REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO.3127 OF 2008

Ravinder Kumar          …Appellant

                           Versus

State of Haryana & Ors.                           …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. This appeal arises out of an order passed by the High  

Court of Punjab & Haryana, whereby Writ Petition No.1061  

of 2007 filed by the appellant has been dismissed and the  

appellant’s  claim  for  appointment  as  a  Constable  in  the  

Haryana  Police  Department  turned  down.  The  High  Court  

has  taken  the  view  that  since  the  marks  scored  by  the

appellant  were  less  than  the  marks  awarded  to  the  last  

candidate  in  the  general  category,  he  could  make  no  

grievance against his  non-selection in  that category. The  

appellant assails that view primarily on the ground that the  

High  Court  has  failed  to  notice  certain  important  aspects  

that render  the order  unsustainable,  in  particular  the fact  

that two of the candidates selected in the reserved category  

having scored marks that were higher than those scored by  

the last candidate selected in the general category, the said  

candidates ought to have been selected against vacancies in  

the general merit category. If that were done, the appellant  

could be appointed against one of the said vacancies. The  

factual  matrix  giving  rise  to  the  controversy  need  be  

summarized at this stage:

2. A  selection  process  to  fill  up  100  available  posts  of  

Constables in Haryana Police in the District of Sirsa, State of  

Haryana was undertaken in which the appellant was also a  

candidate for appointment against one of the vacancies in  

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the reserved category of ESM/BC(B) for ex-servicemen and  

their  dependents.  The appellant  was put  through physical  

efficiency and other tests and eventually placed at Sr. No.3  

in the ESM/BC(B) category. An appointment order was also  

issued in his favour pursuant whereto he joined the Police  

Department  on  17th August  2001  and  was  allotted  

Constabulary No.2/873 in the 2nd Battalion of the Haryana  

Armed Force.

3. One, Naresh Kumar who had also applied for selection  

in ESM/BC(B) category and whose name did not figure in the  

select list filed Civil Writ Petition No.13130 of 2001 in the  

High Court of Punjab & Haryana challenging the appointment  

of  the  appellant  mainly  on  the  ground  that  the  said  

petitioner had a preferential right to an appointment in the  

ESM/BC  (B)  category  on  account  of  his  being  an  ex-

serviceman  in  comparison  to  the  appellant  who  being  a  

dependent of an ex-serviceman would stand a chance only if  

no  ex-serviceman  was  available  for  appointment.  The  

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appellant had in the meantime completed the Basic Training  

Course of  nine months duration,  passed out in May 2002  

and started discharging the duties attached to the post to  

which  he  was  appointed.  The  High  Court,  all  the  same,  

allowed the writ petition filed by Naresh Kumar and by its  

order dated 10th July 2002 quashed the appointment of the  

appellant with a direction that the claim of ex-servicemen  

candidates  would  have  priority  over  those  who  are  

dependents  of  such  ex-servicemen.  Consequent  upon  the  

said direction, the services of the appellant were terminated  

in  terms  of  an  order  dated  31st December  2002,  the  

correctness whereof was questioned by the appellant in CWP  

No.16287  of  2003.  The  said  petition  was  eventually  

dismissed as withdrawn with liberty to the appellant to file a  

review petition against the order of the High Court in CWP  

No.13130 of 2001. A review petition was accordingly filed by  

the appellant which was disposed of by the High Court by an  

order dated 10th March 2006 directing the respondents to re-

consider the case of the appellant in the general category.  

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Order dated 10th July 2002 passed by the High Court in CWP  

No.13130 of 2001 was to that extent modified.   

4. It was in compliance with the above direction that the  

Superintendent of Police, Sirsa passed an order on 26th May  

2006  declining  an  appointment  to  the  appellant  as  a  

Constable. The order stated that out of eight candidates in  

BC(B) category the last candidate selected for appointment  

had scored 27 marks as against 26 marks awarded to the  

appellant. The order further stated that out of 45 candidates  

selected in the General category the last candidate selected  

for appointment had scored 27 marks. Since the appellant  

fell  below  the  last  candidate  appointed  in  the  General  

category he was disentitled to the appointment prayed for  

by him.  

5. The appellant’s  case is  that the order passed by the  

Superintendent of Police did not disclose the marks obtained  

by  BC(B)  category  candidates  selected  against  the  eight  

posts reserved in that category.  An application seeking the  

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requisite  information  and  copies  of  the  select  list  was  

accordingly filed under the Right to Information Act, but was  

declined  by  the  State  Information  Commission  on  the  

ground that the Haryana Armed Police was exempt from the  

purview of the RTI Act.  It was in that backdrop that the  

appellant  filed  CWP  No.1061/2007  before  the  High  Court  

praying not only for the issue of a writ of certiorari quashing  

the order dated 26th May 2006 passed by the Superintendent  

of Police but also a mandamus directing the respondents to  

supply a complete list of selected candidates in respect of all  

the  categories.  By  its  order  dated  23rd January  2007  

impugned in this appeal, the High court has dismissed the  

said petition primarily on the ground that the last candidate  

selected  both  in  the  BC(B)  category  and  in  the  General  

category having scored 27 marks each as against 26 marks  

awarded  to  the  appellant,  he  was  not  qualified  for  

appointment  in  either   of  the  said  two  categories.  The  

appellant  assails  the  correctness  of  the  said  order,  as  

already noticed above.   

