Vijender Kumar v. State of Haryana & Ors.

CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Ritender Rathee, Advocate for the petitioner. Mr. Rahul Dev Singh, Addl.A.G., Haryana. Mr. Kanwal Goyal, Advocate and Ms. Sheena Dahiya, Advocate for the respondent-HPSC. HARPREET SINGH BRAR, J. (ORAL)

#1. The present civil writ petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing the impugned order dated 05.03.2024 (Annexure P-8) passed by respondent No.3. Further, for issuance of a writ in the nature of mandamus directing respondent No.3 to consider the candidature of the petitioner for the post of PGT (Political Science) in General Category on his own merit instead of Ex-servicemen (ESM) category in reference to advertisement No.32/2023 along with all consequential benefits including fixation of seniority.

#2. Learned counsel for the petitioner inter alia contends that the petitioner participated in the selection process initiated vide Advertisement No.32/2023 published on 24.06.2023 (Annexure P-1) for the post of PGT CWP-11450-2026 -2- Political Science. A total of 240 posts of PGT Political Science were advertised, out of which 132 posts were earmarked for the General Category and 07 posts were earmarked for the ESM Category. The petitioner retired from the Indian Air Force and applied under the ESM Category on 12.07.2023 as discernible from Annexure P-2. The final result was declared on 16.11.2023. The petitioner secured 56.10 marks and was placed at serial No.4 in the merit list. His name was recommended and he was appointed on 17.01.2024. He joined on 26.01.2024 as discernible from Annexures P-5 and P-6. The Haryana Government issued instructions dated 09.03.2022, wherein, it was provided that a candidate who has secured regular appointment after availing the benefit of ESM reservation cannot avail the benefit of ESM reservation in subsequent appointments as discernible from Annexure P-7. The petitioner requested for change of category from ESM to General which was rejected on the ground that migration of reserved category candidates to the General Category is not applicable in cases of horizontal reservation vide impugned order dated

05.03.2024 (Annexure P-8). Similarly situated candidates, who were selected in the ESM Category, were recommended in the General Category and the marks list shows change of category by respondent No.3. The petitioner also applied for the HCS (Executive Branch) and Allied Services pursuant to Advertisement No.22 of 2026 and sought change of his category from ESM to General in terms of the instructions dated 09.03.2022 (Annexure P-7). Further, similarly situated candidates were allowed change of category to the General Category as discernible from Annexure P-10, whereas, the petitioner has been CWP-11450-2026 -3- discriminated against the same. He further submits that some of the candidates have not joined and some posts are lying vacant.

#3. Per contra, learned counsel for respondent No.3 submits that in terms of the advertisement, the candidates are bound by the conditions of the advertisement and the applicable rules. The petitioner, with open eyes, applied under the ESM Category, participated in the selection process, his name was recommended and he was appointed to the post of PGT Political Science in the ESM Category. The petitioner admittedly joined on 26.01.2024 and his recommendation was made on 16.11.2023 by respondent No.3. As such, in the absence of any stipulation in the advertisement or the applicable rules, the petitioner cannot now turn back and seek change of his category on the ground that some posts are lying vacant. The petitioner has been serving in the Education Department since 26.01.2024 and, as such, there is no statutory provision enabling a candidate, after accepting the appointment, to seek change of his category to the General Category. Moreover, the selection process initiated vide Advertisement No.32/2023 (Annexure P-1) stands concluded. Even thereafter, a subsequent advertisement was issued in 2024 and the vacant posts were carried forward in the subsequent selection process, which also stands concluded. He further relies upon the judgment rendered by the Hon’ble Supreme Court in J&K Public Service Commission Vs. Israr Ahmad and others, 2005 (12) SCC 498.

#4. Having heard learned counsel for the parties and after perusal of the record with their able assistance, it transpires that the petitioner participated CWP-11450-2026 -4- in the selection process initiated vide Advertisement (Annexure P-1) published on 24.06.2023 for 240 posts of PGT Political Science, out of which 07 posts were earmarked for the ESM Category. The petitioner not only participated in the selection process under the ESM Category, but was also selected and appointed on 26.01.2024. Having accepted the appointment and having continuously served for more than two years, the petitioner cannot be permitted to take a U-turn and contend that he should now be considered under the General Category instead of the category under which he had applied and participated. The petitioner cannot be permitted to change his category, especially after the selection process has concluded and he has accepted the appointment.

#5. The issue involved in the present case is no longer res integra. The Hon'ble Supreme Court in J&K Public Service Commission v. Israr Ahmad and others, (2005) 12 SCC 498, while dealing with a similar issue, observed as under:- “6. We have considered the rival contentions advanced by both the parties. The contention of the first respondent cannot be accepted as he has not applied for the selection a candidate entitled to get reservation. He did not produce any certificate along with his application. The fact that he has not availed the benefit for the preliminary examination itself is sufficient to treat him as a candidate not entitled to get reservation. He passed the preliminary examination a general candidate and at the subsequent stage of the main examination he cannot avail the reservation on the ground that he was successful in CWP-11450-2026 -5- getting the required certificate only at a later stage. The nature and status of the candidate who was applying for the selection could only be treated alike and once a candidate has chosen to opt for the category to which he is entitled, he cannot later change the status and make fresh claim. The Division Bench was not correct in holding that as a candidate he had also had the qualification and the production of the certificate at later stage would make him entitled to seek reservation. Therefore, we set aside the judgment of the Division Bench and allow the appeal.”

#6. In view of the discussion above, the present civil writ petition, being devoid of any merit, is hereby dismissed.

20.07.2026 Neha (HARPREET SINGH BRAR) JUDGE Whether speaking/reasoned Whether reportable : : Yes/No Yes/No