Punjab and Haryana High Court: In a batch of over a dozen writ petitions filed by civil service candidates against the impugned advertisement issued by the Haryana Staff Selection Commission (‘Commission’) granting a socio-economic criteria granting bonus marks to certain class of persons, the Division Bench of Sanjeev Prakash Sharma* and Meenakshi I. Mehta, JJ., allowed the petitions, holding that the notification dated 11-06-2019 (‘the notification’) which created the criteria for granting such bonus marks was violative of Articles 14, 15 and 16 of the Constitution and thus, the advertisement based on such notification was also unconstitutional. The Court also provided several directions concerning the appointments of new and old candidates.
Background
In 2019, vide the notification, the State amended the selection criteria under the Haryana General Administration Department Rules. It stated that recruitment would be based on 100 marks – 90 marks for the written examination and 10 marks for socio-economic criteria and experience. The socio-economic criteria included: 5 marks for candidates with no family member in government service; 5 marks for widows or for candidates whose father had died before reaching 42 years of age or before the candidate turned 15 years old; 5 marks for members of de-notified or nomadic tribes; and 0.5 marks per year of public sector experience (up to 8 marks). Thus, a total of 10 bonus marks could be awarded for both experience and socio-economic criteria.
Thereafter, the Commission issued a notification for filling up several posts for the Dakshin Haryana Bijli Vitran Nigam (‘DHBVN’). The criteria of selection were 90 marks in the written exam with a maximum of 10 marks for socio-economic criteria and experience.
The petitioner appeared in the examination and cleared it by scoring 89 or 90 out of the 90-mark eligibility criteria; however, he was kept in the waiting list of Ex-servicemen (General) due to lack of vacant posts. He was considered in the general category, but the last selected candidate under such category in the main list scored 93 marks and the last selected candidate in the waiting list secured 92 marks. Thus, the petitioner was not selected.
Aggrieved by the provision of 10 bonus marks to the candidates with socio-economic criteria and experience, which the petitioner did not receive, he filed the present petition challenging the advertisement.
Analysis:
At the outset, the Court reiterated that once a candidate had participated in the selection process and remained unsuccessful, he/she could not turn around and challenge the selection criteria subsequently. Once the candidates participated in the recruitment process with full knowledge of the general rules, they waived the right to challenge the advertisement or selection methodology later. In this regard, the Court referred to Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 and Ramesh Chandra Shah v. Anil Joshi (2013) 11 SCC 309.
However, the Court noted that the aforesaid principle of estoppel would not apply since the selection was subject to the outcome of the present petitions. Moreover, if the process adopted by the State did not fall within the four corners of the ethos of the Constitution and equality, the petitions could not be dismissed. on technical grounds
Referring to Sukriti Malik v. State of Haryana1, the Court noted that the socio-economic criteria considered in the said case were quashed for being violative of Articles 14, 15 and 16 of the Constitution. The Court, in the said case, held that though the State had to follow the provisions which are for the welfare of the people, they cannot create an artificial classification which results in discrimination between similarly placed persons.
The Court stated that the State conducted the selection process in a wholly slipshod manner. Further, the notification granting 10 bonus marks based on socio-economic criteria and experience lacked statutory backing under the proviso to Article 309 of the Constitution. Relying on Indra Sawhney v. Union of India, (2000) 1 SCC 168 the Court reiterated that what cannot be done directly cannot be done indirectly, especially when reservations based on EWS category and social backwardness already existed. Granting further benefit would lead to the breach of the 50 percent ceiling limit laid down in Indira Sawhney (supra).
Thus, the Court found that the entire selection process was tainted on account of granting of bonus marks. If the bonus marks were deleted from the selection process, meritorious candidates would have been selected. A selection which is solely based on acquiring bonus marks was violative of the principles of equality under Article 14 of the Constitution. By carving out such an artificial class of applicants, who would be entitled to 5 bonus marks, as in the present case, the principles enshrined under Article 16 would stand violated. No other reservation, except the one available under Article 15 and 16 of the Constitution, can be made by any State. Any process of appeasing the people on the principle of salus populi est suprema lex stands vitiated on the anvil of Article 14.
Further, the Court noted that the advertisement was issued in terms of the notification in 2019 and the selection process was completed in 2022. The Court rejected the contention that the appointments of those candidates who were selected earlier should be saved, stating that once the criteria is found to be in violation of Articles 14 and 15 of the Constitution the selection process could not be saved. Moreover, the State continued the process at their own risk despite a previous order of the Court holding that the selections would be subject to the decision in the present cases. Any appointment made thereto would therefore be held to be temporary, and no right can be said to have accrued to any of the candidates who have been appointed earlier.
While placing reliance on Ran Vijay Singh v. State of U.P., (2018) 2 SCC 357, the Court applied the “no fault” theory for those candidates who would be ousted from the merit list although they had cleared the exam and had been working for a long time. Noting that these candidates underwent a rigorous selection process and disapproving of the criteria used, the Court stated that such appointees ought not be made to suffer. Accordingly, the Court protected the appointments of such candidates subject to the availability of vacancies and clarified that they would have no claim to seniority under the advertisement.
The Court held that the notification was unconstitutional, as it violated Articles 14, 15, and 16 of the Constitution. Accordingly, it was ultra vires and liable to be set aside.
Furthermore, the Court issued the following directions:
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The State shall publish a revised result and based on the revised result, the meritorious candidates would be entitled to be considered for appointment for the concerned posts advertised in 2019.
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Candidates already appointed, if found to be meritorious according to new criteria, would be allowed to continue in service.
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Appointees who were ousted due to the revised merit list shall be allowed to continue against future vacancies. The State may identify such vacancies for them. If no vacancies were available, these candidates would continue on an ad hoc basis until new posts were created. Their appointments would be treated from the date such vacancies arose, without any claim over the original posts. This protection was extended because these appointees were not at fault and had already served for some years.
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Candidates placed in the revised merit list would be treated as seniors to those whose appointments were protected despite not qualifying by merit.
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Newly selected candidates from the revised merit list would be entitled to claim their appointments from the same date as similarly placed candidates, along with all consequential benefits of seniority and pay parity, although their salary would remain notional until they actually assumed duty.
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The entire corrective exercise shall be completed within three months.
Accordingly, the petitions were allowed.
[Neeraj v. State of Haryana, CWP-16904 of 2021 (O&M), decided on 22-05-2025]
*Judgment authored by: Justice Sanjeev Prakash Sharma
Advocates who appeared in this case :
For the Petitioners: Rahul Makkar, Sarthak Gupta, R.S. Malik, S.S. Nain, Chirag Kundu, Wazir Singh, Suresh Kumar Kaushik, Mazlish Khan, R.S. Saroha, Mandeep Singh Kundu
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For the Respondents: Addl. A.G. of Haryana Pankaj Middha, Sr. DAG of Haryana Shruti Jain Goyal, Niktia Goel, Vivek Chauhan
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1. CWP No.1563 of 2024
