Punjab-Haryana High Court
Niranjan Singh vs State Of Haryana And Others on 20 May, 2011
Author: Permod Kohli
Bench: Permod Kohli
CWP No.3584 OF 2008 etc. 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
DATE OF DECISION: 20 .5. 2011
1.CWP No.1197 of 2009
Niranjan Singh
...Petitioner
VERSUS
State of Haryana and others
...Respondents
2.CWP No.3584 of 2008
Neha Yadav
...Petitioner
VERSUS
The State of Haryana and others
...Respondents
3.CWP No.9738 of 2009
Sandeep Singh Sihag and others
...Petitioners
VERSUS
State of Haryana and others
...Respondents
4.CWP No.271 of 2010
Baljinder Singh
...Petitioner
VERSUS
State of Haryana and others
...Respondents
CWP No.3584 OF 2008 etc. 2
5.CWP No.16118 of 2009
Pradeep Yadav
...Petitioner
VERSUS
State of Haryana and others
...Respondents
6.CWP No.15455 of 2009
Sanjeev Tinjan
...Petitioner
VERSUS
State of Haryana and others
...Respondents
7.CWP No.1822 of 2009
Arvind Kumar
...Petitioner
VERSUS
State of Haryana and others
...Respondents
8.CWP No.20315 of 2008
Abhishek Goyal and others
...Petitioners
VERSUS
State of Haryana and others
...Respondents
9.CWP No.21821 of 2008
Mukesh Yadav
...Petitioner
VERSUS
CWP No.3584 OF 2008 etc. 3
State of Haryana and others
...Respondents
10.CWP No.1236 of 2009
Nitin Pratap Singh
...Petitioner
VERSUS
State of Haryana etc.
...Respondents
CORAM
HON'BLE MR.JUSTICE PERMOD KOHLI
PRESENT: Mr.Rajiv Atma Ram, Sr.Advocate with
Mr.Nikhil Chopra, Advocate
Mr.RK Malik, Sr.Advocate with
Mr.Kohel Dev, Advocate
Mr.JK Sibal, Sr.Advocate with
Ms.Hanmeet Kaur, Advocate
Mr.Puneet Gupta, Advocate
Mr.Pankaj Jain, Advocate
Mr.Jatin Salwan, Advocate
Mr.Dheeraj Chawla, Advocate
Mr.Puneet Gupta, Advocate
Mr.Hakam Manuja, Advocate
Mr.Karminder Singh, Advocate
Mr.RKS Brar, Addl.A.G., Haryana with
Mr.Amandeep Singh, AAG, Haryana
Permod Kohli, J.
Petitioners in all these petitions are Law Graduates. Reliefs claimed CWP No.3584 OF 2008 etc. 4 being identical, these petitions are being disposed of by this common judgment. Facts relevant for the purpose of these petitions are being noticed here-in-after:-
High Court of Punjab and Haryana issued brochure in the year 2007 inviting applications for recruitment to Haryana Civil Service (Judicial Branch). This brochure contained all necessary and relevant details relating to qualifications, eligibility criteria, date for making applications, mode and method of selection, syllabus and other necessary conditions. These details are not being referred to, the same being not germane to the adjudication of the issues involved in these petitions. Apart from details referred to above, number of category-wise vacancies to be filled in through the process of selection are contained in the brochure. Since the number of vacancies is a relevant factor for the purpose of deciding these petitions, the same are being reproduced here under:-
Available number of vacant posts : 34 Category-wise details are as under:- Sr.No. Category No. of Posts Remarks 1. General 16 2. Scheduled Castes of 9 Out of these, 2 vacancies are Haryana being advertised for the third time. 3. Backward Classes of 5 Inclusive of 2 carried forward Haryana vacancies, which are being advertised for the second time. 4. Ex-Servicemen of 1 Haryana CWP No.3584 OF 2008 etc. 5 Sr.No. Category No. of Posts Remarks 5. Physically handicapped 3 Including 2 carried forwards vacancies, which are being advertised for the third time. In case of non-availability of suitable candidates against any or both vacancies, then these vacancies will be filled up from amongst the suitable candidates belonging to the category of Ex- serviceman and further in case of non-availability of suitable candidate(s) belonging to the category of Ex-servicemen then these vacancies will be thrown upon to the general category, in terms of Government instructions contained in letter No.24/5/91-3GSIII dated 22.11.1991. It is also provided in the brochure that in addition to 34 vacant
posts, 20 anticipated vacancies are being advertised, as per the judgment of the Hon'ble Supreme Court in Malik Mazhar Sultan vs. U.P. Public Service Commission and others, (2006) 9 Supreme Court Cases 507 and 2008 (XVII) SCC 703. Category-wise details of these vacancies are as under:-
"
Sr.No. Category No. of posts 1. General 12 2. Scheduled Castes of Haryana 4 3. Backward Classes of Haryana 1 4. Ex-Servicemen of Haryana 2 5. Physically Handicapped (Ortho) of 1 Haryana
It was also stipulated that number of vacancies may vary. Selection was to be made on the basis of (i) preliminary examination; (ii)Main examination; (iii)Viva-voce. It is admitted case of the CWP No.3584 OF 2008 etc. 6 parties that all the petitioners applied within stipulated period. After qualifying the preliminary examination, they were permitted to appear in the main examination and viva-voce vide notification dated 30.2.2008. Final result (general merit list) was issued on 13.2.2008 (Annexure P-7). Thereafter, on the basis of the recommendations made by the Selection Committee, appointments were made by the Government vide Memo dated 13.2.2008 (Annexure P-8). The petitioners could not be selected/appointed. Names of the appointees were accordingly entered in the concerned register maintained at High Court.
