RAVINDER KUMARversusSTATE OF HARYANA AND ORS.

                         [2010] 5 S.C.R. 116


A                        RAVINDER KUMAR
                                   v.
                  STATE OF HARYANA AND ORS.
                   (Civil Appeal No. 3127 of 2008)
                           APRIL 22, 2010
B
                [D.K. JAIN AND T.S. THAKUR, JJ.]

          Service Law - Selection - Haryana Police - Post of
    Constable - Vacancies in general category as well as
C   reserved categories - Reserved      •      category for ex-
    servicemen(ESM) comprising of three distinct sub categories,
    ESM (General Category), ESM BC(A) and ESM BC(B)
    category - Appointment of appellant in ESM BC{B) category
    - Quashed by Court - Termination - Challenge to -
o   Respondents directed by Court to consider the case of
    appellant in general category - Case of appellant considered
    but he was declined appointment in that category - Writ
    petition filed by appellant - Dismissed by High Court - On
    appeal, held: The two candidates selected in ESM BC(B)
E   category ahead of the appellant ought to have been selected
    against vacancies in ESM (General) category as per their
    merit since they scored more marks than the last two
    candidates in the ESM (general) category - The Select List
    thus was required to be recast and candidates suitably shifted
F   from reserved category to general category in which event
    appointments could be offered to other candidates in ESM
    BC(B} category such as appellant depending on their merit
    - However such exercise at this distant point of time could
    unsettle the settled position - In interest of justice, direction
G   given for fresh appointment of appellant against any vacancy
,   in ESM (General Category) or ESM BC (BJ category, and if
    no vacancy available in the said two categories, for fresh
    appointment against any vacancy in General category - Such
    appointment, however, would not entitle appellant to any back

H                                 116
  RAVINDER KUMAR v. STATE OF HARYANA AND               117
                   ORS.
wages, seniority or any other benefit based on his earlier    A
appointment.

     Selection process was initiated to fill up available
posts of Constables in the Haryana Police. Apart from
vacancies in the General category there were vacancies        B
in the reserved categories also, including the reserved
category for ex-servicemen, which in turn was divided
into three distinct sub categories, namely, ESM (General
Category), ESM BC(A) and ESM BC(B) category.

    Appellant, a candidate in the reserved category of        C
ESM/BC(B), was eventually placed at Sr.No.3 in the ESM/
BC(B) category. An appointment order was issued in his
favour pursuant whereto he joined the Police Department.

    An unsuccessful candidate in ESM/BC(B) category           o
challenged the appointment of appellant before the High
Court contending that he had a preferential right to
appointment in the ESM/BC(B) category on account of his
being an ex-serviceman in comparison to appellant, who
being a dependent of an ex-serviceman, stood a chance         E
only if no ex-serviceman was available for appointment.
The High Court quashed the appointment of the appellant
with a direction that the claim of ex-servicemen
candidates would have priority over those who are
dependents of such ex-servicemen. Consequent upon
                                                              F
the said direction, the services of the appellant were
terminated.

    Appellant challenged the termination order before the
High Court which directed the respondents to consider
the case of the appellant in the general category. In         G
compliance with the above direction the Superintendent
of Police considered the case of the appellant but
declined him appointment in that category.

    The appellant filed writ petition before the High Court   H
   118      SUPREME COURT REPORTS                [2010] 5 S.C.R.


A praying for issue of writ of certiorari quashing the order
  passed by the Superintendent of Police as also a
  mandamus directing the respondents to supply a
  complete list of selected candidates in respect of all the
  categories. The High court dismissed the petition holding
B that since the marks scored by the appellant were less
  than the marks awarded to the last candidate in the
  general category, he could make no grievance against
  his non-selection in that category.

       Before this Court, the appellant contended that the
C denial of appointment to him was discriminatory, wholly
  unjustified and arbitrary. He contended that the High.
  Court had failed to notice certain important aspects that
  render the order unsustainable, in particular the fact that
  two of the candidates selected in the reserved category
D having scored marks that were higher than those scored
  by the last candidate selected in the general category, the
  said candidates ought to have been selected against
  vacancies in the general merit category, and that if that
  were done, the appellant could be appointed against one
E of the said vacancies.