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6. Mr. P.S. Patwalia, learned senior counsel appearing for  

the  appellant  strenuously  argued  that  the  denial  of  

appointment  to  the  appellant  is  discriminatory,  wholly  

unjustified  and  arbitrary.  He  urged  that  according  to  the  

select  list  enclosed  with  the  affidavit  filed  on  behalf  of  

respondent No.1 - the State, 45 candidates were selected in  

the General  Category,  14 in  BC(A)  category  and  eight  in  

BC(B) category, apart from candidates selected in SC ‘A’ and  

SC ‘B’  categories.  Insofar  as  ex-servicemen category  was  

concerned,  the  Select  List  reveals  that  there  were  eight  

vacancies  available  for  ex-servicemen  in  the  General  

category,  while  two  vacancies  were  earmarked  for  ex-

servicemen  BC(A)  category  and  three  vacancies  for  ex-

servicemen BC(B) category. It was argued by Mr. Patwalia  

and  in  our  opinion  rightly  so  that  if  an  ex-serviceman  

candidate  scored  high  enough  marks  entitling  him  to  be  

selected  in  the  ex-serviceman  (General  Category)  such  

candidates ought to be selected in the said category instead  

of  selecting  them  in  the  Ex-servicemen  BC(A)  or  BC(B)  

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categories.  Mr. Patwalia argued that in BC(A) category, two  

candidates,  namely,  Rajbir  Singh  and  Ranjeet  Singh  had  

been selected who had scored 29 and 28 marks respectively.  

Similarly in BC(B) category, Sube Singh, Veer Bhan and the  

appellant Ravinder Kumar had been initially selected each  

one of  whom had scored  26 marks.  With  the High  Court  

directing  appointment  of  ex-servicemen  before  any  

dependent  of  any  ex-serviceman  could  be  appointed  the  

appellant had to vacate to make room for Naresh Kumar,  

who was an ex-serviceman in BC(B) category. Even so two  

vacancies  out  of  eight  reserved  for  in  the Ex-Servicemen  

(General category) had gone to Subhash Chander and Taket  

Singh both of them had scored 25 marks each. This implied  

that  if  candidates  selected  in  Ex-Servicemen  BC(B)  

categories  were  shifted  to  the  Ex-Servicemen  (General  

category)  both  Sube  Singh  and  Veer  Bhan  would  have  

moved  to  the  General  category,   making  room  for  the  

appellant  to  take  an  appointment  in  the  BC(B)  category.  

Inasmuch  as  the  respondents  had  ignored  the  principle  

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underlying the selection of candidates in reserved categories  

even when such candidates had scored better marks than  

the  candidates  selected  in  the  open  category,  the  

respondents had committed a mistake which deserved to be  

corrected. The order passed by the Superintendent of Police  

did not, according to the learned counsel, take note of these  

aspects  and  adopted  an  approach  which  was  legally  

unsound.  It  was  also  argued  by  Mr.  Patwalia  that  the  

appellant had undergone training and even started serving  

the Police Department before he was asked to vacate the  

post  which  was  then  allotted  to  Naresh  Kumar.  This,  

according to the learned counsel, had happened despite the  

fact that the appellant was nowhere at fault.  He had on the  

contrary changed his position to his detriment by undergoing  

an arduous training apart from losing opportunities to seek  

employment elsewhere.   

7. On behalf  of  the  respondents,  it  was  argued  by  Mr.  

Manjit Singh, learned Additional Advocate General that the  

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appointment of the appellant could be justified only if  the  

appellant  figured  higher  in  the  merit  list  than  the  last  

candidate  in  the  General  category.  Inasmuch  as  the  

appellant  failed  to  satisfy  that  requirement  both  in  the  

General category as also in general and reserved categories  

for  ex-servicemen  he  could  make  no  grievance  against  

refusal of an appointment to him.