The category wise status of the petitioners is as under:- Sr.No. Name of the petitioner CWP No. Category
1. Neha Yadav 3584 of 2008 Backward Class (one)
2. Niranjan Singh 1197 of 2009 General (one)
3. Sandeep Singh Sihag, Mohit 9738 of 2009 General Sondhi, Gagandeep Singh (one) Garg
4. Pradeep Yadav 16118 of 2009 General (one)
5. Sanjeev Tinjan 15455 of 2009 General (one)
6. Baljinder Singh 271 of 2010 General (one)
7. Arvind Kumar 1822 of 2009 General (one)
8. Abhishek Goyal, Neeraj 20315 of 2008 General Goyal, Nitin Mittal and (four) Surender
9. Mukesh Yadav 21821 of 2008 Backward Class (one)
10. Nitin Pratap Singh 1236 of 2009 General (one) Total: General: 12 B.C. : 2 In view of their non-selection, some of the petitioners claimed their selection and appointment by filing representations. However, receiving no CWP No.3584 OF 2008 etc. 7 response to such representations, these writ petitions have been filed claiming following reliefs:-
"XXX XXX XXX
(iii)issue a writ in the nature of mandamus directing the respondents to consider and appoint the petitioner as Civil Judge (Jr.Division) in the Haryana Civil Services (Judicial Branch) in pursuance to the selection conducted by it, the result of which has been declared vide Annexure P-6 with effect from 13.2.2008 when other similarly situated selected in the same process have been selected and appointed and grant all consequential reliefs that flow therefrom including seniority, pay fixation, arrears of pay along with interest etc."
The petitioners are claiming their selection/appointment on the following grounds:-
(i)Out of six posts advertised for Backward Class, (5 actual + 1 anticipated) only three posts have been filled in the first instance vide notifications dated 13.2.2008 and 14.3.2008;
(ii) 12 persons have been promoted on regular basis as Additional District Judges whereas five persons were appointed as Additional District Judges on ad hoc basis for the Fast Track Courts in Haryana whereas five notified vacancies from Scheduled Caste Category remain unfilled; 12+5+5=22
(iii)On 21.11.2007, 65 posts of Civil Judges (Jr.Division) were created by the respondents, which inter alia, includes six posts for Backward Class and 13 for Scheduled Caste candidates.
(iv)As against 13 advertised vacancies for Scheduled Caste only five have CWP No.3584 OF 2008 etc. 8 been filled and remaining 9 vacancies could be utilised for appointment from the Backward Class category candidates, in view of the government instructions dated 17.8.1976, which, inter alia, provides for inter-changing of reserved category vacancies, in the event of non-availability of candidates from a particular reserved category. In this case, 9 Scheduled Caste category vacancies were to be utilized for appointment of Backward Class candidates due to non-availability of Scheduled Caste candidates.
(v)Resignation of five appointees before 31.10.2008 and one candidate from Backward Class Category on 17.4.2009 (5+1=6). Resultant vacancies on account of resignation are also to be filled in on the basis of the same selection.
It is contended on behalf of the petitioners that all the available posts are required to be filled in on the basis of select list dated 13.2.2008, in view of the Hon'ble Supreme Court judgment in the case of Malik Mazhar Sultan (supra). The petitioners have given the details of the vacancies filled in and available vacancies under various categories as under:- 1 2 3 4
"No.of Posts advertised Category Posts Filled by Balance vacant posts Selection
-------------------------------------------------------------------------------------------
General Category =16+12= 28
Posts filled up =
Balance Remaining vacant posts =
(i) Posts advertised for Scheduled Caste
(Annexure P-5 (9+4)): =13
Posts filled up: =5
Balance remaining vacant =8
(ii) Posts advertised for Backward Classes
(Annexure P-5 (5+1)) =6
CWP No.3584 OF 2008 etc. 9
Posts filled up =3
Balance remaining vacant =3
(iii) Members of Scheduled Caste appointed
in February, 2008 =5
Members of the Backward Class
promoted in 2008 =3
(iv) Posts created on 21.11.2007 =65
General =
Scheduled Caste Posts =13
Backward Class posts =6
Thus total number of vacancies available for members of the Scheduled Caste and Backward Classes are as under:-
General =
Scheduled Caste Category =26
Backward Class Category =12
Petitioner, namely, Neha Yadav in CWP No.3584 of 2008 submits that she is at Sr.No.10 in the list of Backward Class Category candidates and after appointment of three candidates from this category, she figures at Sr.No.7 next in the order of merit.
It is stated that out of 54 advertised posts (34 actual and 20 anticipated), only 34 appointments have been made in the following manner:-
General 23 Scheduled Caste 5 Backward Class 6
During the pendency of these petitions, various applications were made, in view of subsequent events. Accordingly, on the basis of the further CWP No.3584 OF 2008 etc. 10 information, additional affidavits have been filed on both the sides. On the basis of the additional information, five appointees resigned before 31.10.2008 and one Mr.Loveleen resigned on 17.4.2009. Their resignations have been accepted, as is evident from the affidavit dated 29.4.2008 filed by petitioner, Neha Yadav. It is further alleged that High Court decided to appoint one Mona Singh candidate, next in the order of merit vide decision of the Committee dated 14.7.2008 on the basis of her merit in the selection from General Category. On 5.2.2009, the High Court passed following interim order in CWP No.3584 of 2008:-
"Adjourned to 26.2.2009.
In the meantime two posts of HCS (Judicial) shall be kept vacant. It is further made clear that it would not be open to the respondents to take the plea of the select list having expired due to efflux of time."
