Punjab-Haryana High Court
Mahender Singh And Others vs State Of Haryana And Another on 17 September, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 5189 of 2012
Date of Decision : 17.9.2012
Mahender Singh and others ..... Petitioners
Versus
State of Haryana and another ..... Respondents
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. R.P. Verma, Advocate, for the petitioners.
AUGUSTINE GEORGE MASIH, J. (ORAL)
Petitioners have approached this Court praying for issuance of a direction for implementation of the order dated 29.6.2004/1.7.2004 (Annexure-P-1), passed by the Governor of Haryana, accepting the mercy petition of the petitioners alongwith 39 others, whereby Government of Haryana has been directed to appoint/absorb all the 43 mercy petitioners on the posts of Clerks on humanitarian ground against the vacancies in Government departments or in surplus pool of the Government.
Petitioners in response to an advertisement dated 22.7.1987 applied for the posts of Clerks. They were called for interview and were selected. List of 5373 selected candidates was published by the Subordinate Service Selection Board, Haryana (hereinafter referred to as 'the Board') on 15.10.1990. The Board recommended names of 1692 candidates to different departments of Haryana Government for appointment and while doing so failed to adhere to the merit list prepared by it and instead recommendations were made at random. This resulted in candidates with higher merit in the CWP No. 5189 of 2012 -2- select list being ignored and lower in merit appointed. Aggrieved by selection some of the candidates filed CWP No. 8187 of 1990 titled as Sudesh Kumari and others Versus State of Haryana and others, which was allowed by a Division Bench of this Court on 18.10.1990 (1991(1) RSJ 21) other candidates filed CWP No. 174 of 1992 titled as Bijender Singh and others Versus State of Haryana. The matter was referred to the Full Court and some directions were issued by the Court. The judgment is reported as 1995(1) RSJ
620. Aggrieved by this decision of the Full Court, Roshni Devi and others preferred appeals before the Supreme Court and these appeals were disposed of on 18.9.1998 with the following directions in substitution of the directions made by the High Court in the impugned judgment:-
"1) The appointments already made from out of the list prepared on 15.10.1989 will not be anulled.
2) The last persons who is stated to have been appointed being at Serial No. 4645, persons occupying higher position than him could be considered for appointment to the post of Clerk if there exists any vacancy for them.
3) The vacancy in this context would mean the vacancies which were available in the State of Haryana prior to the advertisement issued for selecting persons for the said post for the year 1995. It is to be made clear that if no vacancies exist on the aforesaid date, then no further appointment would be made from out of the list prepared on 15.10.1989 notwithstanding the directions of the Punjab and Haryana High Court in Sudesh Kumari case.
4) If vacancies did exist on the date as aforementioned, then the appointments from out of the list prepared on 15.10.1989 could be made strictly on the basis of their merit position in the list.CWP No. 5189 of 2012 -3-
5) We strongly deprecate the practice of selecting and preparing an unusually large list compared to the vacancy position and the State Government should either amend the recruitment rules in that respect and till then should issue positive administrative instructions giving the right to the Selection Board to select only some persons in excess than the requisition for which the Board is going to select people.
6) We also do not approve of the inaction on the part of the State Government in not assailing the judgment of the Punjab and Haryana High Court in Sudesh Kumari case and now coming up before us making submissions that judgment is practically incapable of being implemented."
The directions issued by the Hon'ble Supreme Court were not given effect to and a Contempt Petition No. 203 of 1999 titled as Sita Ram Versus R.S. Verma and another was filed. Reply to the contempt petition was filed by the then Chief Secretary of Government of Haryana, wherein it was stated that the Subordinate Services Selection Board, Haryana, had already sponsored 92 candidates to various departments in order of merit from the selection list dated 15.10.1989 and there was no further post available. In view of the compliance report submitted by the Chief Secretary, Haryana, the contempt petition was dismissed by the Hon'ble Supreme Court.
Civil Appeal No. 326 of 2000 titled as Sheela Devi Versus State of Haryana was filed before the Hon'ble Supreme Court, which was disposed of, vide order dated 15.12.2000, with directions to the petitioners to move the appropriate forum. 61 candidates, who were higher in merit to the last recommended candidate within the selection list dated 15.10.1989 filed CWP No. 2391 of 2001 titled as Ramesh Chand and others Versus State of Haryana, in this Court which was disposed of, vide order dated 14.3.2002, by directing CWP No. 5189 of 2012 -4- the respondents to comply with the order dated 18.9.1998, passed by the Hon'ble Supreme Court in Roshni Devi's case (supra) in letter and spirit. On a clarification sought, the Court only directed the respondents to implement the judgment within a period of three months from the date of passing of the order. The Haryana Subordinate Selection Board recommended the names of candidates in order of merit to the department on 19.9.2002.
