HARYANA STAFF SELECTION COMMISSION vs PRIYANKA AND OTHERS ETC Case

HARYANA STAFF SELECTION COMMISSION vs PRIYANKA AND OTHERS ETC Supreme Court Case

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
M.A. NOS. 539-569 OF 2022
IN
CIVIL APPEAL NOS. 5065-5095 OF 2021
HARYANA STAFF SELECTION COMMISSION ……..APPELLANT(S)
 VERSUS
PRIYANKA AND OTHERS ETC. ……RESPONDENT(S)
WITH
CONTEMPT PETITION(C) NOS. 888-918 OF 2021
IN
C.A. NOS. 5065-5095 OF 2021
WITH
CONTEMPT PETITION(C) NO. 11 OF 2022
IN
C.A.NO. 5090 OF 2021 @ C.A. NOS. 5065-5095 OF 2021
WITH
M.A. DIARY NO. 9711 OF 2022 IN C.A.NO. 5065 OF 2021 @ C.A.
NOS. 5065-5095 OF 2021
WITH
 M.A. DIARY NO. 9760 OF 2022 IN C.A. NOS. 5065-5095 OF 2021
O R D E R
Dinesh Maheshwari, J.
1. We have heard learned counsel for the parties in relation to the
applications seeking clarification/modification of the judgment and order
dated 01.09.2021 passed by this Court in Civil Appeal Nos. 5065-5095 of
2021 arising out of Special Leave Petition (C) Nos. 25184-25214 of 2018
and in relation to Contempt Petition (C) Nos. 888-918 of 2021 and 11 of
2022 as also various other applications for
intervention/direction/clarification, as filed by the cross-section of
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candidates and the Haryana Staff Selection Commission (for short ‘the
Commission’).
2. The relevant background aspects of the matter are that the
Commission had issued an advertisement inviting applications for
appointment to the post of Post-Graduate Teachers in different disciplines
for which, the candidate was required to possess the qualification of B.Ed.
The advertisement was issued on 28.06.2015 and the last date for
submission of online application form was 12.10.2015. The requirement
had been that on the date of submission of the application, the candidate
ought to possess B.Ed. degree.
3. The genesis of dispute leading to the present scenario had been in
the fact that some of the candidates had appeared in B.Ed. examination of
the respective universities and though their final result had not been
declared but, on request, they were provided with the
provisional/confidential result of B.Ed. examination by the respective
universities before 12.10.2015. These candidates applied in pursuance of
the advertisement aforesaid. However, at the time of screening, their
candidature was rejected by the Commission only on the ground that the
result of their B.Ed. course had not been finally declared by the respective
universities prior to the cut-off date, i.e., 12.10.2015; and they could not
have applied on the basis of the alleged provisional/confidential result.
4. Such rejection of candidature was challenged by some of these
candidates and the batch of writ petitions led by CWP No. 2701 of 2016
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was decided by a learned Single Judge of Punjab and Haryana High Court
on 23.10.2017. The learned Single Judge was of the view that the result
obtained by the writ petitioners could not have been considered invalid, as
the same was obtained not from any other source but from the university
itself. The learned Single Judge disapproved the rejection of candidature
of writ petitioners and issued directions in the following terms: -
“Hence, in view of what has been stated hereinabove, as also as
per the ratio of the Division Bench judgment in CWP no.9533 of
2001, “Ankita Beniwal vs. Haryana Public Service Commission”,
these petitions are allowed and the respondent Commission is
directed to interview the petitioners if they otherwise come within
the zone of selection as per the marks obtained by the last
candidate, in each category in which the petitioners have applied,
provided of course that the result in the case of each petitioner, in
the examination concerned, was disclosed by the respondent
University prior to the cut off date, i.e. 12.10.2015 as per the
corrigendum Annexure P-2.”
5. The Division Bench of the High Court endorsed the views of the
learned Single Judge and found that the candidates who had obtained
provisional/confidential result before the cut-off date were eligible to be
considered in the selection process in question. The Division Bench, inter
alia, observed and held as under: -
“……However, the fact remains that all the petitioners had qualified
the B.Ed. examination and they were eligible to apply for
appointment to the post of Post Graduate Teacher. Ultimately
marks could be considered at the time of interview and if it affects
the merits, the same can be taken into consideration. In any case,
the final result was also declared on 5.11.2015 i.e. before the
Screening Test, which took place on 6.3.2016, i.e. much before the
date the Screening Test was conducted.
