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Krishan Kumar, Assistant Secretary, Market Committee, Bhiwani Vs. Haryana State Agricultural Marketing Board, Panchkula [1997] INSC 357 (31 March 1997)

K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

O R D E R Leave granted This appeal by special leave arises fromthe judgment of theDivision Bench of the Punjab and Haryana High Court, made onMay 29,1996 inCWP No.16133/95.

The admitted position isthat an advertisement was published by the respondent for recruitment to the post of Assistant Secretary of theHaryana StateAgricultural Marketing Board. Out of 11 posts notified forrecruitment, six posts werereserved for general candidates, 3 posts for Scheduled Caste and 2posts for Other Backward Classes.

Pursuant thereto, the appellanthad appealed for considerationof his claim for appointment. The qualifications prescribed under the Haryana State Agricultural Marketing Board Service Rules, 1974 (for short, the `Rules') are thus:

"(1) Graduateof recognised University; and (2) Adequate knowledgeof the PunjabAgricultural Produce Marketing Act, Rules and Regulations; and (3) At lease threeyears experience in Government office/Semi GovernmentBody." The appellant hadthe experience of working in Haryana Warehousing Corporation(i) from 6.10.1984 to 4.1.1985,(ii) from 7.1.1985 to 31.3.1985, (iii) from6.5.1985 to 28.7.1985, (iv) from 30.7.1985 to 29.10.1985and (v)from 2.11.1985 to 5.12.1985. He also had the experience of working in Hissar Nationalcooperative House Building SocietyLtd., Hissar between 24.4.1988 and 30.4.1991. On the basis thereof, he was selected and appointed. He joinedduty on August 1, 1992. Subsequently, Writ Petition No. 161/95 was filed and by judgment dated January 2, 1995, theHigh Court directed the Board to examine whether theappointments were duly made and appointees were duly qualified in accordance withrules. It was directed further that in case, the candidateswere not qualified, theappointments must be deemed to havebeen set aside. In furtherance thereof, a notice was given to the appellant producethe record.

Accordingly, the appellant produced the record. The authority considered the same and held thus:

"Shri Krishna Kumar, respondent No.6 has produced the experience certificate of the Hissarnational Cooperative HouseBuilding Society Ltd., Hissar wherehe has worked as Accountant-cum-Clerk from 24.4.1988 to30.4.1991. His appointment is also subject to verification of the experiencecertificate submitted by him. Incase,the experience certificate is notfound genuine as per rules, the Board reserves the right to cancel his appointment." Itis stated that they have examined the certificate and found it to be genuine but Hissar Cooperative House Building Society was not found to be a Semi-Government Society. No contribution of the Government fund was made to the society.Accordingly, his appointmentcame to be terminated. Calling that order in question, he filedwrit petition whichwas dismissed.Thus, this appeal by special leave.

The notice was issue by this Court on September 30, 1996 wherein itwas stated as under:

"It is reported on instruction by the learned counsel for the petitionerthat the petitioner is now of 36years of age and he will not be qualified for any other appointment. He also states that the petitioner has meritorious record to his credit. Therefore, he requests that a notice may be issued to the respondent to consider his case on sympathetic consideration." Counter-affidavit has been filed by the respondent statingthat they arenot willing to consider his case sympathetically. They have stated in their counter-affidavit in para 3(f) that the Hissar National Cooperative House Building Society is nota semi-Government body as per report of the Registrar, CooperativeSocieties, Haryana. Thus he does not fulfill the qualification prescribed under the rules.

The learned counsel for the appellant has contended that he not submitted any illegal certificate. He has submitted the certificates before the authority which was found to be correct. He has sufficient experience before he was appointed as Assistant Secretary. It is further urged that though it is now found that it is not a semi-Government body, he maybe considered to be appointed with the requisite qualifications and the experience. He has also brought to our notice that the rules had been amended deleting the requirement of 3 years experience, by the order of the Government dated October 6, 1995, whereas the order of termination came to be made on October 31, 1995. Thus, his case may beconsidered on the footing that he had at the relevant time sufficient experience. The learned counsel for the respondenthas stated that sincethe qualification is one of the condition, as foundby the High Court and at the relevant time,he didnot possess that qualification, the dismissal of him fromserviceis in accordance with the rules.

Inview ofthe respective contention, the questionthat arises for consideration is: whether the viewtaken by the High Court is correctin law? Strictly speaking, theHigh Court order does not suffer from anyillegality for the reason that ason thedate ofapplication forselection he did not have the prescribed 3years experience as required by theRule. In other word, 3 years experiencewas required as necessary qualification for appointment as Assistant Secretary. It is seenthat during the period between his appointment ofthe writ appointment onJanuary10, 1992 and allowing of the writ petition, he has gained sufficient experience of working as Assistant Secretary and his performance ofthe duties as Assistant Secretary has not also been disputed or any fault found by the respondent. It is seen that he is now barred by age.Under these circumstances,we think that the respondent should reconsider thematter afresh and takeappropriate decision to appoint him as Assistant Secretary.

Inview of the above legal position and also the factualsituation, theappeal is allowed and writ is issued but, inthe circumstance, without costs.

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