Punjab-Haryana High Court
Mayank Khosla And Ors vs State Of Punjab And Ors on 28 March, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, A.N.Jindal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 28.3.2012
(i) CWP No. 14467 of 2011
Mayank Khosla and ors ......Petitioners
vs.
State of Punjab and ors .....Respondents
Present: - Mr. Rajiv Atma Ram, Sr. Advocate with
Mr. Saurav Arora, Advocate and
Mr. Ansul Gupta, Advocate for the petitioners
Mr. Sandeep Moudgil, DAG, Punjab
for respondents No. 1, 2 and 4.
Mr. Vikas Bahl, Advocate
for respondent No. 3.
(ii) CWP No. 14109 of 2011
Sumit Sabharwal and ors ......Petitioners
vs.
State of Punjab and ors .....Respondents
Present: - Mr. Gurminder Singh, Advocate
for the petitioners
Mr. Sandeep Moudgil, DAG, Punjab
for respondents No. 1, 2 and 4.
Mr. Vikas Bahl, Advocate
for respondent No. 3.
(iii) CWP No. 16612 of 2011
Aman Inder Singh ......Petitioner
vs.
State of Punjab and ors .....Respondents
Present: - Mr. R.S. Bains, Advocate for the petitioner
Mr. Sandeep Moudgil, DAG, Punjab
for respondents No. 1, 2 and 4.
CWP No. 14467 of 2011 -2-
Mr. Vikas Bahl, Advocate
for respondent No. 3.
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice A.N.Jindal
HEMANT GUPTA, J
This order shall dispose of above mentioned three writ petitions, wherein, the petitioners have sought a writ of mandamus for directing the respondents to appoint the petitioners to the posts of Civil Judges (Junior Division)-cum- Judicial Magistrates in the State of Punjab from the date the other candidates were appointed i.e. 18.4.2011 The brief facts leading to the present petition are that the Punjab Public Service Commission invited applications by public advertisement dated 10.5.2010 in various newspapers for the recruitment to 85 posts of Punjab Civil Service (Judicial Branch). Though, initially, the advertisement contemplated 25 posts for the General Category but in the subsequent corrigendum issued on 31.8.2011 (Annexure P-1) 34 posts were meant to be filled from amongst General Category candidates. The petitioners participated in the selection process, the result of which was declared on 23.12.2010 (Annexure P-2). The name of the petitioners in these petitions appear at serial numbers 37, 38, 41, 43, 44, 47, 48 and 49.
While declaring the result, a note was appended by the Registrar (General) of this Court, which reads as under: -
First 34 candidates appearing in Annexure "A", the first 11 candidates appearing in Annexure "B", the first 14 candidates appearing in Annexure "C", all the 5 candidates appearing in Annexure "D", the candidates appearing in Annexures "E", "F" and "G" are recommended to be appointed as Civil Judges (Junior Division)-cum-Judicial Magistrates in the State of Punjab. 15 candidates next in the merit in Annexure "A" and 5 candidates next in merit in Annexure "B" shall remain in waiting list for one year from today i.e. 23.12.2010. In the eventuality of any vacancy accruing in the above-said 34 + 11 vacancies on account of non- joining of the candidates or the resignation of any candidates or on account of CWP No. 14467 of 2011 -3- any other unforeseen eventuality, such vacancies shall be filled up from the above said 15 + 5 candidates from their respective categories.
It is not disputed that 34 candidates were initially offered appointment but two of them did not join. Consequently, the candidates at serial number 35 and 36 were offered appointment.
The grievance of the petitioner is that the names of the petitioners appear next in the waiting list and in terms of Rule 8 of the the Punjab Civil Services (Judicial Branch) Rules, 1951, (for short the 'Rules') the anticipated vacancies, likely to occur during the year of advertisement, are required to be advertised and that since such vacancies are available but not advertised, the petitioners are entitled to be appointed against such anticipated vacancies. Therefore, the respondents are bound to appoint the petitioners against the said posts. Rule 8 of Part D the Rules read as under:
"8. There is no limit to the number of names borne on the High Court Register but ordinarily no more names will be included than are estimated to be sufficient for filing up of vacancies, which are anticipated to be likely to occur during the year of advertisement i.e. from 1st January to 31st December of that year."