There are four petitioners in CWP No.20315 of 2008, all from General Category. They are at Sr.Nos.42 to 45 in the merit list dated 13.2.2008. It is stated that General Category candidates upto merit no.40 already stands appointed and Mona Singh who was next in the merit at Sr.No.41 also stands appointed. One candidate, namely, Arvind Kumar in CWP No.1822 of 2009 belongs to General Category and figures at Sr.No.50 in the merit list. It is alleged that candidates from Sr.Nos.42 to 45 are writ petitioners in CWP No.20315 of 2008 whereas candidate at Sr.No.46 has not approached the Court. Candidate at Sr.No.47 has joined Punjab Civil Services (Judicial Branch) whereas candidates at Sr.Nos.48 and 49 belonging to Backward Class Category stand appointed vide subsequent notification dated 14.3.2008 and this petitioner is next in the merit in CWP No.3584 OF 2008 etc. 11 General Category. Petitioner, Pradeep Yadav in CWP No.16118 of 2009 who also belongs to General Category falls at Sr.No.63 in the merit list. In CWP No.9738 of 2009, there are three petitioners, namely, Sandeep Singh, Mohit Sondhi and Gagandeep Singh belonging to General Category. They stand at Sr.Nos.432, 267 and 128 respectively in the final result (not the merit list). Petitioner Niranjan Singh in CWP No.1197 of 2009 belonging to General Category is at Sr.No.79 in the merit list. Petitioner Mukesh Yadav in CWP No.21821 of 2008 belonging to BC Category is at Sr.No.11. Petitioner Baljinder Singh in CWP No.271 of 2010 belonging to General Category is at Sr.No.47 in the final select list. Petitioner Sanjeev Tinjan is General Category candidate. His merit position is not reflected.
Recruitment to the HCS Judicial Service is governed and regulated by statutory rules, namely, Punjab Civil Services (Judicial Branch), Haryana Rules, 1951 including the amendments made by the State of Haryana. By virtue of an amendment notification dated 23.3.2007, Punjab Civil Services (Judicial Branch) Rules 1951 were amended. 34 posts of Civil Judges (Jr.Division) lying vacant were to be filled up through special recruitment on the recommendations of the Selection Committee constituted for the purpose. The Selection Committee was constituted under the rules comprising of: (i) three Judges of the High Court of Punjab and Haryana nominated by the Hon'ble the Chief Justice, of whom the senior most has to be the chairman; (ii) the Chief Secretary to Government of Haryana and
(iii) the Advocate General, Haryana and four legal remembrancers and Secretaries to Government of Haryana and Legislative Department. All other provisions in the existing rule regarding eligibility, age, educational qualifications, conduct of examination etc. were to remain same. Part B of CWP No.3584 OF 2008 etc. 12 the original rules deal with the submission of applications whereas Part C deals with the examination of candidates. Rule 8 of Part D was amended pursuant to the judgment of the Hon'ble Supreme Court in Malik Mazhar Sultan (supra). Amended Rule reads as under:-
5.In the said said Rules, in part D-
(i)for rule 1, the following rule shall be substituted, namely-
"1.The names of candidates selected by Government for appointment as Civil Judges (Junior Division), under rule 10 and 11 of the Part C shall be entered in the High Court Register in the order of selection to the extent of 30% more than the advertised vacancies, so as to meet any contingency for the advertised post remaining unfilled for any reason."
(ii)rule 8 shall be omitted.
Separate replies have been filed by the State and on behalf of the High Court. While admitting the vacancies notified through the brochure and creation of 65 vacancies during the pendency of the writ petitions, the only contention raised by the State is that all unfilled vacancies on completion of the selection process and occurring/created after advertisement are to be advertised again to enable all eligible candidates to apply and seek their consideration for appointment. It is further stated that the grievance made by the petitioners has no legal basis. High Court also filed a short affidavit. One of the pleas raised is that vacancies more than the advertised number cannot be filled. To support this contention, learned counsel for the State relies upon the judgment in Virender Singh Hooda and others vs. State of Haryana and another 2005(1) RSJ 70. Affidavit filed on behalf of the High Court reveals that out of 54 advertised vacancies (34+20), 53 stand CWP No.3584 OF 2008 etc. 13 filed up and one post has been reserved which is subject matter of CWP No.15130 of 2007. Referring to the judgment of Hon'ble Apex Court in Malik Mazhar Sultan (supra), the stand of the High Court is that in compliance with the orders of the Supreme Court, 20 anticipated vacancies were advertised and have also been filled up. Further stand of the High Court is that mere selection does not create a right in favour of the petitioners.
Due to certain ambiguities regarding the vacancy position, which, inter alia, also includes the new creations, resignations and fresh appointments etc., this Court passed an order dated 3.9.2009 seeking information from the High Court in respect of the points indicated therein, the same shall be referred to here-in-after. Pursuant to the aforesaid directions, the High Court filed affidavit dated 18.9.2009 of Virinder Aggarwal, Registrar (Rules), Punjab and Haryana High Court, point wise reply contained in the affidavit is as follows:- Point (i)category-wise General 42
vacancy position on the Scheduled Caste 39+(3) 24 date of issuance of fresh 23+1 advertisement dated Backward Class 02
14.9.2008 for Haryana Ex-serviceman 06 PCS (Judicial) Physically handicapped 04 (Ortho) Total 78 74+4 CWP No.3584 OF 2008 etc. 14 Point (ii)whether any unfilled No unfilled vacancy arising out of vacancy from the earlier selection advertisement notification dated 23.3.2007 was included in the fresh advertisement arising out of advertisement dated 14.9.2008.
notification dated 23.3.2007 was included in the fresh advertisement, if so, the number of such vacancies with category-wise break-up;
Point No.(iii)after filling 54 One General Category vacancy accrued on
advertised vacancies, whether any account of joining of Shri Sushant
Changotra in the cadre of PCS (JB) on
vacancy became available as
3.6.2008, 8 more candidates also resigned
dropped out vacancy on account of
from the post of Civil Juge (Jr.Divn.) in the
abandoning or resignation, if so,
cadre of HCS (JB), which are as follows:-
number of such vacancies with
category-wise break up
Sr.No. Name of the candidates Category belongs to Date of acceptance of
S/Shri/Ms. resignation by the
Haryana Govt.