8. When  this  appeal  came  up  before  this  Court,  Mr.  

Patwalia  made  a  statement  on  instructions  that  if  the  

appellant  was  offered  employment  as  a  Constable  in  the  

Haryana Police, District Sirsa even at this stage he will not  

claim back wages or seniority on the basis of his selection  

and  appointment.  Learned  counsel  for  the  State  was  

accordingly  directed  to  take  instructions  whether  the  

appellant could be accommodated against a vacant post in  

the said District.   Mr.  Manjit  Singh, is  however unable to  

make  any  statement  pursuant  to  the  above  direction  as  

according  to  him  the  respondents  had  not  suitably  

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responded to his queries nor given to him any instructions in  

the  matter  one  way  or  the  other.  He  therefore  sought  

further  time to do the needful.  We regret  our inability  to  

grant any further   opportunity having   regard to the fact  

that the matter has remained pending in this Court and the  

Court below for long and two opportunities for the purpose  

aforementioned  have  already  been  granted  to  the  

respondents.  The  controversy  as  noticed  above  primarily  

revolves around the method adopted by the respondents in  

drawing  up  the  Select  List  of  candidates.  Apart  from the  

vacancies  in  the General  category  there  were,  as  noticed  

above, vacancies for reserved categories also. The reserved  

category for ex-servicemen was divided into three distinct  

sub categories, namely, Ex-servicemen (General Category),  

Ex-servicemen  BC(A)  and  Ex-servicemen  BC(B)  category.  

The  names  of  the  candidates  and  the  marks  awarded  to  

them in each one of these categories were as under:-   

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“EX-SERVICEMEN GENERAL CATEGORY

1. 6003 Durga Dass 27 2. 6005 Balbir Singh 27 3. 6037 Ved Parkash 26 4. 6007 Ram Sarup 26 5. 6015 Rajender Parshad 26 6. 6010 Gurpal Singh 26 7. 6023 Subhash Chander 25 8. 6027 Taket Singh 25

B.C. ‘A’ 1. 6028 Rajbir Singh 29 2. 6016 Ranjeet Singh 28

B.C. ‘B’ 1. 6001 Sube Singh 26 2. 6035 Veer Bhan 26 3. 6031 Ravinder 26”

9. It  is  evident  from  the  above  that  in  ex-servicemen  

(general  category)  the  last  two  candidates  namely:  

Subhash Chander and Taket Singh had scored only 25 marks  

each.  Sube Singh and Veer Bhan selected in Ex-servicemen  

BC(B)  category  had  however  scored  more  marks  than  

Subhash Chander  and Taket Singh.  Sube Singh and Veer  

Bhan could and indeed ought to have been selected against  

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the vacancies in Ex-servicemen (General)  category as per  

their merit.  This in other words would require the Select List  

to  be  recast  and  candidates  suitably  shifted  from  the  

reserved category to the general  category in which event  

appointments can be offered to other candidates in the Ex-

servicemen BC(B) category depending on their merit. Such  

an exercise long after the selection process was completed  

may unsettle  the  settled  position  and  lead  to  removal  of  

candidates who stand already selected and who have been  

serving  for  a  long  time  after  undergoing  the  prescribed  

training.   This  may also  mean  that  candidates  who  have  

accepted  the  result  of  the  selection  and  may  even  have  

become over-age may have to be brought in. We do not see  

any compelling reason for us to adopt that course at this  

distant point of time especially when the same would upset  

what stands settled for a long time. Interest of justice would  

in  our  opinion  be  sufficiently  served  if  we  direct  the  

appointment  of  the  appellant  against  an  Ex-servicemen  

BC(B) vacancy and if no such vacancy is available against an  

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ex-servicemen (General Category) vacancy. In the unlikely  

event  of  there  being  no  vacancy  in  either  one  of  these  

categories  the  appellant  could  be  appointed  against  any  

other  vacancy  in  the  General  category.  Any  such  

appointment would, however, in keeping with the statement  

by  the  appellant  be  effective  from the  date  the  same  is  

made and shall not entitle the appellant to claim any back  

wages, seniority or other benefits. The appointment shall for  

all purposes be treated as a first appointment subject to the  

condition that the competent authority shall be free to direct  

that the appellant shall undergo the training afresh or take a  

refresher course of such training if deemed fit.   

10. In the result, we allow this appeal but only in part and  

to  the  extent  that  the  appellant  shall  be  appointed  as  a  

Constable in the Haryana Armed Police, Sirsa District against  

any  vacancy  in  the  Ex-Servicemen  (General  Category)  or  

ESM/BC  (B)  category.   If  no  vacancy  in  the  said  two  

categories  is  available  the  appellant  shall  be  appointed  

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against  any  vacancy  in  the  General  category.  The  

appointment  shall  for  all  intents  and  purpose  be  a  fresh  

appointment which would not entitle  the appellant  to any  

back  wages,  seniority  or  any  other  benefit  based  on  his  

earlier  appointment.  The  order  passed by  the  High  Court  

shall to the above extent, stand modified.  No costs.  

……………………………..…J. (D.K. JAIN)

…………………………..……J. (T.S. THAKUR)

New Delhi April 22, 2010

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