It is also argued that in terms of a judgment of Hon'ble Supreme Court in Malik Mazhar Sultan and another vs. Uttar Pradesh Public Service Commission and others, 2008(17) SCC 703, 10% of the posts as anticipated vacancies are required to be advertised and filled up in the same selection process. Therefore, the respondents are bound to offer appointment to the petitioners in terms of the statutory rules and the judgment in Malik Mazhar' case (supra). Relevant extract from the aforesaid judgment read as under: -
D. For appointment to the posts of Civil Judge (Junior Division) by direct recruitment.
Sr. No. Description Date
1 Number of vacancies to be notified by the High Court. th
15 January
Vacancies to be calculated including
CWP No. 14467 of 2011 -4-
Sr. No. Description Date
(a) Existing Vacancies.
(b) Future vacancies that may arise within one year due to retirement.
(c) Future vacancies that may arise due to promotion, death or otherwise, say ten per cent of the number of posts.
Learned counsel for the petitioners has argued that the judgments of this Court in LPA No. 1903 of 2011, Abhishek Goyal & others vs. State of Haryana & another, decided on 9.1.2012 and CWP No. 20135 of 2008, Kulwinder Pal Singh vs. State of Punjab and others, decided on 13.2.2012, are not applicable to the facts of the present case as in the aforesaid cases, anticipated vacancies were taken into consideration while issuing advertisements whereas in the present case anticipated vacancies have not been taken into consideration. It is also argued that Hon'ble Supreme Court in Rakhi Ray and others vs. High Court of Delhi and ors, (2010)2 SCC 637, which has been made basis by this court in the aforesaid judgments is not applicable as the Delhi Judicial Service Rules, 1970, subject matter of consideration in the aforesaid case, did not provide for anticipated vacancies. Therefore, such judgment is not applicable to the facts of the present case. The respondents are bound to offer appointment to the petitioners who are next in the waiting list against the anticipated vacancies.
On the other hand, learned counsel for respondents has argued that the judgment in Malik Mazhar's case (supra), has been explained in Rakhi Ray's case (supra),wherein, it has been held that in case the vacancies notified are filled up, then the waiting list cannot be used as a reservoir to fill up vacancies which come into existence after the issuance of advertisement. Therefore, the petitioners cannot claim any right in respect of anticipated vacancies even if such anticipated vacancies were not CWP No. 14467 of 2011 -5- advertised. It is argued that the Rule 8 relied upon by the petitioners is only directory in nature. If the anticipated vacancies are not advertised, the petitioners cannot claim right of appointment against non advertised vacancies. It is argued that the petitioners could possibly claim that anticipated vacancies should also be included prior to selection process and not after participating the same and not making to the merit.
We have heard learned counsel for the parties at some length and find no merit in the present petitions. Though, in the judgments of this court in Abhishek Goyal's case (supra) and Kulwinder Pal Singh's case (supra), the anticipated vacancies were also advertised but that will not confer any right upon the petitioners to seek appointment over and above the vacancies advertised. Rule 8 contemplates placing of the names on the High Court register for appointment sufficient to fill up the anticipated vacancies likely to occur during the year of advertisement but such Rule is only for enabling provision. It is for the employer to consider and to decide how many vacancies are to be filled up. The selection process was in respect of 85 vacancies, out of total cadre of 301 officers. Therefore, the decision or omission not to include the anticipated vacancies does not give rise to any justiciable right in favour of the petitioners. In fact, no right accrues only on the basis of the merit position of the petitioners. In State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220, the court observed:
10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect.
The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) CWP No. 14467 of 2011 -6- shall not make such appointments by travelling outside the list, and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence. (Emphasis supplied)
11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the NalandaCollege, AIR 1962 SC 1210, that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived.
In S.S. Balu v. State of Kerala, (2009) 2 SCC 479, the Court again observed: -
12. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list. (see Pitta Naveen Kumar v. Raja Narasaiah Zangiti, (2006) 10 SCC 261.) The State as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the candidate concerned will have no legal right for obtaining a writ of or in the nature of mandamus. (See Batiarani Gramiya Bank v. Pallab Kumar, (2004) 9 SCC 100.) In Shankarsan Dash v. Union of India, (1991) 3 SCC 47 a Constitution Bench of this Court held: (SCC pp. 50-51, para 7) "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to CWP No. 14467 of 2011 -7- respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted." In State of M.P. v. Sanjay Kumar Pathak, (2008) 1 SCC 456, it has been observed as under :
20. It is well known that even selected candidates do not have legal right in this behalf. (See Shankarsan Dash v. Union of India (1991) 3 SCC 47 and Asha Kaul v. State of J&K (1993) 2 SCC 573.)
