EHC Krishan Kumar and others v. State of Haryana and others

have completed 5 years of service on the first day of January of the year in which selection is made.” In view of the above amendment, 55% seats allotted to a Unit in the Lower School Course are to be filled in on the basis of the competitive examination, 35% on the basis of seniority-cum-fitness and 10% on the basis of consistent outstanding performance in Sports. Sub Rule 2 (i) further provides that all constables irrespective of their educational qualifications shall be eligible to appear in B-1 test, if they are under the age of 35 years and have completed 5 years of service on the 1st day of January of the year in which selection is made. Sub Rule 2 (ii) further provides that all constables irrespective of their educational qualifications shall be eligible to brought on the list of B- 1 test on seniority-cum-merit basis if they are under the age of 40 years and have completed 5 years of service on the first day of January of the year in which selection is made. All the petitioners claimed their consideration/selection against 35% quota prescribed under Rule 13.7 of the Rules and are in category 13.7 (2) (ii). Their claims have been rejected on the ground that they failed to achieve the minimum merit on consideration against CWP No.1368 of 2010 : 5 : 55 per cent quota. It is the common case of the parties that this rule came up for consideration before this Court in the case of Naresh Kumar Vs. State of Haryana and others, (CWPNo.7952 of 2004) decided on 05.11.2004. In the aforesaid case, on consideration of the aforesaid rule, a Division Bench of this Court has held as under:- “Since Rule 13.7 of the 1934 Rules, extracted hereinabove, clearly envisages the applicability of the principle of seniority cum fitness for determining the entitlement of a constable to be placed on List B-1 i.e. for being deputed to the Lower School Course, we have no doubt whatsoever, that given the minimum requisite merit/fitness required, the senior has to be placed on list B-1 as a matter of preference. The only justification depicted in the written statement for considering the claim of respondent No.4 as superior to that of the petitioner is, that respondent No.4 was placed at a higher level vis-a-vis the petitioner while adjudicating the relevant merit of the candidates. As noticed by the Apex Court in Lt. Gen. Rajender Singh Kadyan's case (supra), the comparison of candidates on the basis of merit is irrelevant under the aforesaid principle CWP No.1368 of 2010 : 6 : of promotion. In the aforesaid view of the matter, since it is not the case of the respondents, that the petitioner did not fulfill the minimum requisite merit for being placed on List B-1, we are satisfied that the instant writ petition must succeed and the petitioner, on account of seniority, must be preferred over respondent No.4 for being placed on List B-1 and accordingly for being deputed to the Lower School Course. In view of the above, the instant writ petition is allowed. The respondents are directed to depute the petitioner to the first Lower School Course which will commence after the pronouncement of the instant order. The petitioner shall, however, be treated as having qualified the Lower School Course as if he had been deputed to the Lower School Course for which the instant petition was filed. Disposed of accordingly.” Special Leave Petition filed against the judgment aforesaid came to be dismissed on 10.05.2005. On the basis of Naresh Kumar's judgment, certain more writ petitions were filed. One of the writ petition being CWP No.11940 of 2005 was taken up for disposal by a CWP No.1368 of 2010 : 7 : learned Single Judge on 29.11.2006 who examined Rule 13.7 of the Rules as also the above mentioned judgment of the Division Bench affirmed by the Hon'ble Supreme Court. However, the learned Single Judge was of the opinion that sub Rule (4) of Rule 13.7 was not brought before the notice of the Division Bench and referred the matter for consideration by a Division Bench. On reference being made, the matter was again examined by a Division Bench of this Court vide order dated 14.05.2008. The Division Bench of this Court affirmed the judgment in Naresh Kumar's case by taking note of the Haryana government Instructions dated 13.02.2007. The relevant observations of the Division Bench are as follows:- “The directions given by this Court in Naresh Kumar's case (supra) have virtually been accepted by the State of Haryana, by issuing instructions on 13.2.2007. Relevant portion of the instructions, referred to above, reads thus:- “3. In view of the Hon'ble High Court Judgment in the Naresh Kumar's case (supra), it has been decided to fix the bench mark for fitness under 35% seniority cum fitness quota. The assessment of service record should be made on the basis of education, training courses passed, commendation certificates and length of service etc. as given in PPR 13.7. All the CWP No.1368 of 2010 : 8 : candidates who obtain a minimum 31 marks or more would be deemed to be fit for selection of B-1 seats against 35% quota on the basis of inter-se-seniority of the candidates and for all such candidates inter-se-seniority would be the sole criteria for deputing on their turn under 35% quota in view of the explicit orders of High Court. Please take further necessary action accordingly. In view of facts mentioned above, these writ petitions are allowed in the same terms as in Naresh Kumar's case (supra). The respondents are directed to depute the petitioner(s) to the first Lower School Course, which will commence after the pronouncement of judgment in this case. However, the petitioner shall be deemed to have qualified in the Lower School Course from the date when other constables have qualified, whose names were approved to undergo Lower School Course vide select list Annexure P/1. It is made clear that if by getting retrospective date of passing the Lower School Course, the petitioner became eligible for promotion, the he will get only CWP No.1368 of 2010 : 9 : deemed benefits without getting any actual financial benefits, in view of the principle of “no work no pay”, as laid down by their Lordships of the Hon'ble Supreme Court in Union of India and another Vs. Tarsem Lal and others (2006) 10 Supreme Court Cases, 145.” In view of the above, the issue involved in the present writ petitions is squarely covered by the aforesaid judgments. This writ petition is, accordingly, allowed in terms of the judgments mentioned above. The petitioners are also held entitled to the same relief.

28.01.2010 BLS (PERMOD KOHLI) JUDGE Whether to be referred to the Reporter? YES/ NO