Rajinder Kumar v. State of Punjab & Ors.

respondents have filed their reply/affidavit. Learned counsel for the parties have been heard at some length and records perused. [8]. The facts are broadly not in dispute except that the respondents have reiterated that on re-examination of the records, it has been found that one candidate higher in merit than the petitioner was not given appointment. It is further averred that if the writ petitioners in all the cases are allowed to be retained in service, there are about 25 other candidates who may also stake their claim for appointment. [9]. In other words, the stand taken by the respondents is that retention of the petitioners in service would entail appointments beyond the advertised posts, namely, Hindi Teachers [18 Male BC and 9 Female BC], Punjabi Teachers [13 Male BC and 14 Female BC] and Math Masters [3 Female BC]. [10]. As may be noticed, while allowing the writ petitions filed by the candidates, who were higher in merit, this Court had expressly directed the respondents that “firstly the candidates lower in merit in Backward Class category shall be displaced. However, the respondents shall be at liberty to accommodate such displaced candidates against other vacancies, if available”. [Emphasis applied] [11]. In order to find out the possibility of compliance of the direction, reproduced above, the respondents were directed vide order dated 18.02.2010 to furnish the details of the available vacancies in the Cadre of Hindi, Punjabi and Math Masters/ Mistresses. [12]. An additional affidavit of Pankaj Sharma, Assistant Director o/o the Director, Public Instructions [S], Punjab, Chandigarh, Civil Writ Petition NO. 253 of 2010. ::-4-:: has accordingly been filed, which is taken on record. As per the averments contained in Para 2of the said affidavit, the following posts are still lying vacant in the Department:- Sr. No. Subject Total sanctioned posts in the State

3. Hindi Punjabi Maths 5557 5967 6069 Number of incumbents serving 4861 5428 5331 Total vacant posts available in the State 696 539 738 [13]. It may be seen that even applying 50% reservation etc., there are hundreds of posts lying vacant against which the petitioners can be accommodated. In other words, if the petitioner is allowed to be retained in service, there is no likelihood of depriving of any candidate higher in merit than him from appointment for want of vacancy. [14]. The next question that arises for consideration is as to whether the petitioner can claim retention in service as a matter of right? [15]. There is indeed no denial to the fact that as per the original merit-list displaced on the website or published in the Newspapers, the petitioner was amongst the selected candidates. The selection was carried out by an agency hired by the State Government. The marks secured by the petitioner are not at variance. It is not the case of the respondents that the petitioner misled or duped the authorities to secure appointment. It was on the basis of the marks secured by him that he was given appointment. It is stated that the petitioner was earlier also in Government service and he resigned from the said post so as to join as Hindi Master. It would, therefore, be too iniquitous to subject the petitioner to such an Civil Writ Petition NO. 253 of 2010. ::-5-:: extreme hardship and/or snatch the very source of survival of his family and that too for no fault attributable to him. [16]. It may be true that some of the candidates were wrongly rejected by the respondents treating them ineligible for want of up- dated Backward Class certificates, who have finally succeeded before this Court. The direction issued by the High Court to treat those candidates as eligible, therefore, should not work to the disadvantage of the petitioners. The fact that hundreds of posts are lying vacant and the Govt. Schools, especially in rural areas are suffering a lot for want of adequate teachers, it would otherwise be in the interest of student-community to retain the petitioners in service. [17]. Consequently, the writ petitions are allowed; the impugned Order-cum-Show Cause Notices dated 20.11.2009 are quashed and the respondents are hereby directed to allow the petitioners to continue against the available vacancies, however, without affecting the seniority of the candidates who have been held to be higher in merit. [18]. At this stage, Mrs. Charu Tuli, learned Sr. DAG, Punjab has apprehended and rightly so that there may be many other candidates higher in merit than the petitioners who might stake claim for their appointments. Ordinarily, no such claims at this belated stage can be entertained by a writ Court. However, there is no need to express any final opinion on this issue at this stage when no such candidate has come forward. [19]. Ordered accordingly. Dasti. March 03, 2010. dinesh ( SURYA KANT ) JUDGE