Learned counsel for the appellant has vehemently argued that in
this case, some of the candidates could not apply for conveying their
result confidentially and therefore, they could not be discriminated
against.
The said contention was rightly repelled by the learned Single
Bench of this Court. If some of the candidates did not bother to apply
for confidential result, they are to blame themselves for the said
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lapse. In any case, those who are vigilant and had applied for
confidential result and it was conveyed before the cut off date i.e.
12.10.2015, which made them eligible for applying for the post, their
case has to be considered and decided in terms of the directions of
the learned Single Bench of this Court.
We are of the view that many times, Universities, due to some
administrative reasons or slackness is unable to declare the result
in time. The candidates, who are to get employment or further
admission on the basis of the said result, are not to be made to
suffer for the same. Therefore, most of the Universities have made
provision for declaring the result provisionally/ confidentially, which
is correct approach in such cases. Therefore, whether or not, there
are any rules, the University, which has got the power to declare the
final result, has also got the power to declare the result
confidentially/provisionally before it is officially declared.”
6. The aforesaid observations and findings were sufficient to conclude
the matter but the Division Bench of the High Court further proceeded to
suggest that the Commission should amend the Rules in the manner that
in future, educational qualification should be considered only at the time of
screening or interview.
7. The judgment and order so passed by the Division Bench of the
High Court was in challenge before this Court in the appeals arising out of
SLP(C) Nos. 25184-25214 of 2018. During consideration of the said SLPs,
this Court also considered the prayer for interim relief and taking note of
the number of candidates projected before it and looking to the
submissions made by the learned counsel appearing for the Commission
to leave the posts vacant, this Court passed the interim order dated
27.11.2018 in the following terms: -
“1. Heard the learned senior counsel appearing on behalf the
applicants in I.A.No.144358/2018.
2. A prayer has been made in the application not to fill the posts by
the candidates lower in merit to the applicants-respondents, as they
may suffer irreparable loss.
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3. The dispute is about the provisional result and final result. Since
the statement has been made by learned counsel appearing for the
Haryana Staff Selection Commission to keep the posts vacant, the
respondents are 74 and including the intervenors, number appears
to be 90.
4. Let 90 posts be kept vacant, as offered by the petitioner and the
appointments made shall be subject to the outcome of the special
leave petition. I.A. No. 144358/2018 stands disposed of
accordingly.”
8. The said SLPs and the connected IAs were finally considered and
disposed of by this Court on 01.09.2021. This Court affirmed the views of
the High Court so far the question of eligibility of the candidates possessing
provisional/confidential result was concerned, as long as authenticity of
such result was not in doubt. This Court held that the candidates concerned
(the respondents) cannot be said to be not qualified on the cut-off date as
the provisional/confidential result had been declared by the respective
universities in their favour prior to the said date and the applications were
filed well within time with such provisional/confidential result. Thus, this
Court declined to interfere with the principal part of the order impugned.
However, the other directions by the Division Bench of the High Court to
the Commission, to amend the Rules, were found to be rather
unnecessary, particularly when those aspects were not the matters in
issue. Therefore, the directions issued by the Division Bench of the High
Court beyond the subject-matter of the writ petitions were disapproved and
were set aside.
9. While concluding on the matter, this Court took note of the interim
order dated 27.11.2018 and, looking to the circumstances of the case and
the facts as projected, issued directions as under: -
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“Since this Court had, vide interim order dated 27.11.2018,
directed that 90 posts be kept vacant by the Haryana Staff Selection
Commission/appellant i.e., 74 posts for the private respondents
herein and remaining 16 posts for the intervenors who had till then
filed intervention applications, we direct that the said 90 posts be
offered to the 74 private respondents and 16 intervenors (who have
filed the intervention application prior to the passing of the order
dated 27.11.2018) within four weeks from today, and they shall be
given appointment on due verification, without any delay.
It is further provided that the aforesaid 90 candidates shall be
placed just below the candidates who have already joined and the
seniority of the 90 candidates shall be on the basis of the inter se
merit among them. The respondents shall not be entitled to any
salary for the period they have not worked, and they would only be
entitled for their due seniority with increment, if any, as their
appointment shall be deemed to be notionally from the date of
appointment of other candidates who were earlier selected and
appointed in response to the advertisement dated 28.06.2015.”
