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Judgment
Nidhi Gupta, J.
Present Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed by the petitioner for the issuance of an appropriate writ, order or direction, in the nature of Certiorari quashing the impugned order dated 19.02.2024 (Annexure P-4) passed by the respondent no. 2, to the extent of refusal of the respondent no. 2 to consider the period of the retrospective appointment of the petitioners towards their promotion inspite of passing of specific directions by the Ld. Single Bench of this Court in order dated 16.12.2023 (Annexure P-2) passed in CWP-14591-2023 titled as Amit Kumar and others Vs State of Haryana and others; AND/OR further issue a writ in the nature of Mandamus directing the respondent no. 2 consider the petitioners entitled for promotion by counting their period of retrospective appointment as and when less meritorious candidates of the same selection are considered for promotion for the post of Assistant in the Board.
At the very outset, learned counsel for the petitioners prays that he may be permitted to withdraw the present Writ Petition qua petitioners No.2 to 4 with liberty to challenge the similar orders such as the present impugned order dated 19.2.2024, passed by the respondents in their cases, if any. Permitted to do so. Dismissed as withdrawn qua petitioners No.2 to 4.
Brief sequence of events in chronological order is as follows:– 20.06.2019: Haryana Staff Selection Commission (hereinafter referred to as ‘HSSC’) had issued an Advt. No.5/2019 dated 20.06.2019 for selection and appointment of Clerks in different Departments/Boards/ Corporations in the State of Haryana. Petitioner No.1/referred to hereinafter as ‘petitioner’, had applied for the post of Clerk. 03.09.2020: Result was declared on 03.09.2020. In this Result, the petitioner could not secure place in the list of selected candidates. 13.08.2021: Some candidates who were out of selection zone, had filed CWP-15672-2021 on 30.08.2021 for revision of the Result. 25.04.2022: Vide order dated 25.04.2022 passed in CWP-15672-2021, this Court had quashed the Result dated 03.09.2020 and had further directed HSSC to redo the entire exercise. 23.06.2022: Consequentially, the Result was revised on 23.06.2022 and some new candidates were included in the zone of consideration and some of the already selected candidates were ousted from the list of selected candidates. In this result, the petitioner secured selection on the basis of merit. Accordingly, name of the petitioner was recommended for fresh appointment in the respondent-Department. Aggrieved of the ‘fresh’ appointment, petitioner, alongwith other similarly situated Clerks filed CWP-22213-2023 titled as Kuldeep and others vs. State of Haryana and others praying therein for giving them retrospective appointment from the date of original selection and all applicable service benefits of increments, seniority, promotion, ACP et cetera from the date when their less meritorious counterparts of the same Advertisement had been given appointment in the Welfare Board. 04.10.2023: The above said CWP-22213-2023 was disposed of by this Court vide order dated 04.10.2023 (Annexure P-1) “with liberty to the petitioners to file appropriate claim before the authorities concerned at this stage.” 16.10.2023: Accordingly, petitioner had submitted his representation dated 16.10.2023 before the respondents; which the respondents had failed to decide within the stipulated time of 8 weeks. 16.12.2023: In the meantime, another CWP-14591-2023 titled as Amit Kumar and others vs. State of Haryana and others, filed on 11.07.2023 by similarly situated freshly selected Clerks for grant of retrospective appointment and applicable notional service benefits towards increment, seniority, promotion, ACP et cetera was allowed vide order dated 16.12.2023 (Annexure P-2). Aggrieved by the fact that respondents had failed to decide Representation dated 16.10.2023, petitioner alongwith other similarly situated Clerks had filed CWP-569-2024 titled as Kuldeep and others vs. State of Haryana and others praying for grant of retrospective appointment and applicable service benefits et cetera as granted to similarly situated Clerks vide order dated 16.12.2023 passed in CWP-14591-2023. 11.01.2024: Vide order dated 11.01.2024 (Annexure P-3), Single Judge of this Court had disposed of the above said CWP-569-2024 directing the respondents to decide claim of the petitioners within 8 weeks in same terms as CWP-14591-2023 (Annexure P-2). 19.02.2024: Vide impugned order dated 19.02.2024 (Annexure P-4), respondent No.2 has refused to consider period of retrospective appointment of the petitioner towards promotion.
Hence, the present Writ Petition.
Learned counsel for the petitioner submits that respondent No.2 while deciding claim of the petitioner vide impugned order dated 19.02.2024 (Annexure P-4) has misinterpreted the above order dated 16.12.2023 (Annexure P-2), and has refused to consider period of retrospective appointment of the petitioner towards promotion despite the fact that in para 11 of the order dated 16.12.2023, it had been clearly held that period of retrospective appointment shall also be considered for giving notional benefits of increment and seniority.
