Punjab-Haryana High Court
Ajay Malik, Excise And Taxation ... vs State Of Haryana on 8 September, 2000
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. By this common judgment, two Civil Writ Petition Nos. 17792 of 1999 and 5037 of 2000 can conveniently be disposed of together as facts in both the petitions, by and large, are identical. For the sake of convenience, detailed facts are being taken from Civil Writ Petition No. 17792 of 1999.
2. The petitioner seeks a writ of mandamus to appoint him in Haryana Civil Services (Executive Branch) from the date the candidates lower in merit had been appointed with all consequential benefits.
3. The relevant facts are that the Haryana Public Service Commission had advertised various posts of Haryana Civil Services (Executive Branch) and Allied Services. It was dated 30.8.1989. The petitioner applied for the said posts. The result was declared in June, 1992. The petitioner was offered the post of Excise and Taxation Officer and he joined in the year 1993. There were in all 12 posts of Haryana Civil Services (Executive Branch) out of which seven were meant for general category. The merit list had been published and it is to the following effect :-
Sr.No. Roll No. Name
1. 3432
Jagdip Singh
2. 374 Anita Yadav
3. 2098 Mardccp Singh 4 5752 Ramesh Chanter Bidhan
5. 3474 Mohinder Singh Yadav
6. 7581 Sumedha Kataria
7. 1114 Dhupinder Singh
8. 8377 Virender Singh Hooda
9. 52 Ajay Malik
10. 190 Amarjit Singh Mann
11. 494 Arvind Mathan
12. 1650 Dinesh Singh Yadav In this process, the name of the petitioner Ajay Malik was at serial No, 9 while that of Arvind Malhan was at serial No. 11 in the merit list.
Only seven candidates of general category were appointed, namely, upto Bhupinder Singh, in the Haryana Civil Services (Executive Branch). Virender Singh Hooda was earlier working as Excise and Taxation Officer. He had opted for Haryana Civil Services (Executive Branch) but was not appointed. Petitioner Ajay Malik was the person next in the merit list. He was offered the post of Excise and Taxation Officer. Similar post was offered to Amarjit Singh Mann at serial No. 10 and Arvind Malhan who is next to Amarjit Singh Mann.
4. Virender Hooda, Amarjit Singh Mann and Dinesh Singh Yadav filed writ petition in this Court which was dismissed. They preferred an appeal in the Supreme Court. The Supreme Court allowed the said appeal with the following findings :-
"The view taken by the High Court that the administrative instructions cannot be enforced by the appellant and that vacancies became available after the initiation of the process of recruitment would be looking at the matter from the narrow and wrong angle. When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same.
Therefore, we have no hesitation in directing the respondents to consider the cases of the appellants for appointment to posts of Haryana Public Service (Executive Branch). However, it is made clear that the appellants shall be filled to the post ranking below to those who had been selected along with the appellants at the time of recruitment made pursuant to result declared on June 19, 1992. The appellants will be fitted in appropriate posts and they will be accorded appropriate scale of pay by giving them the benefit of increments, if any, but they will not be entitled to any monetary benefits for the period for which they have been kept out of employment. Let such action be taken by the Government expeditiously but not later than a period of three months."
The appeal is accordingly allowed. However, in the circumstances of the case, there will be no order as to costs."
5. The petitioner submitted representation for him to be appointed but he was not appointed in the Haryana Civil Services (Executive Branch) though the petitioner is senior to those who have been appointed in pursuance of the order of the Supreme Court. By virtue of the present petition the petitioner assails the action of respondent No. 1 in not appointing the petitioner though he is senior to the persons who have been appointed.