10. The aforesaid directions having not been complied with, some of
the candidates/writ petitioners moved this Court in contempt jurisdiction by
filing Contempt Petition (C) Nos. 888-918 of 2021. Therein, while issuing
notices on 17.01.2022, this Court expected that the respondents would
comply with the order dated 01.09.2021 by the next date. Then, on
16.02.2022, this Court also examined another contempt petition bearing
No. 11 of 2022 and, while issuing notices therein, this Court took note of
laxity on the part of the Commission and observed in relation to the
Contempt Petition (C) Nos. 888-918 of 2021 as under: -
“CONMT.PET.(C) No. 888-918/2021 in C.A. No. 5065-5095/2021
By order dated 01.09.2021, this Court had directed that the
concerned 90 candidates shall be appointed and placed just below
the candidates who had already joined and the seniority of the 90
candidates shall be on the basis of the inter se merit among them.
The appointments were to be made within four weeks from the date
of the order dated 01.09.2021. Since the appointments were not
made by the respondents/alleged contemnors, notice was issued to
the respondents/alleged contemnors in these contempt petitions on
29.11.2021. The counter affidavit has been filed on behalf of the
respondents/alleged contemnors in which they have stated that 35
7
candidates out of 90 have been offered appointments and that too
only after the contempt notice was issued to the
respondents/alleged contemnors. In the counter affidavit, nothing
has been stated about what steps had been taken by the
respondents/alleged contemnors within four weeks, which time was
granted by this Court to them to appoint the said 90 candidates.
It is unfortunate that the candidates, who got favourable order of
this Court, have to again rush to this Court to get the order
implemented. Since no explanation has been given by the
respondents/alleged contemnors as to what steps they had taken
within four weeks time which was granted to them and further the
order has yet not been fully complied even after the issuance of the
notice in these contempt petitions, we direct that the
respondents/alleged contemnors be present personally on the next
date of hearing so as to enable the Court, if necessary, to frame the
charges.
List on 15.03.2022.”
11. Then, on 15.03.2022, this Court took note of the submissions made
on behalf of the contemnors that the appointment letters had been issued
to 90 candidates who were directed to be appointed by the order dated
01.09.2021. While granting time to the petitioners to file response, the
matters were adjourned while dispensing with personal presence of the
contemnors. However, thereafter, Miscellaneous Applications Nos. 539-
569 of 2020 and the other connected matters were directed to be listed
before the Bench that had passed the order dated 01.09.2021. The
contempt petitions were also later on ordered to be placed with the said
Miscellaneous Applications. In this manner, these applications and
contempt petitions have been placed before us for consideration alongwith
several other applications seeking intervention/direction/clarification.
12. The crux of submissions of the Commission and its prayer for
modification with respect to relevant facts could be usefully reproduced
from the contents of their application as follows: -
8
“10. That in continuation of para no 6 of present application, it is
relevant to bring to the kind notice of this Hon'ble Court that out of
total 90 respondents the Haryana Staff Selection Commission could
only recommend total 44 respondents as only these are the
candidates who are falling in merit zone after considering their
confidential results valid for the posts in question. Further, it is
pertinent to mention here that the need of clarification arises here
as in judgement dated 01.09.2021 (reproduced in para no 2 of
present application) the Hon'ble Court directed to offer appointment
to these 90 respondents. But as mentioned in para no 6 above it is
reiterated at the cost of repetition that the number of respondents
are having lesser marks than the marks secured by last selected
candidate (also known as cut off marks) in their respective category.
Further, there are number of candidates who are found to be placed
higher in merit than the respondents and by ignoring the preferential
right of meritorious candidates appointment non-meritorious to
respondents cannot be offered without bringing the said fact to the
kind attention of this Hon'ble Court.
Further, it is also pertinent to mention here that there are
similarly situated candidates (as like respondents) who have
applied for the post of PGT and TGT but could not get selected as
they were also declared ineligible at time of scrutiny of documents
on account of confidential results. If confidential result of such
similarly situated candidates is considered then number of such
candidates are again higher in merit than the respondents in the
present petition and preferential right of such similarly situated
candidates cannot be defeated without bringing the said fact to
attention of this Hon'ble Court.
