Supreme Court: In an appeal against the order passed by the Division Bench of Punjab and Haryana High Court relating to recruitment and appointment to the posts in the Haryana Civil Service (Executive Branch), the division bench of MM Sundresh and Aravind Kumar*, JJ. while setting aside the impugned order and affirming the Single Judge order, held that as on the date of consideration, disciplinary action was contemplated against the respondent, therefore he was rightly held to be ineligible for selection of his name in Register A-1.
Background:
The process of recruitment to the posts in the Service are governed by Haryana Civil Service (Executive Branch) Rules, 2008 (‘Rules, 2008’). Part II of the Rules is titled ‘Recruitment to Service’. For a person to be appointed in the Service, Rule 73 requires that such person’s name must be found in ‘one or other of the registers of Accepted Candidates to be maintained under these rules. Rule 84 requires the Chief Secretary to maintain ‘Registers of Accepted Candidates’. Further, Rule 17 provides that the Government of Haryana shall make appointments to the Service from amongst the candidates whose names are entered in the various registers on a rotational basis.
The respondent was one among several candidates who was seeking appointment to the post in the Service. He was appointed to the Department of Revenue and Disaster Management in 2008 as a Naib Tehsildar. The Department has found the respondent, among several others, to be ineligible for selection to Register on the ground that he did not satisfy the eligibility condition set out in subclause (iii) of clause (a) of Rule 9.
According to the Department, though the respondent was not facing any disciplinary proceedings, there was action being contemplated against him as on date of consideration, which resulted in him being declared ineligible for selection.
However, as per the respondent he was neither facing disciplinary proceedings, nor was any action being contemplated against him, and therefore, the action of declaring him ineligible was erroneous, thus he challenged before the High Court. The Single Judge dismissed the writ petition filed by respondent. On appeal, the division bench of the High Court has set aside the order of the Single Judge and directed the State to take steps to consider the case of respondent for appointment from Register A-1. Thus, the State filed the present appeal.
Issues and Analysis:
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On a reading of Rule 9, letter dated 30-05-2019 and letter dated 09-07-2019, whether 01-11-2018 can be said to be the cut off period uniformly applicable qua all the eligibility conditions provided in Rule 9(1)(a) and (b) or is such date to be considered as the cut-off date only for the purpose of determining age related eligibility?
The Court took note of Rule 9 of the 2008 Rules and noted that it was amended by notification dated 16-02-2017. Further, in the communication dated 17-04-2017 it was indicated that officers should fulfill the conditions of eligibility as on 01-11-2016 as prescribed. The Court further noted that no action was taken in the direction of filling up vacancies pursuant to communication dated 17-04-2017. Nearly 10 years later, in 2019, a fresh communication was issued from the Chief Secretary’s Office requesting the Commissioner to forward a list of eligible District Revenue Officers/ Tehsildars not more than five times the number of vacancies as per rules for the aforesaid recruitment.
Ther Court noted that the respondent has not challenged the validity of Rule 9 (1)(a)(iii), which requires, as a matter of eligibility for selection, that no disciplinary proceeding be pending, or action be contemplated against him. Thus, as the rule disentitling a candidate for selection if disciplinary proceeding is pending or contemplated is not under challenge in these proceedings, the Court applied the Rule as it is.
Concerning the cutoff date, the Court said that the Single Judge was correct in concluding that 01-11-2018 was meant only for the purpose of determining the age-related eligibility as provided for in Rule 9(1)(a)(ii). The cut off for the purpose of determining eligibility in so far as Rule 9(1)(a)(iii) has to be determined as on date of consideration. Further, it said that the finding of the division bench that the rule itself clearly provides for a cut-off date qua all the clauses in Rule 9(1)(a) appears to be perverse and without any basis.
The Court referred to letter dated 09-07-2019, wherein it has been stated that the eligibility criteria concerning ‘pending disciplinary proceedings, vigilance clearance and integrity’ was to be considered up to the date of consideration in both cases. The cut-off date was relevant only to decide the question of how much of the ACR and experience had to be considered and till what period. Such date was never meant to operate as the date against which all the eligibility criteria had to be measured against.
Therefore, the Court said that it cannot be held that Rule 9 contemplated a uniform cut-off date qua all the conditions of eligibility. 01-11-2018 was relevant only in so far as Rule 9(1)(a)(ii) was considered. For the purpose of Rule 9(1)(a)(iii), the relevant date for determining if there was any disciplinary action contemplated or pending against a candidate “is the date of consideration,” which is the date on which the Committee had recommended names to the Commission under Rule 9(2), which, in the facts of this case would be 31-08-2019.
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Whether the respondent satisfied the other eligibility conditions, and whether it can be said that there was any disciplinary action pending or contemplated against him as on date of consideration?
The Court interpreted the word ‘‘contemplate’ in the context of Rule 9(1) (a)(iii). It said that Rule 9 (1)(a)(iii) mandates that not only must there be no pending disciplinary proceeding but there must also not be any action contemplated against the candidate as on date of consideration.
It said that the word contemplate has different meanings, it can mean ‘to think deeply at length’; ‘to have in view as a probable intention’; to think about. According to the Court, the second meaning comes closest to the sense in which the rule-maker intended the rule to operate.
The Court reiterated that a disciplinary proceeding is said to be pending when a formal charge-sheet is issued to the employee. The stage at which action can be contemplated has to come before the time at which a disciplinary proceeding becomes pending.
The Court noted that the reason for declaring the respondent ineligible for selection as per Rule 9 was on the ground that ‘decision has been taken on file to charge sheet him under Rule 7’. The main allegation against him is that he was directed to act as Duty Magistrate during the Haryana Teacher’s Eligibility Test, 2018 and he remained absent from this duty and as such he was negligent in performing his official duties.
Thus, it was held that as on the date of consideration, disciplinary action was contemplated against the respondent, he was rightly held to be ineligible for selection of his name in Register A-1.
[State of Haryana v. Dinesh Singh, 2023 SCC OnLine SC 1680 , decided on 14-12-2023]
