NARENDER SINGHversusTHE STATE OF HARYANA & ORS.

                        [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 who
was JBT Teacher in Education Department applied for the said post
– As per advertisement, candidate was required to submit NOC from
its appointing authority, at the time of interview – He applied for
issuance of NOC from the authority – He successfully appeared in
written examination – At the time of interview, he had to submit the
NOC – Appellant sent reminders to the authority but he was not
issued NOC – He filed writ petition – By way of interim order, High
Court directed to allow him to appear in interview – He was
provisionally interviewed and his result was kept in sealed cover –
Meanwhile, when matter came up for hearing in High Court, the
sealed cover was opened and it was found that appellant had
obtained marks higher than the last candidate selected – Thereafter,
result of final selection was declared – PSC did not appoint him in
absence of NOC – Prior to the appointment orders, appellant
received NOC from the authority and submitted with the PSC –
Despite that he was not appointed – High Court dismissed writ
petition filed by him – On appeal, held: 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 was found that the appellant was a more meritorious candidate
than the last candidate appointed, to deny appellant the appointment
was not justifiable at all – He cannot be punished for no fault of
him – As regards respondent no.4, he was appointed after following
due procedure of selection – There was no fault on part of respondent
no.4 when he was appointed and thereafter, he continued in service
for three years – Therefore, it would not be justifiable, to disturb

                                311
312            SUPREME COURT REPORTS                       [2022] 1 S.C.R.


A     him at this stage – In the peculiar facts and circumstances of the
      case, in exercise of the powers under Art.142 of the Constitution of
      India, to do substantial justice, it is directed that while appointing
      the appellant on the post of Assistant Professor, respondent No.4
      may not be disturbed – The State Government is directed to continue
      respondent No.4 and he be accommodated on any other vacant
B
      post of Assistant Professor – Constitution of India – Art.142.
            Allowing the appeal, the Court
            HELD: 1.1 It is not in dispute that pursuant to the interim
      order dated 07.12.2017, the appellant was interviewed
C     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 respect of
      the interviews conducted from 12 th to 14th December, 2017 on
D     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 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
E     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
F     and that too after the intervention of the High Court. Even the
      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 Single Judge also imposed the cost of
      Rs.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 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
H     the appointments were made and when it is found that the last
      NARENDER SINGH v. THE STATE OF HARYANA & ORS.                       313


candidate, who is appointed, i.e., respondent No.4 is having less         A
marks than the appellant and thus 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 Single
Judge as well as the Division Bench of the High Court committed
                                                                          B
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. [Para 7.3][319-F-H; 320-A-B]
      2. It cannot be disputed that respondent no. 4 was working
as the Assistant Professor (History) for more than three years. It        C
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 was appointed after following due procedure of selection.
He is a Ph.D. and is around 40 years of age. After the impugned
selection, there was a fresh selection, however, the respondent           D
No.4 did not apply as he was already selected and appointed on
15.12.2017. If the appointment of respondent No.4 is cancelled
and he 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   E
that there are in all around 244 sanctioned posts for Assistant
Professor (History) and there is still requirement of 93.
Considering the peculiar facts and circumstances of the case to
disturb respondent No.4 at this stage, would not be justifiable.
Therefore, in exercise of the powers under Article 142 of the             F
Constitution of India, to do the substantial justice, it is directed
that while appointing the appellant on the post of Assistant
Professor (History), respondent No.4 may not be disturbed and
the State Government is directed to continue respondent No.4
and he be accommodated on any other vacant post of Assistant
Professor (History). The impugned judgment and order passed               G
by the Division Bench of the High Court as well as the judgment
and order passed by the Single Judge dated except the costs
imposed by the Single Judge are hereby quashed and set aside.
[Paras 7.4, 8][320-B-H; 321-A-C]
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314              SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 321 of
      2022.
            From the Judgment and Order dated 28.09.2021 of the High Court
      of Punjab and Haryana at Chandigarh in LPA No.902 of 2021.
           Narender Hooda, Sr. Adv., Paulami Sen, Dr. Surender Singh
B     Hooda, Advs. for the Appellant.
            Ms. Alka Agarwal, AAG, Dr. Monika Gusain, D. S. Chauhan,
      Ms. Ruchi Singh, Prashant Kumar, Rahul Kaushik, Ms. Bhuvneshwari
      Pathak, Advs. for the Respondents.

C             The Judgment of the Court was delivered by
              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
D     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
      Education Department, Haryana in the year 2000 and since then he is
E     working as a JBT Teacher at Government PrimarySchool, Chhapar,
      Haryana. That the Haryana Public Service Commissionadvertised 1647
      posts of Assistant Professor (College Cadre) in the State of Haryana
      on16.02.2016. Last date to submit the form online was 15.03.2016, which
      was extended upto 10.05.2016. The appellant herein applied timely for
F     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.
G            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
H
      NARENDER SINGH v. THE STATE OF HARYANA & ORS.                             315
                    [M. R. SHAH, J.]

the written examination for the aforesaid post on 05.03.2017. The result        A
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
                                                                                B
on 09.11.2017 but no action was taken by the concerned branch on his
reminder. Therefore, the appellant filed 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            C
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
                                                                                D
of consideration for being called for an interview for the post in question,
shall be provisionally interviewed, regardless of the fact that an NOC
hasnot 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            E
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               F
behalf of the Public Service Commission produced the result of the
appellant in a sealedcover, which was opened and it was 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,   G
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                 H
316             SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A     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
B
      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
C     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 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.,
D     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 thejurisdiction of the Court only after the declaration of
      the result of the written test on 09.11.2017 and thereafter also waited till
E     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,
F     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
G     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. However, the learned Single
      Judge refused to pass any order of appointment in favour of the original
      writ petitioner.
H
      NARENDER SINGH v. THE STATE OF HARYANA & ORS.                            317
                    [M. R. SHAH, J.]

       2.4 Feeling aggrieved and dissatisfied with the judgment and order      A
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       B
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.
                                                                               C
       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        D
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
before the Public Service Commission on 08.06.2018, i.e., much before          E
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
                                                                               F
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             G
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.                                                                        H
318            SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A            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
B     respondent No.1 – State of Haryana. It is submitted that an inquiry has
      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
C     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
D     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.

E            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
F     from his employer, which in the present case is District Elementary
      Education Officer, at the time of interview. The appellant applied for
      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
G     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
H
      NARENDER SINGH v. THE STATE OF HARYANA & ORS.                           319
                    [M. R. SHAH, J.]

before the High Court being CWP No.27864 of 2017 on 05.12.2017 for            A
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,
                                                                              B
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   C
07.12.2017, the appellant was provisionally interviewed, the Public Service
Commission declared the result of final selection in respect of the
interviews conducted from 12th 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 –              D
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         E
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     F
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               G
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 the appellant is a more meritorious candidate than the last candidate
appointed, i.e., respondent No.4, to deny him the appointment is not
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320             SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A     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.
B
              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
C     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
D     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.G17/2017 and the last date for submitting the
      application was 15.03.2019. It is also reported that by now he has also
E     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
F     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).
G            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
H
       NARENDER SINGH v. THE STATE OF HARYANA & ORS.                           321
                     [M. R. SHAH, J.]

of the Constitution of India, to do the substantial justice, we direct that    A
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).
                                                                               B
        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          C
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       D
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         E
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.
       Present appeal is accordingly allowed. Pending application(s), if       F
any, also stand disposed of. No costs.


Devika Gujral                                                Appeal allowed.


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