11 That as already submitted above, COCP NO.... and COCP
No.... arising out of judgement dated 01.09.2021 passed in Civil
Appeal No. 5065-5095 of 2021 are filed before this Hon'ble Court
for the implementation of the above said judgement and the same
are listed before this Hon'ble Court on 16.02.2022.
11A. That, further the Hon'ble High Court had granted relief to the
respondents in the present case but various other similar writ
petitions involving the same issue of confidential result are pending
before the Hon'ble High Court as they were adjourned over a period
of time Sine Die in view of the above said petitions pending before
this Hon'ble Court. That it is further pertinent to mention that after
this Hon'ble Court decided the SLP on 01.09.2021, many LPA/ writs
pending before the Hon'ble High Court were decided subsequently
on various dates as 25.11.2021, 03.12.2021, 17.12.2021,
21.12.2021. The list of the cases i.e. writs and LPA's decided by the
Hon'ble High Court is attached at Annexure-A/8. It is further
pertinent to mention that certain writs and LPAs are still pending
before the Hon'ble High Court on the same issue. The list of cases
i.e. writs and LPA's pending before the Hon'ble High Court is also
annexed as Annexure-A/9. After the above judgement dated
01.09.2021, many representations have been received from the
candidates who had been considered ineligible on account of their
9
confidential result and are now claiming parity with the respondents
in the present case.
12. That with regard to the direction of this Hon'ble Court in
judgement dated 01.09.2021, to place the 90 respondents just
below the candidates who were selected earlier, it is pertinent to
mention here that the recommendation of candidates/merit list is
prepared on the basis of marks of the candidates in written
examination and viva-voce etc. as per criteria. If any candidate is
having higher marks than the candidate who was selected earlier in
the same advertisement, then such candidate who is having higher
marks is having preferential right to be considered on top merit in
comparison to the candidate who is having lesser marks. Further,
merit is always prepared on the basis of marks and not on the basis
of date of joining and as such the respondents who are having
higher marks than the candidates selected earlier for the post in
question were placed on their actual merit position. Thus, after
declaration of result on the basis of selection criteria notified for the
various subjects/posts of PGT and TGT, the placement of the
candidates in the original result is prepared before submitting it to
the concerned requisitioning department. The selection criteria on
the basis of which final result was prepared for the post of PGT as
well as TGT is mentioned in para no 3 of present application. Thus,
seniority of candidate changes with change in marks and date of
birth and candidates with higher marks cannot be placed below in
merit than the candidates who secured lesser marks.
13. That in the above facts and circumstances it is in the interest
of justice that the clarifications on the issues mentioned above may
kindly be granted.
14. That the applicants, therefore, most respectfully prays that this
Hon'ble Court be pleased to:
PRAYER
a) Allow the present application and clarify the judgement dated
01.09.2021 passed by this Hon'ble Court as prayed for in para no
10 and 12 of present application and/or
b) Pass further such orders as this Hon'ble Court may deem fit and
proper in the fact and circumstances of the present case.
For such act of Kindness the petitioner shall ever remain
grateful as in duty bound.”
13. The position has been clarified as regards offer of appointment in
the affidavit filed by the Additional Chief Secretary to the Government in its
School Education Department, in the following terms: -
“6. That the whole selection process spreading in various stages
starting from issuing advertisement until the declaration of final
result has been carried out by the HSSC. The subsequent role of
the Department of issuing the offer of appointment came into play
only after getting the subject wise recommendations received after
10
verification of documents from the HSSC over a period of time. After
receiving recommendations, the offer of appointment has been
issued to 90 candidates in an expeditious manner by the
Department.
7. That this Hon'ble Court at the time of dismissing the SLP (C) No.
25184-25214 of on 01.09.2021, directed to offer said 90 posts to
respondents/interveners within four weeks. The, HSSC had the
recommendations pertaining to the respondents alongwith
interveners on different dates mentioned as in following table: -
Sr.
No.