21. In K.Jayamohan v. State of Kerala (1997) 5 SCC 170, this Court held: (SCC p. 171, para 5) "5. It is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right to appointment. It is open to the Government to make the appointment or not. Even if there is any vacancy, it is not incumbent upon the Government to fill up the same. But the appointing authority must give reasonable explanation for non-appointment. Equally, the Public Service Commission/recruitment agency shall prepare a waiting list only to the extent of anticipated vacancies. In view of the above settled legal position, no error is found in the judgment of the High Court warranting interference."
(See also Munna Roy v. Union of India (2000) 9 SCC 283.) In view of the above judgments, the petitioners cannot claim any right of appointment relying upon Rule 8 of the Rules, when the advertised vacancies stand filled up. The decision is of the employer as to how many seats are filled up. The petitioners cannot seek any mandamus to seek appointments against the posts not advertised. Such Rule empowers the employer to advertise anticipated vacancies but no right accrues to a candidate only for the reason, such vacancies have not been advertised.
In Rakhi Ray's case, it was held that the directions of the Supreme Court Malik Mazhar's case (supra) are to be read in the context of the Rules. This Court in Abhishek Goyal's case (supra), considered the number of judgments and it was held to the following effect: -
Later in State of Orissa and another Vs. Rajkishore Nanda and others (2010) 6 SCC 777 again, the Hon'ble Supreme Court held that the vacancies cannot be filled up over & above the number of vacancies advertised "as the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of CWP No. 14467 of 2011 -8- the constitutional right under Article 14 read with Article 16(1) of the Constitution". It was held to the following effect:
"11. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a Rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 (1994) 1 SCC 126, Prem Singh v. Haryana SEB case (supra), Ashok Kumar v. Banking Service Recruitment Board (1996) 1 SCC 283, Surinder Singh v. State of Punjab (1997) 8 SCC 488 and Rakhi Ray v.
High Court of Delhi case (supra))."
In the present case, the names of the appellants appear at Sr.No.42 onwards. As against 28 vacancies advertised, 40 candidates have been appointed out of which 05 have resigned or not joined. Therefore, the candidates much more than the vacancies advertised already have been permitted to join. The select list stands exhausted with the joining of the candidates. The resignation of few candidates after their joining, does not entitle a waiting list candidate to claim appointment. In view of the said fact, the appellants cannot claim any legal right in the posts advertised in the year 2007. The appellants cannot claim any right of appointment in respect of vacanicies which arose after advertisement or in respect of additional posts created after advertisement. Subsequently, in Kulwinder Pal Singh's case (supra), reliance is placed upon another judgment of Hon'ble Supreme Court in Arup Das and others vs. State of Assam and others 2012 (1) SCT 753 decided on 27.1.2012 and it has been held to the following effect: -
"10. ....It is well-established that an authority cannot make any selection/ appointment beyond the number of posts advertised, even if there were a larger number of posts available than those advertised. The principle behind the said decision is that if that was allowed to be done, such action would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution, since other candidates who had chosen not to apply for the vacant posts which were being sought to be filled, could have also CWP No. 14467 of 2011 -9- applied if they had known that the other vacancies would also be under consideration for being filled up. ...
xxx xxx xxx
11. In a recent decision rendered by this Court in State of U.P. Vs. Raj Kumar Sharma [(2006) 3 SCC 330], this Court once again had to consider the question of filling up of vacancies over and above the number of vacancies advertised. Referring to the various decisions rendered on this issue, this Court held that filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution and that selectees could not claim appointments as a matter of right. It was reiterated that mere inclusion of candidates in the Select List does not confer any right to be selected, even if some of the vacancies remained unfilled. This Court went on to observe further that even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake."
While considering the judgment in Prem Singh and others v. Haryana State Electricity Board and others, (1996) 4 SCC 319, the Hon'ble Supreme Court observed as under:
"12. ...The facts of that case are different from the facts of the instant case, in that no extra-ordinary and/or exceptional circumstances exist in the present case requiring the filling up of the vacant seats available after filling up the 160 seats advertised. The decision in Prem Singh's case (supra) has to be read in such a context and cannot be said to be the Rule, but rather the exception."
In view of the above, when the advertised vacancies have been filled up, the petitioners cannot claim any right against the anticipated vacancies. Such claim is in contravention of Article 14 and 16 of the Constitution of India. Thus we do not find any merit in the present petition and the same is hereby dismissed.
(HEMANT GUPTA) JUDGE (A.N.JINDAL) JUDGE 28.3.2012 preeti