Learned counsel submits that while passing the impugned order, respondent No.2 has gravely erred in ignoring the above said directions. It is argued that the respondent No.2 has failed to understand that once the Ld. Single bench has directed to consider the period of retrospective appointment towards seniority, then it is automatically inherent in the directions that it shall be counted towards giving promotion to the effected employee without which the relief of granting benefit of seniority shall be of no practical use. Therefore, the decision of respondent no. 2 for not considering the period of retrospective appointment towards the promotion of the petitioners is violative of Articles 14 & 16 of the Constitution of India and deserve to be quashed, in the interest of justice. The petitioners and the other similarly situated clerks have been given retrospective appointments from the date when less meritorious re-selected clerks have been given appointments. It is submitted that the impugned order is causing prejudice to the petitioners and the petitioners can not be made to suffer in respect of their entitlement for promotion, for the mistake of HSSC.
It is further submitted that in case of the petitioners and other freshly selected clerks they have already served, in their respective departments on the feeder post of clerk for nearly 2 years and they are already having relevant and sufficient experience of working on the promotional post of Assistant and the feeder post of the clerk. In many promotion cases finalized by various departments, the candidates have been given relaxation of required experience of 3 years and have been promoted as Assistant after giving such relaxation. Therefore, the reasoning given by the respondent no. 2 for denying the consideration of period of retrospective appointment towards promotional right of the petitioners is unjustified and also against the letter and spirit of the relief granted by this Court in Amit Kumar (Supra) case.
It is accordingly prayed that impugned order dated 19.02.2024 (Annexure P-4) passed by respondent No.2 qua the petitioner be set aside and present Writ Petition be allowed in terms of order dated 16.12.2023 passed in CWP-14591-2023.
Per contra, learned State Counsel has vehemently opposed submissions advanced on behalf of the petitioner and argued that claim of petitioners No.2 to 4 have been decided vide separate speaking orders in their individual cases upon submitting separate representations by them. It is pointed out that speaking orders passed in respect of petitioners No.2 to 4 have not been challenged in the present case. It is further pointed out that petitioner No.3 has never submitted any representation till date.
Learned State counsel has further submitted that the names of the petitioners were not included in the list of selected candidates in the unrevised original Result but in the revised Result dated 23.06.2022, they secured selection on the basis of their merit in the recruitment test. Consequent upon receipt of recommendations from the HSSC for appointment of the petitioners, they have been given appointments vide separate appointment letters on the posts of Clerk and they joined as such in July 2022. It is contended that petitioners are not entitled to retrospective appointment. She accordingly prays for dismissal of the present Writ Petition.
No other argument has been raised on behalf of learned counsel for the parties. I have heard learned counsel and perused the case file in detail. I find merit in the submissions of the petitioner.
It is not disputed that petitioner was not declared successful in the Result dated 03.09.2020 as there was a discrepancy in the Answer Key. Vide order dated 25.04.2022 passed by this Court in CWP-15672-2021, it was directed that revised Result be published. Pursuant thereto, the revised Result came to be published on 23.06.2022 in which the petitioner was declared successful. There is merit to the contention on behalf of the petitioner that petitioner cannot be made to suffer for a mistake on the part of the respondents. As such, petitioner is liable to be granted retrospective appointment on notional basis qua only the financial benefits. There is no reason made out as to why petitioner should be made to suffer with respect to service benefits such as increments, seniority, promotion, ACP et cetera.
This is especially so as the entire issue already stands considered by a coordinate Bench of this Court and in case of persons similarly situated as the present petitioner, retrospective appointment has been granted. It is not disputed by learned counsel for the State that Clerks who were similarly situated as the petitioner had approached this Court by way of CWP-14591-2023; which came to be allowed by Coordinate Bench vide order dated 16.12.2023 (Annexure P-2) in the following terms: -
“11.The present petitions are allowed. The respondents are directed to grant the petitioners the appointment from the date when the candidates lower in merit have been granted appointment. The petitioners will also be entitled for the increment as well as seniority from the date when the candidates lower in merit were granted the said benefit, however, no financial benefit will be admissible to the petitioners on account of retrospective appointment as undertaken by the petitioner before this Court. The same will be granted notionally only.
12.Let the present order be complied with within a period of two months from the date of the receipt of the copy of the order.
13.At this stage, learned counsel submits that the petitioners intend to approach the Civil Court to raise the claim for compensation for their wrongful denial of appointment at the initial stage. For this, no liberty is needed. In case the petitioners feel aggrieved against any action of the respondents they are within their rights to agitate their claim in case the same will be admissible to them under law.”
No cogent or viable reason has been given by the learned State Counsel as to why the same relief is not admissible to the present petitioner. Accordingly, the present Writ Petition stands allowed qua petitioner No.1 herein in the same terms as the order dated 16.12.2023 passed in CWP-14591-2023; whereas the present Writ Petition stands dismissed as withdrawn qua petitioners No. 2 to 4 with liberty to the said petitioners to challenge their respective order(s) similar to the present impugned order dated 19.02.2024 (Annexure P-4) passed by the respondents in their cases, if any.
Pending application(s) if any also stand(s) disposed of.