1. Parshant Sharma General 24.10.2008
2. Jatindra Singh General 24.10.2008
3. Monika Saroha General 24.10.2008
4. Chetna Singh General 24.10.2008
5. Lovleen BC 28.4.2009
6. Gomati Manocha General 28.4.2009
7. Ekta Gauba General 20.7.2009
CWP No.3584 OF 2008 etc. 15
Sr.No. Name of the candidates Category belongs to Date of acceptance of
S/Shri/Ms. resignation by the
Haryana Govt.
8. Dheeraj Mor General 3.9.2009
Point No.(iv)whether the vacancies Pursuant to the decision of the selection mentioned in paragraph (iii) above and appointment Committee of the High Court dated 28.8.2008, Ms. Mona Singh at were filled up, the manner and dates Sr.No.41 of the select list of HCS (JB) of appointment with details of the from the General Category was appointed candidates and the categories to by the Haryana Government on 17.7.2009.
which they belong Point No.(v)whether 65 additional 65 Posts of Civil Judge (Jr.Division) were vacancies created during the created by the Haryana Government vide letter dated 21.11.2007. These posts were pendency of the first selection notified in the fresh advertisement dated initiated in the year 2007 were 14.9.2008.
notified for fresh selection vide
advertisement dated 14.9.2008,
category-wise details thereof.
Category wise break up of these vacancies
Category Number of Posts
General 41
Scheduled Caste (20%) 13
Backward Class (10%) 06
Ex-serviceman (05%) 03
Physically Handicapped (Ortho.) (03%) 02
CWP No.3584 OF 2008 etc. 16
Category Number of Posts
Total 65
Point No.VI Retire- Promotions from Promotions Death Resignation
ment 23.3.2007 to After
14.9.2008: 14.9.2008
(vi)vacancies NIL G- 6 One vacancy 9
accruing due due to the
Total 16 SC 4
death of Ajay G 8
to General- 9 BC 3 Kumar BC 1
retirement, Aggarwal on
S.C.- 3
promotion, 14.5.2008
death, BC - 2 General
resignation Category
etc. after the
completion
of the
process of
selection
initiated vide
Notification
dated
23.2.2007
(category
wise)
In the affidavit of Mr.Aggarwal, the number of vacancies becoming available were not specified clearly, though details of promotions were given. Thus vide order dated 12.10.2010, a further direction was issued to the High Court to file fresh affidavit giving details of the vacancies becoming available on account of promotion, retirement, resignation and death of HCS (Judicial Branch) between the date of advertisement dated 23.3.2007 to 6.8.2009, date of issuance of next select list. In response to this direction, an additional affidavit has been filed by Joint Registrar-cum- OSD, Punjab and Haryana High Court with the following details of the vacancies during the aforesaid period as under:-
Sr.No. Vacancies became available Number of vacancies
1. On account of promotion of HCS (JB 35 Officers) CWP No.3584 OF 2008 etc. 17 Sr.No. Vacancies became available Number of vacancies 2. Due to resignation of HCS (JB) Officers 10 3. Due to death of HCS (JB) officers 01 4. Due to voluntary/premature retirement 01 It has come on record in the affidavit of Government of Haryana filed in CWP No.1197 of 2009 that all the 54 vacancies notified vide advertisement issued in the year 2007 have been filled up in two phases i.e. 13.2.2008 and 14.3.2008 in the following manner:-
Category Vacancy Actual vacancies Posts filled Posts filled Total shown in the that were available up in the first up in the advertiseme on reconciliation phase i.e. second phase nts with the data made 13.2.2008 i.e. 14.3.2008 available by the Hon'ble High Court (1) (2) (3) (4) (5) (6) General 28 29 23 17 40 Scheduled 13 11 5 - 5 Castes Backward 6 9 3 6 9 Classes Ex- 3 2 - - -
servicemen Physically 4 3 - - -
handicappe d persons Total 54 54 31 23 54 Result of 2007 advertisement was declared on 13.2.2008 whereas the result of subsequent selection for which advertisement was issued on 14.9.2008 was declared on 1.7.2009 and the select list notified on 6.8.2009.
The entire argument of the petitioner is based upon judgment of CWP No.3584 OF 2008 etc. 18 Malik Mazhar Sultan (supra). While considering the eligibility of the appointees to Judicial service in the State of UP, Hon'ble Supreme Court issued certain general directions to all the State Governments, U.Ts and the High Courts. These directions are contained in paragraph 23 of the judgment which reads as under:-
"23.It is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of Judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that system works automatically and there is no delay in filling up of vacancies. The dates for taking these steps can be provided for on the pattern similar to filling of vacancies in some other services or filling of seats for admission in medical colleges. The schedule appended to the Regulations governing medical admissions sets out a time schedule for every step to be strictly adhered to every year. The exception can be provided for where sufficient number of vacancies do not occur in a given year. The adherence to strict time schedule can ensure timely filling of vacancies. All State Governments, Union Territories and/or High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled. All State Governments, Union Territories and High Courts are directed to file within three months details of the time schedule so fixed and date from which time schedule so fixed would be CWP No.3584 OF 2008 etc. 19 operational."
In response to the directions contained here-in-above, some of the State Governments/High Courts made responses/suggestions. Taking note of such suggestions, the Hon'ble Supreme Court in Malik Mazhar Sultan-2 (supra) issued various directions by fixing time schedule for appointments/promotions, holding the examinations etc. at different levels in the hierarchy of subordinate judicial service in respect of the High Courts/UTs. For the purpose of the present writ petition, directions in respect of appointment to the post of civil Judge (Jr.Division) only relevant. Such directions contained in paragraphs 14 and 15 which are reproduced as here under:-
"14.The select list prepared for all categories of officials shall be valid till the next select list is published.
