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 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 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 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 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 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 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] [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 the appointments were made and when it is found that the last candidate, who is appointed, i.e., respondent No.4 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 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 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 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 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 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 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 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]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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