The petitioners found that their names have not been recommended for appointment. They submitted a mercy petition before the Governor of Haryana with a grievance that persons lower in merit to them in the selection list dated 15.10.1989 stood appointed, whereas petitioners were still fighting for their right of appointment and they had become overage having fought the battle till the highest court and having failed to get justice. Comments were sought by the Governor of Haryana from the Haryana Subordinate Selection Board and the Secretary to Government of Haryana. The case of the petitioners for mercy was approved by the Governor of Haryana on 1.7.2004 (Annexure-P-1). As per the noting placed on record, when the same was not given effect to, petitioners submitted a representation to the Chief Minister, Haryana on 11.1.2007. Alongwith this representation, the order passed by the Governor of Haryana was also attached. As the said order of Governor of Haryana, dated 29.6.2004/1.7.2004 (Annexure-P-1) was not received by the Government of Haryana, Secretary to Governor of Haryana was asked, vide letter dated 20.11.2007, to convey the decision which has been taken in the matter. When no communication was received, reminder was issued on 16.1.2008 for communicating the decision taken by the Governor of Haryana on the mercy petition of the petitioners. Secretary to Governor of Haryana, vide D.O. dated 14.5.2008, informed that on perusal of CWP No. 5189 of 2012 -5- the matter, the same has been filed. Since the noting portion which was attached with the application of the petitioner submitted to the Chief Minister, Haryana, reflected that the mercy petition had been allowed by the Governor of Haryana, copy of the noting portion dated 1.7.2004 was sent to the Secretary to Governor, Haryana, vide letter dated 3.7.2008, for clarification of the position. Response was received wherein it was stated that on 1.7.2004, the Governor of Haryana had approved the noting to ask the Government to appoint/absorb all the 43 mercy petitioners on the humanitarian ground on the vacancies in Government departments, but these orders were not conveyed. Later on, Governor of Haryana, vide order dated 2.8.2004, had reviewed that decision and filed the case in question on the ground that it would not be a stand alone decision to offer appointment to these 43 applicants as thousands of applicants placed higher in merit to them in the selection list too would demand similar relief and this would invite a spate of similar requests opening a pandora's box resulting in severe legal complication for the State Government.
In the light of the above, response received from the Secretary to the Governor, Haryana, the Chief Minister, Haryana, filed the applications submitted by the mercy petitioners including the petitioner herein.
Counsel for the petitioners contends that in a similar case, this Court in CWP No. 3429 of 2009 titled as Dharma Singh and others Versus State of Haryana and another, decided on 3.8.2010 has disposed of the writ petition with a direction to respondents to appoint petitioners against 12 E.S.M. category vacancies on the basis of their inter-se merit from the merit list dated 15.10.1989. First 12 meritorious petitioners would be appointed against these vacancies, irrespective of the category within a period of two CWP No. 5189 of 2012 -6- months. Counsel very fairly states that this order has been challenged by the State of Haryana before a Division Bench of this Court, where the operation of this order stands stayed.
I have considered the submissions made by the counsel for the petitioners and with his assistance have gone through the records of the case.
Perusal of the above directions dated 18.9.1998 issued by the Supreme Court would show that the last person who had been appointed out of the select list was placed at serial number 4645 and the claim of persons occupying higher position than him could be considered for appointment to the post of Clerk, if there exists any vacancy for them which were available in the State of Haryana, prior to the advertisement issued for selecting persons for the said post for the year 1995. It was further clarified that if no vacancies exist on the aforesaid date, then no further appointment was to be made from out of the list prepared on 15.10.1989. These appointments were also to be made strictly on the basis of their merit position in the merit list.
In a similar matter i.e. CWP No. 11705 of 2005 titled as Sudama and others Versus State of Haryana and another, which came up for consideration after issuance of notice to the respondent-State, State of Haryana filed written statement wherein it was mentioned that no vacancy is available in General, Scheduled Caste and Backward Class categories and as such appointments cannot be made by the State, as per the directions of the Supreme Court. On the basis of the affidavit filed by the respondents, this Court was pleased to dismiss the same vide order dated 28.6.2010.
That apart, the present writ petition deserves to be dismissed in the light of the facts which are available in the noting sheet copy whereof has been placed on record as Annexure-P-2 which deals with the application CWP No. 5189 of 2012 -7- submitted by the to the Chief Minister, Haryana, according to which a clarification was sought from the Secretary to the Governor of Haryana with regard to the decision dated 1.7.2004 taken by the Governor of Haryana, according to which petitioners had claimed appointment/absorption on the posts of Clerks against the vacancies in the Government departments. It has been clarified that although, decision was taken by Governor of Haryana on 1.7.2004, but the same was never conveyed to the Government of Haryana for implementation thereof. As a matter of fact, the Governor had reviewed that decision and filed the same on the ground that it would open a flood gate for such a demand claiming similar relief which would create severe legal complications for the State Government. In the light of this factual position, the prayer made by the petitioner in the present writ petition, seeking directions to the respondents to implement the order dated 29.6.2004/1.7.2004 (Annexure-P-1), is totally mis-conceived as the same has been reviewed and mercy petition of the has been filed by the Governor of Haryana.
Another ground which dis-entitles the petitioner to the prayer made in the writ petition is inordinate delay in approaching this Court, especially in the light of the fact that the directions issued by the Hon'ble Supreme Court are dated 18.9.1998, i.e. 13 years have passed since then. Even the order dated 29.6.2004/1.7.2004 which is being sought to be implemented which, as a matter of fact, now does not exist which cannot be enforced now as the same having been reviewed and the mercy petition filed from that date also is a delay of more than 8 years which itself dis-entitles the petitioner to the claim which has been made in the present writ petition being stale one.
CWP No. 5189 of 2012 -8-
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
(AUGUSTINE GEORGE MASIH) JUDGE 17.9.2012 sjks