Subject Number of
Candidates
Date of
Recommend
ation
Offer of
Appointment
issued by
Department
of School
Education on
1. PGT
Punjabi
02 25.01.2021
(Received on
10.11.2021)
04.02.2022
(Delay occurred
due to outbreak
of Pandemic
COVID-19)
2. PGT
Psychology
03 23.02.2022 02.03.2022
3. PGT
Mathematics
31 16.01.2019,
31.01.2022 &
23.02.2022
06.03.2019,
08.02.2022;
14.02.2022 &
02.03.2022
4. PGT
Chemistry
14 18.01.2022
& 3.02.2022
08.02.2022 &
02.03.2022
5. PGT
Sociology
07 18.01.2022
& 23.02.2022
08.02.2022 &
02.03.2022
6. PGT
Physics
10 21.01.2022 14.02.2022
7. PGT
History
09 02.02.2022,
15.02.2022 &
23.02.2022
14.02.2022 &
02.03.2022
8. PGT
Economics
06 04.02.2022
& 23.02.2022
14.02.2022 &
02.03.2022
9. TGT
Science
03 12.02.2022 14.02.2022
10. PGT
Commerce
04 04.02.2022
& 23.02.2022
14.02.2022 &
02.03.2022
11
11. PGT
English
02 21.01.2022
& 23.02.2022
14.02.2022 &
02.03.2022
12. PGT
Sanskrit
01 Advertisement
Withdrawn on
dated
09.02.2021 due
to Court
Litigations
pending before
the Hon’ble
Punjab &
Haryana High
Court.
13. TGT
English
01 Advertisement
Withdrawn on
dated
19.02.2021 due
to Court
Litigations
pending
before the
Hon’ble
Punjab &
Haryana High
Court.
-- Total 93 ------- -------
8. That as on today, 90 the respondents and intervenors in SLP. No.
25184-25214 of 2018 have been duly issued offer of appointment
as recommended by HSSC. The Department has complied with the
directions of this Hon'ble Court. The Deponent tenders its sincere
apology for delay in compliance of the direction of the judgment
dated 01.09.2021. The copies of recommendations received from
HSSC and offer of appointments issued by the Department are
appended alongwith as Annexure R-1/1 (Colly) and Annexure R1/2 (Colly) respectively.
9. That in view of the submissions made above, the Deponent most
humbly submits that the efforts had all along been made bonafidely
and the orders of this Hon'ble Court have been implemented now.
The Deponent once again regrets and humbly tenders his
unqualified apology for the delay.”
14. The Commission has pointed out its stand and compliance in the
affidavit of its Secretary while stating, inter alia, as under: -
“2. That there was no malafide intention of the authorities of
Commission at any point of time to circumvent the judgement dated
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01.09.2022 passed by this Hon'ble Court by taking recourse to
unsustainable justification. The deponent at any point of time is
bound to act fairly, expeditiously and in accordance with the orders
of this Court but reason for delay in recommendation was out of total
13 categories of posts posts involved in SLP No. 25184-25214 of
2018 the Commission, because of withdrawal of 2 posts by the
requisitioning department i.e. PGT Sanskrit under category 16 of
Advt. no. 4/2015 and TGT English under category 1 of Advt. no.
9/2015 the Commission could not recommend the candidates for 2
categories of posts. Further, many candidates who have
subsequent to judgement dated 01.09.2021 been found to be higher
in merit than the respondents in SLP No. 25184-25214 of 2018 and
clarification to this effect was required as to whether merit of
candidate can be compromised when candidates higher in merit
than respondents are available. However, as the Clarification
application no. 24570 of 2022 could not be taken up for hearing on
16.02.2022, the Commission thereafter has recommended all the
petitioners involved in SLP 25184-25214 of 2018 except the
candidates who applied for the post of TGT English and PGT
Sanskrit as also mentioned above.”
*** *** ***
“3. That in the judgement dated 01.09.2021 this Hon'ble Court in
view of order dated 27.11.2018 in SLP No. 25184-25214 of 2018
directed to give appointment to 90 candidates. However, as per
memo of parties of SLP No. 25184-25214 of 2018 alongwith
interlocutory applications filed before 27.11.2018 the total number
is 93 instead of 90 candidates as also shown in table drawn above
in para no. 2. The details of these 93 candidates alongwith their SLP
or I. A no. is annexed as Annexure R-3/2.
