Civil Writ Petition No.9659 of 2007 :1 :
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: November 03, 2009
Mandeep Sharma
...Petitioner
VERSUS
The State of Haryana & others
...Respondents
CORAM: HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.B.K.Bagri, Advocate,
for the petitioner.
Mr.Harish Rathee, Sr.DAG, Haryana,
for respondent Nos.1 to 3.
Mr.Azad Singh, Advocate,
for Mr.Randhir Sehrawat, Advocate,
for respondent No.5.
*****
RANJIT SINGH, J.
Some posts for Peon were advertised on 4.11.2004
through an advertisement issued in Newspaper “Dainik Jagran”. The
petitioner applied for being appointed as Peon as he was fully
qualified. Interviews for the post were held on 4.12.2004 in the office
Civil Writ Petition No.9659 of 2007 :2 :
of District Attorney, Yamuna Nagar. The selection list of the
candidates was accordingly prepared. The petitioner claims to have
been placed in merit over Gurmail Singh son of Sakru Ram and
another candidate Sarwan Kumar son of Sona Ram. The petitioner
was issued appointment letter on 8.12.2004.
Before appointment, he appeared before Civil Surgeon,
Jind on 13.12.2004 for medical examination as first entry into the
Government service. The medical certificate was accordingly issued
to the petitioner on 13.12.2004. Though the petitioner claims that he
had submitted his medical certificate on 13.12.2004, but in the reply,
it is stated that the petitioner’s certificate was received on
17.12.2004. Reply also shows that the medical fitness certificate of
Sarwan Kumar was received on 17.12.2004 and the appointment
letter was statedly issued to him on the same date. Gurmail Singh’s
medical examination letter was received on 8.12.2004 and he was
also accordingly given the appointment. The petitioner was not
appointed on the ground that by the time his medical certificate was
received, the general election for the State Assembly was
announced by the Election Commission and the model code of
conduct was imposed. After the election process, the proposal for
issuance of appointment letter to the petitioner along with other
candidates from other districts was put up on 25.7.2005, but the
appointment letter still could not be issued to the petitioner by
Director of Prosecution, Haryana, Panchkula. The blame is thereafter
fastened on to the petitioner by saying that he made no efforts to
seek appointment from the department after the election process was
over till the time he made first effort by serving a legal notice on the
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respondents on 18.10.2006. Thus, the petitioner has been denied
appointment after due selection on the ground that he could not be
offered appointment in view of model code of conduct having taken
effect.
Would this be a valid ground to deny appointment to the
petitioner, who is duly selected much before the election process or
the elections were announced?. Mr.Rathee is very fair in stating that
this court has already viewed that the model code of conduct could
not be pressed into service to deny appointment to an individual.
Reference can here be made to Rachna and others Vs. State of
Haryana, 2007(3) RSJ 93, wherein after making reference to two
others Division Bench judgments in CWP No.833 of 2005 titled
Sarita Vs. State of Haryana, decided on 21.1.2005 and CWP
No.1621 of 2005, titled Renuka Wadhwa Vs. State of Haryana and
others, decided on 14.2.2005, it is observed that the Election Model
Code of Conduct could not stand as embargo with respect to the
appointment of the persons, who have been duly selected by the
Commission. Even otherwise, model code of conduct may not have a
statutory force as such. It is a code which is formulated to be
followed by conclave of the political parties upon agreement. The
selection process, which was initiated much prior to the issuance of
election process and was finalised much before the announcement of
the elections, bringing in force the model code of conduct would have
no effect on the selection so made.
There is obviously some delay on the part of the petitioner
to make the approach for seeking appointment. Obligation was of the
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respondents to call the petitioner once he had submitted his joining
report to either deny him or to appoint him. The petitioner may have
been waiting for a call. Merely because he has delayed in
approaching the respondents would not be a ground to defeat his
right which has accrued to him after his selection. Delay on his part
to seek enforcement of his right cannot be a ground to deny him his
right altogether. The persons, who were less meritorious than the
petitioner, were appointed but the petitioner was denied this
appointment only because of delay in receipt of the medical
examination of the petitioner. To deny appointment to the petitioner
under such circumstances as urged by the respondents would be
highly unfair and unjust.
Accordingly, the prayer made by the petitioner is
accepted. The writ petition is allowed. The directions are issued to
the respondents to offer appointment to the petitioner, especially so
when in the additional affidavit now filed by the respondents, it is
clearly disclosed that they have kept one post of Peon reserved in
the department in view of the pendency of the writ petition. This is
done to ensure that the necessary action can be taken as per the
directions issued by this court. Let the petitioner be offered
appointment against this vacancy if he is considered otherwise
eligible for appointment on the date of selection. Keeping in view the
delay on the part of the petitioner to make this approach for
appointment, it would be fair to balance the equity and to allow him
back wages from the period from October 2006, when he issued a
legal notice to the respondents for the first time. Petitioner, however,
will be assigned seniority from the date candidates less meritorious
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were appointed. He will get the continuity of service from the said
date, but will get back wages from November first, 2006. Let the
necessary exercise be completed within a period of two months from
the date of receipt of copy of this order.
November 03, 2009 ( RANJIT SINGH ) ramesh JUDGE