Present: Mr. Ram Niwas Sharma Advocate for Vs. State of Haryana and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1064360
CourtPunjab and Haryana High Court
Decided OnMay-09-2013
AppellantPresent: Mr. Ram Niwas Sharma Advocate for
RespondentState of Haryana and Others
Excerpt:
cwp no.5682 of 2010 -1- in the high court of punjab and haryana at chandigarh cwp no.5682 of 2010 date of decision:09. 05.2013. ram bhagat .....petitioner versus state of haryana & others ....respondents coram:- hon'ble mr.justice tejinder singh dhindsa. present: mr.ram niwas sharma, advocate for mr.madan lal, advocate for the petitioner. mr.harish rathee, senior deputy advocate general, haryana. mr.s.k.tamak, advocate for respondent no.5....tejinder singh dhindsa, j. the instant writ petition has been filed impugning the action of the official respondents in having appointed private respondent no.5 to the post of sanskrit teacher (guest faculty) in the government girls senior secondary school, gangatheri popran, karnal. further prayer is for the issuance of a writ of mandamus for directing the respondents to appoint the petitioner on such post as guest faculty. it is the pleaded case on behalf of the petitioner that he had applied for the post of sanskrit guest teacher with respondent no.4 in the year 2005. it was only upon information having sought under the cwp no.5682 of 2010 -2- provisions of right to information act in the year 2009 that the petitioner became aware that respondent no.5 namely krishan s/o om parkash had been appointed as sanskrit teacher (guest faculty).counsel for the petitioner would refer to the document appended as annexure p-2 alongwith the petition i.e.the merit position of the sanskrit teachers in relation to which the petitioner had also submitted his application. in the light of such merit position, it becomes apparent that seven candidates had applied against one solitary post of sanskrit teacher (guest faculty) and the name of the petitioner figured at sr.no.2 in the order of merit having secured 130.65 marks. the name of respondent no.5 i.e.krishan appears at sr.no.5 having secured 123.43 marks. accordingly, the case set out on behalf of the petitioner is that a candidate, who was less meritorious had been selected and appointed in clear derogation of the rights of the petitioner and such action is arbitrary and violative of articles 14 & 16 of the constitution of india. a joint written statement has been filed on behalf of the official respondents, wherein the factual position of seven candidates having applied for one post of sanskrit teacher (guest faculty) in the school in question as also the merit position reflected in annexure p-2 has not been disputed. the stand taken on behalf of the state is that the merit list of the selected candidates from sr.nos.1 to 7 was displayed on the notice board of the school on 21.12.2005. it has further been stated that up to 19.01.2006, the candidates at sr.nos.1 to 4 in the cwp no.5682 of 2010 -3- order of merit did not come forth to join as sanskrit teacher and under such circumstances, respondent no.5 namely krishan was permitted to join. still further, a specific objection as regards delay has been raised by stating that the petitioner resides in a nearby village and it cannot be believed that the petitioner was not aware of the appointment of respondent no.5 to the post. counsel appearing for the state would submit that there could be no justification for the petitioner to have approached this court after a delay of almost five years.a written statement has been filed on behalf of respondent no.5, wherein it has been stated that his services have been dispensed with w.e.f.12.03.2009 and a regular appointee has joined on the post of sanskrit teacher in the school. thereafter, the private respondent has been appointed afresh on the post of guest faculty in a school in district kurukshetra. still further, respondent no.5 has reiterated the stand that has already been taken on behalf of the state i.e.to the effect that persons higher in merit had declined to join the post and it was only under such circumstances that the post had been offered to him. having heard counsel for the parties at length and having perused the pleadings on record, i am of the considered view that the prayers raised in the instant writ petition cannot be entertained for the following reasons: (i) the present writ petition raises disputed questions of fact; on the one hand, the petitioner asserts that he was never offered appointment to the post of sanskrit teacher (guest faculty) inspite of cwp no.5682 of 2010 -4- being higher in order of merit. on the other hand, the specific stand taken on behalf of the state is that the merit list of the selected candidates had been displayed on the notice board of the school on 21.12.2005 and since the candidates higher in order of merit did not come forth to join, accordingly, the post had been offered to respondent no.5. such factual dispute cannot be gone into and resolved in the exercise of the extraordinary writ jurisdiction under article 226 of the constitution of india. that apart, there is an inordinate delay on the part of the petitioner in having preferred the instant writ petition in the year 2010. admittedly, the petitioner had applied for the post in the year 2005. he chose to remain silent thereafter for a considerable length of time. he cannot be permitted to gain any impetus from the fact that certain information had been sought for and received in the year 2009. it cannot be believed that an applicant for a post would remain quiet and sit over the matter for a period of more than 4 years.even though, there is no period of limitation prescribed for the courts to exercise their power under article 226, yet it would be a sound and wise exercise of discretion for the courts to refuse to exercise such extraordinary powers under article 226 in a case where a person approaches to put forward a stale claim. (ii) a glaring fact that cannot be lost sight of is that a regular appointee has joined on the post of sanskrit teacher in the school in question in the year 2009. such factual assertion has been made in the cwp no.5682 of 2010 -5- written statement filed on behalf of respondent no.5 and is substantiated in terms of document appended as annexure 5/3 along with the written statement. there has been no rebuttal to such factual assertion in terms of filing any replication/rejoinder at the hands of the petitioner. a prayer for being appointed as a sanskrit teacher on the guest faculty, when a regular incumbent already having joined on such post, cannot be accepted. for the reasons recorded above, i find no basis that would warrant interference in this matter. the writ petition lacks merit and is, accordingly, dismissed. (tejinder singh dhindsa) judge may 09th, 2013 harjeet note: whether to be referred to reporter?. no
Judgment:

CWP No.5682 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.5682 of 2010 Date of decision:

09. 05.2013.