15.We further direct that ten percent of unforeseen vacancies would be in respect of sanctioned posts and not vacancies occurring in a particular year."
Apart from above judgments, petitioners have also referred to various other judgments to support their contention that the merit list prepared by the Selection Committee survives till the next selection and the candidates next in the merit are required to be appointed from the select list.
In the case of Gujarat State Dy. Executive Engineers' Association v. State of Gujarat, 1994(3) SCT, the Hon'ble Supreme Court posed three questions- (i) what is waiting list; (ii)can it be treated as a source of recruitment from which candidates may be drawn as and when necessary and (iii)how long can it operate?
Answering the first question, Hon'ble Supreme Court observed as CWP No.3584 OF 2008 etc. 20 under:-
"8.A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate..."
In respect of question no.(ii), it has been observed as under:-
"9.A waiting list prepared in an examination conducted by the Commissioner does not furnish a source of recruitment. It is operative only for the contingeucy that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up person in order merit from the waiting list. ..."
Regarding the third question, it has been observed as under:-
"8.How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. Whenever selection is held except where it is for single post, it is nonmlly held by taking into account not only the number of vacancies existing on the date when advertisement is- issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected can-didates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed one or the other selected candidate does not join. But once the selected candidates CWP No.3584 OF 2008 etc. 21 join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. She has no vested right except to the limited extent or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons..."
In the case of Madan Lal and others vs. State of Jammu & Kashmir and others, (1995) 3 Supreme Court Cases 486, only 11 vacancies of Munsifs were advertised by the Jammu and Kashmir Public Service Commission. The Commission recommended 20 candidates. Considering the right of the candidates beyond 11 advertised posts, the Hon'ble Supreme Court observed as under:-
"23. It is no doubt true that even if requisition is made by the Government for II Dosts the public Service Commission may 'send merit list of suitable candidates which may exceed
11. That by itself may not be bad but at the time of giving actual appointments the merit list has to be so operated that only 11 vacancies are filled up, because the requisition being for 11 vacancies, the consequent advertisement and recruitment could also be for 11 vacancies and no more. It easy to visualise that if requisition is for 11 vacancies and that results in the initiation of recruitment process by way of advertisement, whether the advertisement mentions filling up of 11 vacancies or not, the prospective candidates can easily find out from the Office of the Commission that CWP No.3584 OF 2008 etc. 22 the requisition for the proposed recruitment is for filling up 11 vacancies. In such a case a given candidate may not like to compete for diverse reasons but if requisition is for larger number of vacancies for which recruitment is initiated he may like to compete. Consequently the actual appointments to the posts have to be confined to the posts for recruitment to which requisition is sent by the Government. In such an eventuality, candidates in excess of 11 who are lower in the merit list of candidates can only be treated as wait listed candidates in order of merit to fill only the eleven vacancies for which recruitment has been made, in the event of any higher candidate not being available to fill the 11 vacancies, for any reason. Once 11 Vacancies are filled by candidates taken in order of merit from the select list that list will get exhausted, having served its purpose...."
In the case of Prem Singh and others vs. Haryana State Electricity Board and others, (1996) 4 Supreme Court Cases 319, while affirming its earlier view in Madan Lal (supra), the Hon'ble Supreme Court observed as under:-
"25. From the above discussion of the case law it becomes clear that the selection process by way of requisition and advertisement can by started for clear vacancies and also for anticipated vacancies but not for future vacancies If the requisition and advertisement are for certain number of posts only the State cannot make more appointments than the CWP No.3584 OF 2008 etc. 23 number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. ..."
In the case of Raghbir Chand Sharma vs. State of Punjab (P&H), 1992(1) SCT 53, a single bench of this court, while considering the right of a candidate in the waiting list held that candidate in the waiting list has a right of appointment during the period the list remains in operation. The whole idea for keeping the waiting list for a particular period is that after a vacancy arises during that period for any reason, the whole process of selection is not to be undergone once again and the process of selection which has already taken place, holds good for that period. In this case, learned single judge of the Punjab and Haryana High Court held that a candidate in the merit list has a right of appointment, if candidates from the waiting list do not join irrespective of the fact whether a waiting list is prepared by the Commission or not. In my humble view, this judgment does not hold good in view of judgments of Hon'ble Supreme Court in Madan Lal's case (supra) and Prem Singh's case (supra).
In the case of Suvidya Yadav and others vs. State of Haryana and others, 2005(4) SLR 3, Haryana Public Service Commission forwarded a requisition for 18 vacancies of Principals. These vacancies were advertised with a further stipulation that the number of posts would be subject to variation to any extent. Before the process of selection could be completed by the Commission, Higher Education Department of the Government CWP No.3584 OF 2008 etc. 24 made a fresh requisition to the Commission. The Commission recommended 30 persons. Selection of the candidates beyond 18 came to be challenged before this Court. Writ Petition was allowed both by learned Single Judge and the LPA Bench. Setting aside the judgments of the High Court, the Hon'ble Supreme Court held that where requisition is made before the selection is complete, it is in accordance with law.
In the case of Hoshiar Singh vs. State of Haryana and others, 1993 Supp (4) Supreme Court Cases 377, Director General of Police, Haryana sent a requisition for 8 posts of the Inspector of Police to the Subordinate Services Selection Board for selection Board, however, recommended 19 candidates. Recommendations beyond requisitioned posts was held to be illegal.