         Partly allowing the appeal, the Court

       HELD: 1.1. It is evident from the records that in ex-
F servicemen (general category) the last two candidates
  had scored only 25 marks each and the two candidates
  selected in Ex-servicemen BC(B) category ahead of the
  appellant, scored more marks than them, and thus could
  and indeed ought to have been selected against the
  vacancies in Ex-servicemen (General) category as per
G their merit. This in other words would require the Select
  List to be recast and candidates suitably shifted from the
  reserved category to the general category in which event
  appointments can be offered to other candidates in the
  Ex-servicemen BC(B) category depending on their merit.
H Such an exercise long after the selection process was
  RAVINDER KUMAR v. STATE OF HARYANA AND                  119
                   ORS.
completed may unsettle the settled position and lead to A
removal of candidates who stand already selected and
who have been serving for a long time after undergoing
the pMscribed training. This may also mean that
candidates who have accepted the result of the selection
and may even have become over-age may have to be B
brought in. There is no compelling reason for this Court'
to adopt that course at this distant point of time especially
when the same would upset what stands settled for a
long time. [Para 9] (125-C-G]

     1.2. Interest of justice would be sufficiently served, if   C
the appellant is appointed as a Constable in the Haryana
Armed Police against any vacancy in the Ex-Serviceme'n
(General Category) or ESM/BC (B) category. If no vacancy
in the said two categories is available the appellant shall
be appointed against any vacancy in the General                  D
category. The appointment shall for all intents and
purpose be a fresh appointment which would not entitle
the appellant to any back wages, seniority or any other
benefit based on his earlier appointment. (Paras 9, 1O]
(125-G-H; 126-A-C]                                               E

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3127 of 2008.

     From the Judgment & Order dated 23.1.2007 of the High
Court of Punjab & Haryana at Chandigarh in CWP No. 1061
                                                                 F
of 2007.

   · P.S. Patwalia, Aman Preet Singh Rahi, Ajay Singh, Ashok
K. Mahajan for the Appellant.
                                                                 G
    Manjit Singh, ASG, Kamal Mohan Gupta for the
Respondents.

    The Jucjgment of the Court was delivered by

    T.S. THAKUR, J. 1. rhis appeal arises out of an order        H
    120     SUPREME COURT REPORTS                 [2010] 5 S.C.R.


A passed by the High Court of Punjab & Haryana, whereby Writ
  Petition No.1061 of 2007 filed by the appellant has been
  dismissed and the appellant's claim for appointment as a
  Constable in the Haryana Police Department turned down. The
  High Court has taken the view that since the marks scored by
B the appellant were less than the marks awarded to the last
  candidate in the general category, he could make no grievance
  against his non-selection in that category. The appellant assails
  that view primarily on the ground that the High Court has failed
  to notice certain important aspects that render the order
c unsustainable, in particular the fact that two of the candidates
  selected in the reserved category having scored marks that
  were higher than those scored by the last candidate selected
  in the general category, the said candidates ought to have been
  selected against vacancies in the general merit category. If that
D were done, the appellant could be appointed against one of the
  said vacancies. The factual matrix giving rise to the controversy
  need be summarized at this stage:
       2. A selection process to fill up 100 available posts of
  Constables in Haryana Police in the District of Sirsa, State of
E Haryana was undertaken in which the appellant was also a
  candidate for appointment against one of the vacancies in the
  reserved category of ESM/BC(B) for ex-servicemen and their
  dependents. The appellant was put through physical efficiency
  and other tests and eventually placed at Sr. No.3 in the ESM/
F BC(B) category. An appointment order was also issued in his
  favour pursuant whereto he joined the Police Department on
  17th August 2001 and was allotted Constabulary No.2/873 in
  the 2nd Battalion of the Haryana Armed Force.
       3. One, Naresh Kumar who had also applied for selection
G in ESM/BC(B) category and whose name did not figure in the
  select list filed Civil Writ Petition No.13130 of 2001 in the High
  Court of Punjab & Haryana challenging the appointment of the
  appellant mainly on the ground that the said petitioner had a
  preferential right to an appointment in the ESM/BC (B) category
H on account of his being an ex-serviceman in comparison to the
  RAVINDER KUMAR v. STATE OF HARYANA AND                    121
            ORS. [T.S. THAKUR, J.]
appellant who being a dependent of an ex-serviceman would          A
stand a chance only if no ex-serviceman was available for
appointment. The appellant had in the meantime completed the
Basic Training Course of nine months duration, passed out in
May 2002 and started discharging the duties attached to the
post to which he was appointed. The High Court, all the same,      B
allowed the writ petition filed by Naresh Kumar and by its order
dated 10th July 2002 quashed the appointment of the appellant
with a direction that the claim of ex-servicemen candidates
would have priority over those who are dependents of such ex-
servicemen. Consequent upon the said direction, the services       c
of the appellant were terminated in terms of an order dated 31st
December 2002, the correctness whereof was questioned by
the appellant in CWP No.16287 of 2003. The said petition was
eventually dismissed as withdrawn with liberty to the appellant
                   •'
to file a review petition against the order of the High Court in   D
CWP No.13130 of 2001. A review petition was accordingly filed
by the appellant which was disposed of by the High Court by
an order dated 10th March 2006 directing the respondents to
re-consider the case of the appellant in the general category.
Order dated 10th July 2002 passed by the High Court in CWP
                                                                   E
No.13130 of 2001 was to that extent modified.

