BHOOP SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Bhoop Singh son of Sher Singh, petitioner has filed the present writ petition against the official respondents Nos. 1 to 3 and private respondent No. 4 Sukhbir Singh and it has been prayed that a writ in the nature of certiorari be issued against the respondents and the termination order dated 22.5.1999 (Annexure P-10) issued be respondent No. 2 which has been conveyed to the petitioner on 25.5.1999, be quashed and further it may be declared that order dated 16.4.1998 (Annexure P-3) passed by the High Court has no meaning so far as the petitioner is concerned. It was further prayed by the petitioner that a writ of mandamus be also issued against respondents No. 1 to 3 to allow the petitioner to work as Naib-Tehsildar by treating as if no termination order was ever passed by respondent No. 2 against the petitioner.

(2.) The case set up by the petitioner is that Haryana Public Service Commission (hereinafter called the Commission) issued an advertisement dated 22.9.1993 and six posts of Naib-Tehsildars were advertised for Ambala Division. Out of six posts of Naib-Tehsildars two posts were reserved for Scheduled Castes and four posts were reserved for Ex-servicemen. The petitioner being eligible applied for the said post against the category of Ex-Servicemen. He was selected. His name appeared in the selection list dated 11.5.1994 at Sr. No. 5 in the category of Ex-Servicemen. After his Selection the petitioner was working against the post of Naib-Tehsildar. His work and conduct was satisfactory. No adverse remarks were ever conveyed to him. However, respondent No. 4 Sukhbir Singh filed C.W.P. No. 729 of 1996 praying for issuance of a writ in the nature of mandamus directing the official respondents to appoint him as Naib-Tehsildar against the reserved vacancy meant for Ex-Servicemen as per the policy instructions of the State Government under which the dependents of service personnels killed in action are to be given preference for appointment to the State Service over the other Ex-Servicemen. The plea of respondent No. 4 was allowed vide judgment dated 16.4.1998 passed by the Hon'ble Division Bench and directions were issued that within one month of the submission of the certified copy of the order, the Commission would consider the case of respondent No. 4 for selection as Naib- Tehsildar in the preferential category II of the dependents of Ex-Servicemen and deicde whether or not he deserves to be recommended for appointment as Naib-Tehsildar. It was also mentioned in the order dated 16.4.1998 that if the Commission recommends the name of respondent No. 4 for appointment as Naib-Tehsildar and it becomes necessary to dispense with the service of a less meritorious person then appropriate action would be taken by giving notice and opportunity of hearing to the person likely to be affected adversely. As per the directions issued by the High Court in the above said writ petition the respondent No. 3 considered the claim of respondent No. 4 and found him ineligible for being considered as dependent of Ex-Serviceman for the post of Naib-Tehsildar vide order dated 17.8.1998. It was mentioned by respondent No. 3 that respondent No. 4 is not eligible for the post of Naib-Tehsildar on the ground of being a son of Army personnel killed in action as the priority category II under which the respondent No. 4 claimed the benefit of reservation of dependent of Ex-Serviceman personnel killed/disabled beyond 50% and the respondent No. 4 merely being a son of Ex-Serviceman killed in action does not entitle a person to any priority in selection. Respondent No. 4 has agricultural land. He inherited 13 kanals 10 marlas of land. He had annual income of Rs. 3,000/- in the year 1992-93. He was not dependent upon his father, therefore, he was not eligible to be considered in the priority Category No. II of the Haryana Govt. letter dated 6.3.1972. Thereafter, respondent No. 4 filed a contempt petition bearing No. 1082 of 1998 which was disposed of by the High Court on 7.5.1999 on the ground that the order dated 17.8.1998 has been revoked by the Commission vide order dated 5.5.1999. The petitioner alleges that he was surprised to know that the order dated 17.8.1998 has been revoked by the Commission vide order dated 5.5.1999 at his back. Thereafter, respondent No. 3 wrote a letter to respondent No. 2 wherein the name of respondent No. 4 was recommended for appointment on the post of Naib-Tehsildar in Ambala Division, as a result of which the name of the petitioner was excluded from main list. The petitioner also alleges that in C.W.P. No. 729 of 1996 he was not a party nor he was a party to the contempt petition. He was served with a show cause noticed dated 18.5.1999. He gave reply and in spite of the satisfactory reply his name was removed from the list of Naib-Tehsildars and respondent No. 4 was appointed when he was not eligible. Consequently, the services of the petitioner were terminated. On these basis the petitioner has challenged the termination order dated 22.5.1999 and made a prayer as stated in the earlier portion of this judgment.

(3.) Notice of the writ petition was given to the respondents. Three sets of written statement were filed. The stand of respondents No. 1 and 2 is that the Commission revoked the order dated 5.5.1999. The impugned order was passed after considering the reply of the petitioner and the services of the petitioner were terminated in compliance of the order of the High Court. With the inclusion of the name of respondent No. 4, the name of the petitioner had to be exclude from the main list as there was no vacancy for Ex-Servicemen quota. Therefore, the services of the petitioner were rightly terminated. Respondent No. 3 filed a separate written statement and it was submitted that earlier the Commission passed an erroneous order dated 17.8.1998 and as such the same was revoked by passing the order dated 5.5.1999. Respondent No. 4 also filed a separate written statement and his case is that the petitioner has no concern with the preferential category No. II of the instructions dated 6.3.1972 against the answering respondent who has been rightly considered and appointed. According to the instructions, if the name of first two categories are available then candidates of category No. III (Ex-Servicemen, who retired from Army and are still getting pension) will be called to fill that post. In the present case the candidates of preferential category No. II (dependents of service personnel who killed in war/disabled beyond 50%) were available like answering respondent. In these circumstances, the petitioner was never eligible because he falls within category No. III. There was an error on the part of respondents No. 1 to 3 while considering the case of the petitioner for the post of Naib-tehsildar. The son/dependent of Ex-servicemen, who were killed in action, is eligible. This fact was also cleared by Zila Sainik Board, Bhiwani vide letter dated 26.10.1998. The said letter was submitted to respondent No. 3, who had initially passed a wrong order by illegally rejecting the case of respondent No. 4. The respondent No. 3 had wrongly and improperly interpreted the circular dated 6.3.1972 in the light of instructions dated 21.11.1980 which are applicable to the dependents of Ex- Servicemen. The instructions relied upon by the petitioner are not applicable to the facts and, therefore, the order dated 17.8.1998 was passed in an illegal manner and it could not be sustained in the eyes of law. The two brothers of answering respondent had already taken the benefit of dependent of Ex-servicemen as per the instructions dated 6.3.1972. In short, the case set up by respondent No. 4 is that he had a preferential claim than that of the petitioner and, therefore, he was eligible for the post and had superior claim than that of the petitioner.