Petitioners are claiming their appointment against vacancies becoming available from the date of first advertisement dated 23.3.2007 till the next selection i.e. 5.8.2009 both on the strength of statutory rule 8(5) Part D of the Punjab Civil Services (Judicial Branch), Haryana Rules, 1951 and judgment of Hon'ble Supreme Court in the case of Malik Mazhar Sultan (supra). The amended Rule 8(5) has been noticed here-in-above. This Rule provides for entering the names of the candidates selected by the Government for appointment as Civil Judges (Jr.Division) under Rules 10 and 11 of Part C in the High Court register in the order of selection to the extent of 30% more than the advertised vacancies. It has been contended on behalf of the petitioners that the advertised vacancies include the anticipated vacancies as all the 54 vacancies have been advertised and 30% of the advertised vacancies come to 16 vacancies and in terms of the rule, respondents are under statutory obligation to maintain names of 54+16=70 CWP No.3584 OF 2008 etc. 25 names in their register to meet any contingency.
The other contention is that in paragraph 14 of the judgment of the Supreme Court in Malik Mazhar Sultan (supra), the select list survives till the next selection and thus all vacancies accruing after the date of advertisement notification till the next selection are to be taken into consideration for selection/appointment from the merit list prepared by the selection committee. It is argued that the petitioners being in the merit list have vested right to be considered for appointment against all such vacancies. This contention of the respondents is seriously and vehemently opposed by the State as also the High Court. It is relevant to note that High Court in its rejoinder to the replication of the petitioner through the affidavit of Virinder Aggarwal, Registrar (Rules), Punjab and Haryana High Court stated that in order to qualify the vice-voce test candidates have to secure minimum 33% marks in each subject and 50% in aggregate and for Scheduled Caste and Backward Classes, the qualifying marks were 45% in aggregate in the written examination and for the purpose of Viva-voce, candidates three times to the number of vacancies were to be called. While giving the details of the marks secured by the successful candidates, it is stated that total marks from three stages were 1020 and a successful candidate was required to secure 510 marks for being considered for appointment. On the basis of the merit prepared by the Selection Committee, a list of 91 candidates who had secured more than 510 marks and were entitled to be considered for appointment, was sent to Chief Secretary to Government of Haryana vide letter dated 14.1.2008. Government was asked to offer appointment to 41 candidates from Sr.No.1 to 30 from General Category whereas candidates at Sr.Nos.48, 49, 53, 54, CWP No.3584 OF 2008 etc. 26 60, 64, 66, 67, 69, 70 and 80 were from Scheduled Caste and Backward Class, respectively. In response to the aforesaid letter, Government notified 76 candidate vide notification dated 13.2.2008 and vide a separate letter of the even date, a list of 30 candidates (22 from General Category, 5 candidates from Scheduled Caste and three candidates from Backward Classes) were appointed. In addition, appointment of one Navjeet Budhiraja of General category was withheld on account of pendency of court case (CWP No.15130 of 2007) with regard to his eligibility. The State Government further calculated the vacancies and vide letter dated 15.2.2008, the State Government communicated that six vacancies of Scheduled Caste, two of Ex-serviceman and three of Physically handicapped category could not be filled up due to non-availability of the qualifyied candidates. The High Court vide its letter dated 22.2.2008 again requested the Government to appoint the balance 10 recommended candidates and also to appoint 13 more candidates who had qualified the said examination as per the result dated 13.2.2008 who are highly meritorious and difference amongst the selected ones and them was negligible. It was communicated that due to non-fulfilment of the posts of the reserved category, works of the courts were suffering badly. The High Court also intimated that cadre strength of Civil Judges (Jr.Division) has increased from 198 to 264 and thus request was made to appoint remaining 23 qualified candidates to ensure that 54 advertised vacancies were consumed. Taking into consideration 65 new posts created by the State, the Government was informed that there are about 77 vacant posts. The Government accordingly vide its letter dated 10.3.2008 appointed 17 more candidates from General Category upto Sr.No.40 of the merit list and six CWP No.3584 OF 2008 etc. 27 more candidates of Backward Class who figured at Sr.Nos.67, 69, 70, 72, 73 and 74, respectively. It has further been stated by the High Court that as per Rule 1 of Part D of the aforesaid Rules, 30% more than the advertised vacancies were to be entered in the High Court register and thus, the merit list upto Sr.No.70 could be treated as select list to be maintained for a period of one year, in view of the judgment of Malik Mazhar Sultan (supra). While dealing with the petitioners, it is stated that Shiv Kumar, petitioner in CWP No.4223 of 2008, has not cleared the main examination. About petitioners in CWP No.9738 of 2009 who figures at Sr.Nos.128, 267 and 432 of the result have also not qualified having not secured 50% marks in aggregate. In respect of petitioner, Nitin Partap Singh in CWP No.1236 of 2009 and petitioner Sanjeev Tinjan in CWP No.15455 of 2009, it is stated that they are not in the select list. Petitioner Rajesh Kumar in CWP No.15403 of 2008 has challenged the selection process and has not cleared the main examination.
In view of above factual matrix and the projected legal propositions, following intricate questions arise for consideration:-
(i)What is the true import of Rule 8(5)(i) of the Punjab Civil Services (Judicial Branch) Rule 1951 as amended from time to time and the judgment of Hon'ble Apex Court in case of Mazhar Sultan(supra)?
(ii)How many vacancies fall within the purview of above mentioned Rule/judgments?
(iii)Whether the petitioners fall within the select list and have a right to be appointed against the vacancies envisaged under Point (ii) above?
(iv)Whether the petitioners have any right for appointment against the future vacancies created after the date of advertisement dated 23.7.2007? CWP No.3584 OF 2008 etc. 28
(v)Conversion of unfilled Scheduled Caste vacancies to Backward Class vacancies.
Point (i)What is the true import of Rule 8(5)(i) of the Punjab Civil Services (Judicial Branch) Rule 1951 as amended from time to time and the judgment of Hon'ble Apex Court in case of Mazhar Sultan(supra)?