     4. It was in compliance with the above direction that the
Superintendent of Police, Sirsa passed an order on 26th May
2006 declining an appointment to the appellant as a Constable.
The order stated that out of eight candidates in BC(B) category    F
the last candidate selected for appointment had scored 27
marks as against 26 marks awarded to the appellant. The order
further stated that out of 45 candidates selected in the General
category the last candidate selected for appointment had
scored 27 marks. Since the appellant fell below the last           G
candidate appointed in the General category he was disentitled
to the appointment prayed for by him.

   5. The appellant's case is that the order passed by the
Superintendent of Police did not disclose the marks obtained
                                                                   H
    122      SUPREME COURT REPORTS                   [2010) 5 S.C.R.


A by BC(B) category candidates selected against the eight posts
   reserved in that category. An application seeking the requisite
   information and copies of the select list was accordingly filed
   under the Right to Information Act, but was declined by the State
  Information Commission on the ground that the Haryana Armed
B Police was exempt from the purview of the RTI Act. It was in
  tha 1 backdrop that the appellant filed CWP No,1061/2007
  before the High Court praying not only for the issue of a writ of
  certiorari quashing the order dated 26th May 2006 passed by
  the Superintendent of Police but also a mandamus directing
c the respondents to supply a complete list of selected candidates
   in respect of all the categories. By its order dated 23rd January
  2007 impugned in this appeal, the High court has dismis;sed
  the said petition primarily on the ground that the last candidate
  selected both in the BC(B) category and in the General category
  having scored (27 marks each as against 26 marks awarded
0
  to the appellant, he was not qualified for appointment in eith~r
  of the said two categories. The appellant assails the
  correctness of the said order, as already noticed above.

       6. Mr. P.S. Patwalia, learned senior counsel appearing for
E the appellant strenuously argued that the denial of appointment
  to the appellant is discriminatory, wholly unjustified and arbitrary.
  He urged that according to the select list enclosed with the
  affidavit filed on behalf of respondent No.1 - the State, 45
  candidates were selected in the General Category, 14 in BC(A)
F category and eight in BC(B) category, apart from candidates
  selected in SC 'A' and SC 'B' categories. Insofar as ex-
  servicemen category was concerned, the Select List reveals
  that there were eight vacancies available for ex-servicemen in
  the General category, while two vacancies were earmarked for
G ex-servicemen BC(A) category and three vacancies for ex-
  servicemen BC(B) category. It was argued by Mr. Patwalia and
  in our opinion rightly so that if an ex-serviceman candidate
  scored high enough marks entitling him to be selected in the
  ex-serviceman (General Category) such candidates ought to be
  selected in the said category instead of selecting them in the
  RAVINDER KUMAR v. STATE OF HARYANA AND                  123
            ORS. [T.S. THAKUR, J.]
Ex-servicemen BC(A) or BC(B) categories. Mr. Patwalia             A
argued that in BC(A) category, two candidates, namely, Rajbir
Singh and Ranjeet Singh had been selected who had scored
29 and 28 marks. respectively. Similarly in BC(B) category,
Sube Singh, Veer Bhan and the appe.flant Ravinder Kumar had
been initially selected each one of whom had scored 26 marks.     B
With the High Court directing appointment of ex-servicemen
before any dependent of any ex-serviceman could be
appointed the appellant had to vacate to make room for Naresh
Kumar, who was an ex-serviceman in BC(B) category. Even
so two vacancies out of eight reserved for in the Ex-Servicemen   c
(General category) had gone to Subhash Chander and Taket
Singh both of them had scored 25 marks each. This implied
that if candidates selected in Ex-Servicemen BC(B) categories
were shifted to the Ex-Servicemen (General category) both
Sube Singh and Veer Bhan would have moved to the General          D
category, making room for the appellant to take an appointment
in the BC(B) category. Inasmuch as the respondents had
ignored.the principle underlying the selection of candidates in
reserved categories even when such candidates had scored
better marks than the candidates selected in the open category,   E
the respondents had committed a mistake which deserved to
be corrected. The order passed by the Superintendent of
Police did not, according to the learned counsel, take note of
these aspects and adopted an approach which was legally
unsound. It was also argued by Mr. Patwalia that the appellant
had undergone training and even started serving the Police        F
Department before he was asked to vacate the post which was
then allotted to Naresh Kumar. This, according to the learned
counsel, had happened despite the fact that the appellant was
nowhere at fault. He had on the contrary changed his position
to his detriment by undergoing an arduous training apart from     G
losing opportunities to seek employment elsewhere.

    7. On behalf of the respondents, it was argued by Mr.
Manjit Singh, learned Additional Advocate General that the
appointment of the appellant could be justified only if the       H
    124      SUPREME COURT REPORTS                  [2010] 5 S.C.R.