Similar is the position of Arvind Malhan in the connected Civil Writ Petition No. 5037 of 2000 because he claims seniority over Dinesh Singh Yadav,
6. The writ petition as such has been contested. Respondent No. 1 filed the reply. The basic facts are not in controversy. The petitioner was stated to have been appointed as Excise and Taxation Officer in the year 1993. Thereafter, it is claimed that two batches of Haryana Civil Services (Executive Branch) have been recruited in the years 1996 and 1998. After the lapse of seven years, the present writ petition was stated to be suffering from laches. It has further been pleaded that in the year 1989, twelve vacancies were advertised for direct recruitment to the Haryana Civil Services (Executive Branch). This advertisement included 13 posts of Allied Services for which a common test was held. Out of twelve vacancies of Haryana Civil Services (Executive Branch), seven vacancies were of general category. A combined examination was held for making appointment to the Haryana Civil Services (Executive Branch) and other Allied Services in the year 1991. The petitioner belonged to general category. He was not within the merit position for appointment to the Haryana Civil, Services (Executive Branch). Therefore, he was only offered the post of Excise and Taxation Officer where he had joined.
Yet another plea offered was that appointment through direct recruitment cannot be made beyond the number of vacancies. Since the number of vacancies advertised were seven, more person than that cannot be appointed. Furthermore, it is asserted that the service rules relating to recruitment to the Haryana Civil Services (Executive Branch) prescribes the ratio of recruitment from different sources which is required to be strictly followed by the appointing authority. The number of posts for direct recruitment if increased subsequently will violate the said ratio. Thus, there was no justification for offering the appointment to the petitioner.
7. In the written statement filed on behalf of the Haryana Public Service Commission, similar pleas have been offered that the writ petition is highly be-
lated and that persons more than advertised posts could not be appointed.
8. Before proceeding further, we deem it necessary 10 make a reference to the decision of the Supreme Court in the appeal filed by Virender S. Hooda and others v. State of Haryana and another (Civil Appeal No. 2286 of 1999 arising out of Special Leave Petition (Civil) No. 478 of 1998) decided on 3.4.1999 : 1999(2) SCT 652 (SC). While allowing the appeal, the Supreme Court directed as under :-
"...Therefore, the Government ought to have considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection..."
Thereafter it was held as under:-
".... However, it is made clear that the appellants shall be fitted to the post ranking below to those who had been selected along with the appellants at the time of recruitment made pursuant to result declared on June 19, 1992. The appellants will be fitted in appropriate posts...."
It is abundantly clear from the tenor of the judgment of the Supreme Court that the Government ought to have considered the case of those appellants as per the rank obtained by them if they came within the range of selection and that the appellants should be fitted to the post ranking below to those who had been selected.
9. Admittedly, petitioner Ajay Malik was above all the persons and petitioner Arvind Malhan is above one of the persons in the merit list who had since been appointed to Haryana Civil Services (Executive Branch) in pursuance of the directions of the Supreme Court. The principle that the Stale shall not discriminate similarly situated person is well known. The Supreme Court in the decision rendered in the case of Shri Ram Krishna Dalmia and others v. Shri Justice S.R. Ten-dolkar and others, AIR 1958 S.C. 538, referred to the said principle enshrined under Article 14 of the Constitution and held that differentia could be on reasonable classification which could be geographical, according to objects or occupations or the like. There must be a nexus between the basis of classification and the object of the Act under consideration. It was further held as under:-
"...It is now well established that while Art. 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that the different iamust have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different basis, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the objects of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure."
10. In the case of E.P. Royappa v. State of Tamil Nadu and another, AIR 1974 SC 555, new ice was broken and it was held that Articles 14 and 16 of the Constitution strike at the State arbitrariness in action and ensure fairness and equality in treatment. The State action should be based on valid relevant principles. The Supreme Court went on to explain Articles 14 and 16 of the Constitution and held as under :-
".....In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to pub-tic employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination...."
Thereafter, it was further explained as under :-
"Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14 and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similar situated and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16, Mala fide exercise of power and arbitrariness and different lethal radiations emanating from the same vice in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16."
