.4 Now, so far as the submission on behalf of the respondentNo.4, not to disturb and/or cancel the appointment of respondent No.4and to continue him in service is concerned, it cannot be disputed that hehas 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 theCappointment in connivance with the authority. At the relevant time, hewas appointed as per merits. Thus, he has been appointed after followingdue procedure of selection. It is also reported that the respondent No.4is a Ph.D. and is around 40 years of age. It is also reported that after theimpugned selection, there was a fresh selection, however, the respondentDNo.4 did not apply as he was already selected and appointed on15.12.2017. 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 forAssistant Professor by Haryana Public Service Commission byadvertisement No.R.G17/2017 and the last date for submitting theapplication was 15.03.2019. It is also reported that by now he has alsoEbecome age bar. It is also reported that if the appointment of therespondent No.4 is cancelled and the respondent No.4 is disturbed, hisentire family would have to suffer. It is reported that respondent No.4has two daughters one aged three years and other one and a half yearsand wife and an old mother and that he is the sole bread earner in theFfamily. It is also reported that there are in all around 244 sanctionedposts for Assistant Professor (History) and there is still requirement of93. Therefore, it is prayed to not to disturb the respondent No.4 and todirect the State to accommodate him on another vacant post of AssistantProfessor (History).

GConsidering the aforesaid peculiar facts and circumstances ofthe case and when it is found that there was no fault on the part of therespondent 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 atthis stage, would not be justifiable. Therefore, in the peculiar facts andcircumstances of the case, in exercise of the powers under Article 142H

of the Constitution of India, to do the substantial justice, we direct thatwhile appointing the appellant as per the present order on the post ofAssistant Professor (History), the respondent No.4 may not be disturbedand we direct the State Government to continue the respondent No.4and he be accommodated on any other vacant post of Assistant Professor(History).

8. In view of the above and for the reasons stated above, presentappeal is allowed. The impugned judgment and order passed by theDivision Bench of the High Court dated 28.09.2021 passed in LPA No.902of 2021 as well as the judgment and order passed by the learned SingleJudge dated 06.11.2019 passed in CWP No.27864 of 2017 and CWPNo.17255 of 2018 except the costs imposed by the learned Single Judgeare hereby quashed and set aside. However, the costs imposed by thelearned Single Judge is hereby maintained. The State Government andthe Haryana Public Service Commission are hereby directed to issueappointment order to the appellant on the post of Assistant Professor(History) for which he is found to be eligible and meritorious. The saidexercise be completed within a period of two weeks from today.However,it is observed that on the principle of ‘No Work No Pay’, the appellantshall not be entitled to any back wages but shall be entitled to continuityin service for the purpose of seniority, pay fixation etc.

It is further observed and directed that as observed hereinabovewhile appointing the appellant pursuant to the present order, therespondent No.4 be not disturbed and he be continued in service and hebe accommodated on any other post of Assistant Professor (History),which is reported to be vacant.

Present appeal is accordingly allowed. Pending application(s), ifany, also stand disposed of. No costs.

Devika Gujral

Appeal allowed.

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