A   appellant figured higher in the merit list than the last candidate
    in the General category. Inasmuch as the appellant failed to
    satisfy that requirement both in the General category as also
    in general and reserved categories for ex-servicemen he could
    make no grievance against refusal of an appointment to him.
B
         8. VVhen this appeal came up before this Court, Mr.
    Patwalia nade a statement on instructions that if the appellant
    was offered employment as a Constable in the Haryana Police,
    District Sirsa even at this stage he will not claim back wages
    or seniority on the basis of his selection and appointment.
C   Learned counsel for the· State was accordingly directed to take
    instructions whether the appellant could be accommodated
    against a vacant post in the said District. Mr. Manjit Singh, is
    however unable to make any statement pursuant to the above
    direction as according to him the respondents had not suitably
D   responded to his queries nor given to him any instructions in
    the matter one way or the other. He therefore sought further time
    to do the needful. We regret our inability to grant any further
    opportunity having regard to the fact that the matter has
    remained pending in this Court and the Court below for long
E   and two opportunities for the purpose aforementioned have
    already been granted to the respondents. The controversy as
    noticed above primarily revolves around the method adopted
    by the respondents in drawing up the Select List of candidates.
    Apart from the vacancies in the General category there were,
F   as noticed above, vacancies for reserved categories also. The
    reserved category for ex-servicemen was divided into three
    distinct sub categories, namely, Ex-servicemen (General,
    Category), Ex-servicemen BC(A) and Ex-servicemen BC(B)
    category. The names of the candidates and the marks awarded
G   to them in each one of these categories were as under:-
          "EX-SERVICEMEN
          GENERAL CATEGORY
          1.    6003  Durga Dass              27
          2.   6005   Balbir Singh .          27
H         3.   6037  Ved Parkash              26
  RAVINDER KUMAR v. STATE OF HARYANA AND                    125
            ORS. [T.S. THAKUR, J.]
    4.     6007     Ram Sarup        26                            A
    5.     6015     Rajender Parshad 26
    6.     6010     Gurpal Singh     26
    7.     6023     Subhash Chander 25
    8.     6027     Taket Singh      25
                                                                   B
    B.C. 'A'
    1.     6028      Rajbir Singh       29
    2.     6016      Ranjeet Singh      28

    B.C. 'B'                                                       c
    1.     6001     Sube Singh          26
    2.     6035     Veer Bhan           26
    3.     6031     Ravinder            26"
      9. It is evident from the above that in ex-servicemen
(general category) the last two candidates namely: Subhash         D
Chander and Taket Singh had scored only 25 marks each.
Sube Singh and Veer Bhan selected in Ex-servicemen BC(B)
category had however scored more marks than Subhash
Chander ancl Taket Singh. Sube Singh and Veer Bhan could
and indeed ought to have been selected against the vacancies       E
in Ex-servicemen (General) category as per their merit. This in
other words would require the Select List to be recast and
candidates suitably shifted from the reserved category to the
general category in which event appointments can be offered
to other candidates in the Ex-servicemen BC(B) category            F
depending on their merit. Such an exercise long after the
selection process was completed may unsettle the settled
position and lead to removal of candidates who stand already
selected and who have been serving for a long time after
undergoing the prescribed training. This may also mean that        G
candidates who have accepted the result of the selectipn and
may even have become over-age may have to be brought in.
We do not see any compelling reason for us to adopt that
course at this distant point of time especially when the same
would upset what stands settled for a long time. Interest of
justice would in our opinion be sufficiently served if we direct   H
    126     SUPREME COURT REPORTS                  [2010] 5 S.C.R.


A the appointment of the appellant against an Ex-servicemen
  BC(B) vacancy and if no such vacancy is available against ari
  ex-servicemen (General Category) vacancy. In the unlikely event
  of there being no vacancy in either one of these categories the
  appellant could be appointed against any other vacancy in the
B General category. Any such appointment would, however, in
  keeping with the statement by the appellant be effective from
  the date the same is made and shall not entitle the appellant
  to claim any back wages, seniority or other benefits. The
  appointment shall for all purposes be treated as a first
c appointment subject to the condition that the competent
  authority shall be free to direct that the appellant shall undergo
  the training afresh or take a refresher course of such training if
  deemed fit.

       10. In the result, we allow this appeal but only in part and
D to the extent that the appellant shall be appointed as a
  Constable in the Haryana Armed Police, Sirsa District against
  any vacancy in the Ex-Servicemen (General Category) or ESM/
  BC (B) category. If no vacancy in the said two categories is
  available the appellant shall be appointed against any vacancy
E in the General category. The appointment shall for all intents
  and purpose be a fresh appointment which would not entitle the
  appellant to any back wages, seniority or any other benefit
  based on his earlier appointment. The order passed by the High
  Court shall to the above extent, stand modified. No costs.
F
  B.B.B.                                   Appeal partly allowed.