11. Same views were echoed in the decision of the Supreme Court in the case of Smt. Maneka Gandhi v. Union of India and another, AIR 1978 SC 597 and also in the case of Ajay Hasia etc v. Khalid Mujib Sehravardi and others, AIR 1981 SC 486. In fact in Ajay Hasia's case (supra). Articles 14 and 16 were again explained and it was held as under :-
"The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now what is the content and reach of this great equalising principle ? It is a founding faith, to use the words of Bose, J..."a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
In other words, if there is injustice to the petitioner, necessarily the Court will not hesitate in protecting his right. The arbitrariness will not be tolerated.
12. On behalf of the respondents, it was asserted that there is inordinate delay in filing of the petition because the result had been declared many years ago. However, it cannot be lost sight of that the persons who were below in the merit list only were allowed to be so entitled after the decision of the Supreme Court dated 13.4.1999. It was thereafter that the right accrued to the petitioners because the persons below in merit than the petitioners had been appointed. In that view of the matter, it cannot be termed that there is any inordinate delay which may prompt us to reject the case on the ground of laches.
In fact, we are constrained to observe that when similarly situated persons who were below in merit than the petitioners had been given certain benefits by virtue of the judgment of the Supreme Court, necessarily the same should have been given to all concerned.
13. On behalf of the respondents, it was further highlighted that after the examination of 1989, two more examinations had been held. It will not only affect the seniority but will create administrative problems. Indeed, we have no hesitation in rejecting the said contention. The said two examinations had been held before the Supreme Court allowed the appeal filed by the persons who were below the petitioners in the merit. This contention, thus, was open to the respondents to be raised before the Supreme Court but was not raised. Therefore, it has no legs to stand.
14. Another contention raised was that, in any case, appointment cannot be made beyond the advertised vacancies. Reliance in this regard was placed on the well known decision of the Supreme Court in the case of Hoshiar Singh v. State of Haryana, 1993(5) SLR 36 : 1993(4) SCT 291 (SC). Though the principle of law is not in controversy, but the peculiar facts cannot be ignored. Before the altar of justice, the said principle must take a hind seat. Certain persons who were below the petitioners in merit had been appointed. In that event, even they were, as per respondents, outside the advertised posts. If this is the situation, the right of the petitioners could not be defeated.
is appointed, the senior person in the merit list necessarily would have a right unless there are cogent reasons to deny the same. In the present case, the same is absent.
15. In this connection, reference with advantage can be made to decision of this Court in the case of Krishna Kumar v. State of Haryana and others, 1992(1) Recent Services Judgments 173. In the cited case, this Court held as under :- "Though by mere selection by the Public Service Commission, no candidate could claim as a matter of right to the appointment to the post, but if candidate lower in selection list is appointed, the candidate higher in the selection list would be entitled to seek appointment from the date candidate lower in rank was appointed. Otherwise that would amount to denial to such person equality before law and it would be a case of discrimination. Articles 14 and 16 of the Constitution have been violated in not appointing the petitioners to the posts of Assistant District Attorneys..."
16. Same view was echoed in the decision of this Court in the case of Pawan Kumar Jain v. State of Haryana and another, 1992(3) Recent Services Judgments 443. This Court held as under :-
".. ...The petitioner could well wait forthe respondent-State to act after the judgment of the L.P.A. upholding the selection. He could only make a grievance when a person lower in merit was appointed for whatever reason may be even in pursuance of a judgment. A duty is cast on the State to make appointments strictly in accordance with the merit prepared by the selection body. Otherwise if a person higher in merit is ignored it would amount to violation of Article 16 of the Constitution of India." .
17. Once again in the case of Khushi Ram v. Banking Service Recruitment Board, 1995(1) Recent Services Judgments 550 : 1994(4) SCT 146 (P&H), a similar contention was raised.
18. Keeping in view these factors, necessarily the petition must be allowed. It is directed that the respondents will consider the cases of the petitioners for appointment to the post of Haryana Civil Services (Executive Branch). They would be ranked as per their seniority in the merits list in pursuance of the result de-ciaredon 19.6.1992. They would be given appropriate posts and be accorded appropriate pay scales by giving them the benefit of the increments but they shall not be entitled to the arrears. The directions should be complied within three months.
19. Petition allowed.