- (1.) THIS order will dispose of two appeals viz. Letters Patent Appeal Nos.1000 of 2013 titled as "State of Punjab and Another v. Shavita Vijweshwar and Others" and No. 999 of 2013 titled as "State of Punjab and Another v. Smt. Jyoti Jindal", as the common questions of law and facts are involved therein. To dictate order, facts are being taken from Letters Patent Appeal No. 1000 of 2013.
(2.) THIS appeal has been filed against an order dated 6.5.2013 passed in Civil Writ Petition No. 25418 of 2012, filed by the respondents, which was allowed by the learned Single Judge and letter dated 13.12.2012 (Annexure P7) was quashed. Vide that letter, service of respondent No.1 -Shavita Vijweshwar was terminated on the ground that about 90 candidates, between her merit and the merit of last selected candidate, were left out of service when it was offered to her. Appellant - State issued a public notice on 23.9.2009 (Annexure P1) inviting applications for recruitment of the Lecturers in the subjects including the posts of Hindi Master/Mistress. In all, 713 posts of Hindi Master/Mistress were advertised. It was provided in the advertisement that posts are earmarked in the ratio of 50:50 between men and women. The respondents being eligible applied in response to above advertisement. It is necessary to mention here that criteria for selection was mentioned in the advertisement. It was stated that there shall be 80 marks on the basis of percentage of marks obtained by each candidate in basic educational and professional qualifications. In addition thereto, 5 marks were earmarked for higher qualification, another 10 marks for another higher qualification and 10 marks were reserved for teaching experience for ten years i.e. 1 mark for each year of experience. The respondents No.1 to 3, stated that as per the criteria mentioned above, they had secured following percentage of marks: - "1. Respondent No.1 62.2999 2. Respondent No.2. 62.2862 Bhardwaj Deepak Kumar 2014.03.12 17:32 I attest to the accuracy and integrity of this document Letters Patent Appeal No. 1000 and 999 of 2013 (O&M) 3
(3.) RESPONDENT No.3 62.2742" 3. It was their further case that as per the merit list prepared, their names appeared in the selected candidates and thereafter posts were offered to them and they joined against them. It was further stated that after completion of first counseling, to fill up the remaining posts, a public notice was issued on 28.6.2011 and it was an open invitation to all to appear for counseling from 6.7.2011 to 11.7.2011. For the posts of Hindi Masters/Hindi Mistresses counseling was fixed for 7.7.2011. It was case of the respondents that they appeared on the date fixed and in the fresh merit list, their names were shown in the selected candidates. Thereafter, posts were offered to them and they joined against the same. Thereafter, they received Show Cause Notice on 25.10.2012 stating that actually candidates upto the marks 62.3667 were selected but due to some mistake of the computer, letter was issued to them. They were lower in merit having secured less marks than the marks as mentioned above. Reply was filed by the respondents to the said Show Cause Notice. Thereafter, detailed information regarding vacant posts was not supplied despite request which compelled the respondents to approach this Court challenging Show Cause Notice dated 13.12.2012 which was set aside by the learned Single Judge vide the impugned judgment. Hence, this appeal. Before the learned single Judge, it was categoric stand of the State Government that in the second counseling, candidates having secured marks upto 62.3667 were called for counseling. As the respondents have secured less marks than the cut off marks, they were not supposed to appear in counseling. Further due to some mistake, their certificates were checked up and they were shown in the merit list. When mistake was detected, Show Cause Notice was issued. In the reply filed by the State, in para No. 2 (Preliminary Submission), it was stated as under: - "2. That in this regard it is submitted that the Department had given an Advertisement dated 23.09.2009 in the Daily Newspaper for eligible candidates for various posts in different subjects including for the posts of Hindi Master/Mistresses in the Education Department. The petitioners applied for the posts of Hindi Master/Mistresses in general category. They were registered with registration No. 20063666, 20074273 of 20057635 with the department for said posts and their merit calculated by the Department was 62.2999, 62.2862 and 62.2742 respectively. The department made first counseling for the selection of Hindi Master/Mistresses as per the merit of the candidates, since the merit of the petitioners was less than the merit of last candidate selected in first counseling, therefore, they were not selected in the first counseling. After the first counseling, some posts of Hindi Master/Mistresses remained vacant. In order to fill these posts, the department held second counseling from dated 06.07.2011 to 11.07.2011 and counseling for Hindi posts was held on 07.07.2011. The department issued second provisional merit list of candidates for posts of Hindi Masters/Mistresses along with names of the petitioners whereas the merit of last candidate was shown as 62.1667. The petitioners were issued appointment orders dated 04.11.2011 accordingly as per their merit in the selection. It is pertinent to mention here that the merit of the last candidate selected in the second counseling was shown as 62.1667 that was wrong due to clerical mistake/printing mistake, however, it was 62.3667. However, the petitioners were selected even being in lower merit and due to this mistake. Since the merit of the petitioners was less than the merit of the last candidate (62.3667) they were otherwise not entitled for appointment of Hindi Master/Mistresses. After coming into the knowledge, the Chairmen of the Selection Committee, recommended vide letter dated 23.08.2012 for the removal of the seven selected candidates, who were selected due to clerical mistake/computer mistake otherwise they were lower in merit than the last candidate merit i.e. 62.3667. As per the recommendation of the Chairman, Selection Committee, the department issued show cause notice vide order No. 20/272 - 2012 Establishment 2(6) Dated 25.10.2012 to the concerned all the seven candidates, including the petitioners of this petition, why their services not be terminated since their merit is less than the merit of the last candidate 62.3667. The petitioners did not reply to said show cause notice properly rather raised queries. Vide letter dated 01 -11 -12. The Department replied the said letter vide letter dated 13 -12 -12 by answering the questions in letter (P -7) and stated that the Department has given appointment only to two candidates with merit no. 62.68 and 62.5 and there are about 90 candidates between the merit of the petitioners and merit of the last candidate selected (62.3667). Since the merit of the petitioners was less than the merit of the last candidate merit 62.3667 and they were selected by ignoring the other eligible candidates having more merit than the petitioners therefore they cannot be allowed to continue their services with the Department and also the candidates having more merit will lose their right to Appointment. After getting no proper representation from the petitioners, the department finally considered the cases of the petitioners on merit and found that the petitioners have lower merit than the last candidate merit and therefore passed order dated 20.12.2012 on the basis of record with effect to terminate the services of the petitioners immediately in each respective case (Copy Annexed as Annexure R -1, R -2 and R -3),which are fully justified in the eyes of law.";