Under the amended Rule noticed here-in-above, names of the candidates selected by Government for appointment as Civil Judges (Jr.Division) under Rules 10 and 11 of Part C are to be entered in the High Court register in the order of their selection to the extent of 30% more than the advertised vacancies so as to meet any contingency for the advertised posts remaining unfilled for any reason. Statutory rules thus envisage entering of the names of the candidates selected by the government. Expression "Selected" does not refer to the select list prepared by the Selection body, but such selectees as have been approved by the Government for appointment. In addition to this, 30% more than the advertised vacancies are to be entered in the list. Admittedly, none of the petitioners is in the select list prepared by the Government for appointment. Assuming the list forwarded by the High Court to the Government for appointment is construed to be a select list, even then names of candidates who fall in the select list upto the advertised vacancies + candidates equal to 30% of the advertised vacancies and next in the order of merit (select list) could alone be entered in the register. In the present case, the select list is prepared for 54 candidates and all of them stand appointed. An additional list of 30% of the advertised vacancies could only be entered in the register. 30% of the advertised vacancies come to 16 vacancies, thus only 16 names of the candidates next in the order of merit from the list prepared CWP No.3584 OF 2008 etc. 29 by the selection body could be entered in the register that makes total 70 candidates. The rule further lays down the purpose for which these additional 30% advertised vacancies are to be entered in the High Court register. The purpose simpliciter is to meet any contingency for the advertised posts remaining unfilled. The spirit of the rule is not to cater to future vacancies becoming available for what ever reason, but only to fill up the slots, in the event advertised vacancies remain unfilled for any reason. The contention of the petitioners that they have a right to occupy all future vacancies becoming available for any reason upto 30% of advertised vacancies is based upon misinterpretation, misconstruction and misunderstanding of the Rule 8.5(i) of the Rules.
Coming to the scope of the judgment in Malik's case (supra), Paragraph 14 of the judgment only directs that the select list prepared for all categories shall be followed till next select list is published. Hon'ble Supreme Court has not referred to the merit list prepared, but only the select list. Hon'ble Supreme Court has only extended the validity of the select list and it has to be read in consonance with the statutory rule 8(5) of recruitment rules. Even if it is read in isolation of the statutory rules, it only provides for keeping the select list alive till the next selection. Paragraph 15 of the judgment of the Hon'ble Supreme Court, further directs 10% of the unforeseen vacancies in respect of the sanctioned post and not vacancies occurring in a particular year to be made part of the select list. Thus a conjoint reading of both these paragraphs lead to only one conclusion that the select list comprises of vacancies available on the date of advertisement + 10% of the total sanctioned strength of the cadre. The select list only means the list of the candidates who have been declared CWP No.3584 OF 2008 etc. 30 successful on the basis of the laid down criteria in the order of merit and recommended for appointment, and if the select list is to be construed in terms of the statutory rule, it only means list of candidates equal to the advertised vacancies. Thus, the expression "select list" does not mean the entire list of the candidates who might have qualified under the laid down criteria.
Point (ii)How many vacancies fall within the purview of above mentioned Rule/judgments?
Rule 8(5) refers to additional 30% of the advertised vacancies to be entered in the register. As worked out, 30% of the 54 advertised vacancies, the number comes to 16. As far as the judgment of Hon'ble Supreme Court in the case of Mazhar (2008) is concerned, 10% of the sanctioned strength is to be taken into consideration for the purpose of preparation of the select list which would remain in force till the next selection. This 10% is to cater to the vacancies available on account of drop out from the select list, death, resignation etc. till the next selection, whereas 30% of the additional vacancies are meant to fill up the slots where the advertised vacancies remain unfilled. Thus the purpose of the rule and judgment is common. The expression "advertised vacancies" should be construed and mean the vacancies available at the time of initiation of the selection process and should not be read to include any vacancy which may become available after the date of advertisement. However, in the present case, the advertisement has included 20 anticipated vacancies in due deference to the judgment of the Hon'ble Supreme Court in Malik Mazhar Sultan (supra). The object and purpose of 30% additional vacancies and 10% of the sanctioned cadre strength in addition to the available vacancies is common. CWP No.3584 OF 2008 etc. 31 Hence the number of vacancies which could possibly be brought within the purview of the rule and the judgment does not exceed the 10% of the cadre strength. In the present case, thus, on a harmonious construction of the rule and the reading of judgment of the Hon'ble Apex Court, only 20 vacancies in addition to the vacancies available on the date of advertisement fall within the purview of the rule and the judgment.
Point (iii)Whether the petitioners fall within the select list and have a right to be appointed against the vacancies envisaged under Point (ii) above?
The contention of the petitioners is that they have right of appointment against vacancies occurring and becoming available on account of (i)non-joining, (ii)resignation, (iii)retirement, (iv) death, and (v) Promotion. It is admitted position that only 34 vacancies were available on the date of the advertisement. Mr. Aggarwal in his affidavit dated 18.9.2009 has given details of the vacancies becoming available on account of (i)non-joining, (ii)resignation, (iii)retirement, (iv) death, and (v) Promotion etc. All the appointed candidates joined their respective posts on being selected. Thus, no vacancy accrued on account of non-joining/drop out. 9 candidates resigned after selection, (8 for General Category and one from B.C.). No vacancy accrued on account of retirement of Judicial Officer from the Civil Judge (Jr.Division). One vacancy became available on account of death of one Ajay Kumar Aggarwal. 14 vacancies became available on account of promotion (9 for General Category, 3 for Scheduled Caste Category and 2 for Backward Class Category) between the period 23.3.2007 and 14.9.2008 i.e. upto next selection. 65 additional vacancies were created after the date of advertisement and before the next selection. However, these additional vacancies were put to advertisement in CWP No.3584 OF 2008 etc. 32 the next selection vide advertisement dated 14.9.2008. Point (iv)Whether the petitioners have any right of appointment against the future vacancies created after the date of advertisement dated 23.7.2007?