4. That the deponent here prays that the compliance report of
judgement dated 01.09.2021 may please be taken on record. By
23.02.2022 all the 93 candidates have been duly recommended
except the candidate namely Ms. Sangita for the post of PGT
Sanskrit and Mr. Deepak for the post of TGT English as those two
posts have been withdrawn by the requisitioning department after
filing of SLP. Copy of recommendation letters of all candidates
involved in SLP is placed are Annexure R-3/3.
Further, it is relevant to bring to the kind knowledge of this
Hon'ble Court that out of total 93 candidates interview of 14
candidates were pending. Wherein, 5 candidates remained absent
during the interview and thus no mark of interview could be awarded
to such candidates, yet the said 5 candidates have also been
recommended by Commission in compliance of the judgement
dated 01.09.2021.”
15. A variety of submissions have been advanced before us in relation
to various applications moved by the respective parties as also in relation
to the contempt petitions. The present one being essentially the
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proceedings for clarification of the orders passed by this Court with needful
directions, and to examine if there be any case of wilful or deliberate
disobedience, we need not elaborate on the variegated submissions made
by the parties standing at different footings. Suffice it to notice in a nutshell
that as per the Commission, the operative part of the order dated
01.09.2021 is likely to result in undue advantage to those candidates who
have not even secured cut-off marks and at the same time, it is likely to
result in denial of the right of such candidates who are found to be standing
higher in merit. It is also the submission of the Commission that there are
other similarly situated candidates who were declared ineligible at the time
of scrutiny on account of provisional/confidential results and if the
provisional/confidential results of such similarly situated candidates are
considered, then a number of such candidates would again be higher in
merit than the respondents of the appeal and the preferential rights of such
similarly situated candidates is likely to be defeated. In continuity, it has
also been pointed out by the Commission that various similar writ petitions/
intra-court appeals involving similar issues of provisional/confidential result
have been decided by the High Court or are pending in the High Court, as
they were adjourned over a period of time sine die in view of the matter
being pending in this Court. The major part of grievance of the intervening
applicants is that literal interpretation and application of the order passed
by this Court may result in giving preference to less meritorious candidates.
The submissions on behalf of the candidates who have been found
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meritorious amongst this lot of 90/93 candidates is to maintain their
appointment as they nevertheless stand in merit and there cannot be any
exception to their appointment. The submissions on behalf of other
candidates, who are allegedly standing lower in merit, are to the effect that
their appointments be maintained for the same having been accorded
pursuant to the long-drawn litigation. The alternative submissions on their
behalf are to provide for their accommodation in several other vacancies
available with the Government and in that regard, it is submitted that about
3000 vacancies are cumulatively available in all the disciplines.
16. We have given anxious consideration to the rival submissions and
have examined the matter in its totality,
17. While issuing directions in the order dated 01.09.2021, this Court
had taken note of the interim order dated 27.11.2018 and keeping that in
view, it was provided that the offer of appointment shall be made against
the said 90 vacancies within 4 weeks to 74 private respondents and 16
intervenors; and they were to be given appointment on due verification
without delay. In the totality of circumstances, we had also considered it
appropriate to provide that the aforesaid 90 candidates shall be placed
below the candidates who had already joined and seniority amongst these
90 candidates would be on the basis of inter se merit. The crucial factor as
regards the pendency of other writ petitions in the High Court or any matter
similarly decided by the High Court as also the particular points in relation
to other meritorious candidates did not come up for fuller exposition before
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this Court. Even the application seeking clarification/modification was filed
late in the month of February, 2022 and that also remained pending when
the orders for compliance were passed in the contempt matters. Be that as
it may, it remains fundamental in dispensation of justice that the act of the
Court should not be to the prejudice of anyone (actus curiae neminem
gravabit). When it comes to the question of merit, the principles of this
maxim are of more serious and emphatic application.