Ram Bhagat .....Petitioner versus State of Haryana & others ....Respondents CORAM:- HON'BLE Mr.JUSTICE TEJINDER SINGH DHINDSA.

Present: Mr.Ram Niwas Sharma, Advocate for Mr.Madan Lal, Advocate for the petitioner.

Mr.Harish Rathee, Senior Deputy Advocate General, Haryana.

Mr.S.K.Tamak, Advocate for respondent No.5....Tejinder Singh Dhindsa, J.

The instant writ petition has been filed impugning the action of the official respondents in having appointed private respondent No.5 to the post of Sanskrit Teacher (Guest Faculty) in the Government Girls Senior Secondary School, Gangatheri Popran, Karnal.

Further prayer is for the issuance of a writ of mandamus for directing the respondents to appoint the petitioner on such post as Guest Faculty.

It is the pleaded case on behalf of the petitioner that he had applied for the post of Sanskrit Guest Teacher with respondent No.4 in the year 2005.

It was only upon information having sought under the CWP No.5682 of 2010 -2- provisions of Right to Information Act in the year 2009 that the petitioner became aware that respondent No.5 namely Krishan s/o Om Parkash had been appointed as Sanskrit Teacher (Guest Faculty).Counsel for the petitioner would refer to the document appended as Annexure P-2 alongwith the petition i.e.the merit position of the Sanskrit Teachers in relation to which the petitioner had also submitted his application.

In the light of such merit position, it becomes apparent that seven candidates had applied against one solitary post of Sanskrit Teacher (Guest Faculty) and the name of the petitioner figured at Sr.No.2 in the order of merit having secured 130.65 marks.

The name of respondent No.5 i.e.Krishan appears at Sr.No.5 having secured 123.43 marks.

Accordingly, the case set out on behalf of the petitioner is that a candidate, who was less meritorious had been selected and appointed in clear derogation of the rights of the petitioner and such action is arbitrary and violative of Articles 14 & 16 of the Constitution of India.

A joint written statement has been filed on behalf of the official respondents, wherein the factual position of seven candidates having applied for one post of Sanskrit Teacher (Guest Faculty) in the school in question as also the merit position reflected in Annexure P-2 has not been disputed.

The stand taken on behalf of the State is that the merit list of the selected candidates from Sr.Nos.1 to 7 was displayed on the notice board of the school on 21.12.2005.

It has further been stated that up to 19.01.2006, the candidates at Sr.Nos.1 to 4 in the CWP No.5682 of 2010 -3- order of merit did not come forth to join as Sanskrit Teacher and under such circumstances, respondent No.5 namely Krishan was permitted to join.

Still further, a specific objection as regards delay has been raised by stating that the petitioner resides in a nearby village and it cannot be believed that the petitioner was not aware of the appointment of respondent No.5 to the post.

Counsel appearing for the State would submit that there could be no justification for the petitioner to have approached this Court after a delay of almost five yeaRs.A written statement has been filed on behalf of respondent No.5, wherein it has been stated that his services have been dispensed with w.e.f.12.03.2009 and a regular appointee has joined on the post of Sanskrit Teacher in the school.

Thereafter, the private respondent has been appointed afresh on the post of Guest Faculty in a school in district Kurukshetra.

Still further, respondent No.5 has reiterated the stand that has already been taken on behalf of the State i.e.to the effect that persons higher in merit had declined to join the post and it was only under such circumstances that the post had been offered to him.

Having heard counsel for the parties at length and having perused the pleadings on record, I am of the considered view that the prayers raised in the instant writ petition cannot be entertained for the following reasons: (i) The present writ petition raises disputed questions of fact; On the one hand, the petitioner asserts that he was never offered appointment to the post of Sanskrit Teacher (Guest Faculty) inspite of CWP No.5682 of 2010 -4- being higher in order of merit.

On the other hand, the specific stand taken on behalf of the State is that the merit list of the selected candidates had been displayed on the notice board of the school on 21.12.2005 and since the candidates higher in order of merit did not come forth to join, accordingly, the post had been offered to respondent No.5.

Such factual dispute cannot be gone into and resolved in the exercise of the extraordinary writ jurisdiction under Article 226 of the Constitution of India.

That apart, there is an inordinate delay on the part of the petitioner in having preferred the instant writ petition in the year 2010.

Admittedly, the petitioner had applied for the post in the year 2005.

He chose to remain silent thereafter for a considerable length of time.

He cannot be permitted to gain any impetus from the fact that certain information had been sought for and received in the year 2009.

It cannot be believed that an applicant for a post would remain quiet and sit over the matter for a period of more than 4 yeaRs.Even though, there is no period of limitation prescribed for the Courts to exercise their power under Article 226, yet it would be a sound and wise exercise of discretion for the Courts to refuse to exercise such extraordinary powers under Article 226 in a case where a person approaches to put forward a stale claim.

(ii) A glaring fact that cannot be lost sight of is that a regular appointee has joined on the post of Sanskrit Teacher in the school in question in the year 2009.

Such factual assertion has been made in the CWP No.5682 of 2010 -5- written statement filed on behalf of respondent No.5 and is substantiated in terms of document appended as Annexure 5/3 along with the written statement.

There has been no rebuttal to such factual assertion in terms of filing any replication/rejoinder at the hands of the petitioner.

A prayer for being appointed as a Sanskrit Teacher on the Guest Faculty, when a regular incumbent already having joined on such post, cannot be accepted.

For the reasons recorded above, I find no basis that would warrant interference in this matter.

The writ petition lacks merit and is, accordingly, dismissed.

(TEJINDER SINGH DHINDSA) JUDGE May 09th, 2013 harjeet Note: Whether to be referred to Reporter?.

No