It is settled law that future vacancies cannot be filled up on the basis of earlier advertisement as these vacancies have to be put to advertisement to enable all eligible candidates to seek their consideration, in view of the judgment of the Hon'ble Supreme Court in case of Madan Lal (supra), Prem Singh (supra) and Rakhi Ray v. The High Court of Delhi, 2010(2) SCC 637 and State of Orissa and another vs. Raj Kishore Nanda and Ors. (2010) 6 SCC 777. Petitioners have given the details of the promotion made from time to time. However, certain promotions have been made after the second selection which have been included by the petitioners in their submissions to lay their claim on account of promotions made after 14.9.2008. 13 vacancies (General Category 6, S.C. 4, B.C., 3) have become available after the declaration of next select list and thus petitioners have no right whatsoever to seek their consideration against these vacancies.
As noticed above, the only obligation of the High Court/Government was to prepare a select list upto 10% of the cadre strength. At the time of advertisement dated 27.3.2007, cadre strength of Civil Judge (Jr.Division) was 198. Thus 10% of cadre strength is 20 vacancies. Similarly, in terms of Rule 8(5) of 1951 Rules, 30% of advertised vacancies is equal to 16 posts. The combined affect of Rule and judgment is maximum 20 posts. Thus 20 vacancies have been included in advertisement. Paragraphs 14 and 15 of the judgment of Hon'ble Supreme Court (supra) have to be reconciled and read harmoniously. Keeping the select list alive upto the next selection could only be confined to the 10% of the total cadre strength as pointed out CWP No.3584 OF 2008 etc. 33 in paragraph 15 of the judgment. These vacancies have been filled up pursuant to the selection in question and thus petitioners cannot lay their claim against any other vacancy beyond 10% notwithstanding the fact that more vacancies have become avainable on account of (i)non-joining, (ii) resignation, (iii)retirement, (iv) death, (v)promotion (vi)New Creation. In the case of Rakhi Ray (supra) the Hon'ble Supreme Court has also considered the judgment of the Hon'ble Supreme Court in Malik Mazhar Sultan (supra) and held as under:-
"25.In view of above, we do not find any force in the submissions that the High Court could have filled vacancies over and above the vacancies advertised on 19.5.2007, as per the directions issued by this Court in Malik Mazhar Sultan's case (supra). More so, no explanation could be furnished by Shri Ranjit Kumar, learned Senior Counsel for the appellants as to why the appellants could not challenge the advertisement itself, if it was not in conformity with the directions issued by this Court in the said case."
It is otherwise a settled proposition of law that a candidate on the select list has no indefeasible right for appointment. Judgments in the case of S.S.Balu and Anr. vs. State of Kerala & Ors. 2009(2) SCC 479 and Punjab State Electricity Board and others v. Malkiat Singh, AIR 2004 Supreme Court 5061. In the case of Rakhi Ray (supra) the Hon'ble Supreme Court has further hled as under:-
"14.In view of above, the law can be summarised to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being CWP No.3584 OF 2008 etc. 34 violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. Waiting list etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more.
XXX XXX XXX
26.....A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and inconformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment."
Point (v)Conversion of unfilled Scheduled Caste vacancies to Backward Class vacancies.
It has been argued on behalf of the petitioners that all the advertised vacancies under Scheduled Caste vacancies have not been filled up on account of non-availability of the eligible candidates and in view of the Government instructions dated 17.8.1976. These vacancies are to be utilized for appointment of Backward Class candidates. However, in the reply dated 12.3.2005 filed on behalf of respondent no.2-Registrar (Rules) in CWP No.3584 OF 2008 etc. 35 CWP No.3584 of 2008, it has been specifically mentioned that the instructions dated 17.8.1976 was superseded with the instructions dated 9.2.1979 and by subsequent instructions dated 30.7.1986. The relevant policy decision in the last instructions is as under:-
"that if after two advertisements, the candidates belonging to Scheduled Castes are not available the posts will be readvertised for the third time indicating that if candidates belonging to Scheduled Castes are not available, these posts will be filled up from among the Backward Classes candidates. Similarly, if after two advertisements, the candidates belonging to Backward Classes are not available, the posts will be re-advertised for the third time indicating that if candidates belonging to Backward Classes are not available; these posts will be filled up from among Scheduled Castes candidates. If, however, the candidates belonging to the Scheduled Castes as well as Backward Classes are not available, the posts will be filled up from the candidates belonging to the General Category."
In view of the latest instructions, these vacancies could not be converted, unless the Scheduled Caste vacancies are re-advertised for three times in consonance with the principle of carry forward. It is only if in spite of three advertisements, the candidates from Scheduled Caste and Backward Class are not available, the vacancies can be filled up from Backward Category. The claim of the Backward Class writ petitioners to appoint them against the unfilled Scheduled Caste vacancies cannot be CWP No.3584 OF 2008 etc. 36 considered unless the vacancies are advertised three times. From the Annexure P-5 in CWP No.3584 of 2008, it appears that only two scheduled caste vacancies have been advertised third time. Thus only two Scheduled Caste vacancies can be filled up from the Backward Class Category candidates from the advertisement dated 23.3.2007. In view of the above circumstances, all writ petitions, except CWP No.3584 of 2008 are dismissed. CWP No.3584 of 2008 is allowed with a direction to the respondents to fill up two Scheduled Caste unfilled vacancies from the Backward Class category candidates who are next in the merit in Backward Class Category.
(PERMOD KOHLI) JUDGE Pronounced on:
20 .5.2011 MFK NOTE: Whether to be referred to Reporter or not:YES CWP No.3584 OF 2008 etc. 37 CWP No.3584 OF 2008 etc. 38