18. A look at the background aspects makes it clear that this longdrawn litigation had its genesis in the Commission taking an entirely
unjustified view of ignoring provisional/confidential results even when they
were duly verified by the universities. This approach of the Commission
was not approved by the learned Single Judge and the Division Bench of
the High Court; and the views of the High Court were emphatically affirmed
by this Court. Obviously, the unjustified stand of the Commission primarily
led to the delay in the process. Furthermore, if the Commission found that
the directions in the order dated 01.09.2021 were requiring
clarification/modification, they ought to have moved this Court well within
the time of four weeks, but they chose to appear late and rather seems to
have moved into action only after contempt petitions were filed in this Court
and notices were issued. Yet again, even these aspects cannot be allowed
to operate prejudicial to the interests of persons standing higher in merit
when the process of appointment against the vacancies, which was earlier
on hold pursuant to the interim order of this Court, is taken forward; and the
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orders of the Court cannot be allowed to operate at conflict with the
requirements of merit. In other words, any eventuality leading to the
advantage of less meritorious candidates at the cost of meritorious one has
to be eschewed. In the peculiar circumstances of this case, we would, of
course, enter one caveat that the benefits flowing from the order dated
01.09.2021 could only be extended to the candidates who had approached
either the High Court or this Court before passing of the said order and
cannot be indiscriminately extended to the persons who chose to remain
fence-sitters and did not assert their rights at the relevant point of time.
19. It is also noteworthy that in the directions dated 01.09.2021, this
Court had provided for inter se merit of the said 90 candidates and they
were to be given appointment on due verification. The inter se merit would
obviously depend upon the candidates facing the interview and to be
appointed only if coming within the zone of selection as per the marks
obtained by the last candidate in the category in which each of them had
applied. Moreover, none of the candidates who had been appointed
pursuant to the orders passed by this Court could claim continuance at the
cost of more meritorious eligible candidates of the same selection process.
20. Taking note of all the facts and circumstances, it is considered
appropriate and hence observed and directed, in continuity with the order
dated 01.09.2021, as under: -
17
(1) The directions issued by this Court shall be read alongwith
the directions issued by the learned Single Judge in the order
dated 23.10.2017.
(2) The two posts respectively of PGT Sanskrit and TGT
English, which had been withdrawn on 10.02.2021 and
22.02.2021, were obviously not available for being offered and
the Commission need not make any offer in that regard; the
offer if made shall stand annulled ab initio.
(3) The selections against the posts which were ordered to be
kept vacant by the order dated 27.11.2018 are to be made with
reference to the merit standing of the candidates while treating
the candidates whose provisional/confidential result had been
declared before the cut-off date as eligible. In this regard, it is
also clarified that the benefit of the order passed by the High
Court, as approved by this Court, shall be available only to the
candidates who had approached this Court or the High Court
before passing of the order dated 01.09.2021 and not others.
(4) Obviously, the candidates whose cases have been
decided by the High Court or are pending in the High Court (as
per Annexures ‘A8’ and ‘A9’ of the application filed on behalf
of the Commission) would also be governed by this order.
(5) In the order dated 27.11.2018, this Court had made all the
appointments subject to the decision of this Court. The
18
Commission appears right in its submissions that the
recommendations are made on the basis of the marks
obtained in written test and viva-voce and a candidate having
higher marks than the candidate selected earlier, ordinarily,
should not be placed below in rank. A substantial number of
candidates among the respondents had been those who had
been deprived of their right to be selected on the baseless
proposition of the Commission. On being appointed after the
judgment of this Court, their appointment ought to relate back
to the original date of selection. In the order dated 01.09.2021,
we had provided in regard to such persons, that their
appointment shall be deemed to be notionally from the date of
appointment of other candidates who were earlier appointed in
response to the advertisement dated 28.06.2015. Of course,
we had provided that these newly appointed candidates would
not be entitled to any salary for the period they had not worked
but shall be entitled for due seniority and increment, if any. In
continuity with such directions, it is provided that the
Commission would be expected to recast the merit in
accordance with law. Therein, of course, the candidates who
had chosen not to appear for interview or not to agitate the
issue in question, would not be entitled for consideration.
19
(6) Until the Commission carries out the requirements of this
order and recasts the merit position and the eligible candidates
are issued fresh offer of appointment, status quo as existing
today shall be maintained. However, after recasting the merit
list, the cases of those candidates who have been given the
offer of appointment pursuant to the orders passed by this
Court earlier but are to be denied appointment due to merit
standing, may be considered for accommodation against the
existing vacancies, but only in accordance with law.
With the aforesaid directions/modifications, all the applications
including the Interlocutory Applications stand disposed of.
21. No case of wilful or deliberate disobedience being made out, the
contempt petitions are disposed of; notices are discharged.
.…....……………………. J.
(VINEET SARAN) 1
.…....……………………. J.
(DINESH MAHESHWARI)
NEW DELHI;
MAY 09, 2022.

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