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Haryana Public Service Commission (HPSC), Panchkula, Haryana
Haryana Public Service Commission (HPSC), Panchkula, Haryana
Address:Bays No.1-10, Block B
Panchkula (District Panchkula)
Haryana, IndiaPin Code : 134112
Haryana Public Service Commission (HPSC), Panchkula Haryana is a State Authority under the control of State Government.
Haryana Public Service Commission (HPSC) is situated in Panchkula of Haryana state (Province) in India. This data has been provided by www.punjabcolleges.com. Panchkula comes under Panchkula Tehsil, Panchkula District.
Fax # of Haryana Public Service Commission (HPSC), Panchkula Haryana is 0172 - 2560352.
email ID(s) is
Contact Details of Haryana Public Service Commission (HPSC), Panchkula Haryana are : Telegram Address HARSERCOM
PHONE Ph. : 0172 â€“ 2560755 (Enquiry)
Chairman Office 0172 â€“ 2560352
Secretary Office 0172 â€“ 2560752
Controller of Exams 0172 â€“ 2560753
HPSC member Harinder Pal Singh booked for murder.
ESTABLISHMENT AND ACCOUNTS BRANCH: Smt. Santosh Kumari, Superintendent 0172 2560755 (Extn 130)
EXAMINATION BRANCH â€“ I: Sh. Raj Kumar, Superintendent 0172 2560755 (Extn 131)
EXAMINATION BRANCH â€“ II: Sh. Devender Kumar Gupta, Superintendent 0172 2560755 (Extn 132)
RECRUITMENT BRANCH â€“ I: Sh. Devender Gaur, Deputy Superintendent 0172 2560755 (Extn 120)
RECRUITMENT BRANCH â€“ II: Smt. Sushma Chawla, Superintendent 0172 2560755 (Extn 121)
RECRUITMENT BRANCH â€“ III: Sh. Udai Singh, Superintendent 0172 2560755 (Extn 122)
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KRISHAN KUMAR AND OTHERS Versus THE STATE OF HARYANA AND ORS C W P 2303 of 2010
PURUSHOTAM KUMAR Versus STATE OF HRY AND ORSIN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.M.No.21422 of 2006 and C.W.P No. 19696 of 2006
Date of decision : April 03, 2007.
Purushotam Dass, ......Petitioner. Through Mr.Sanjiv Gupta, Advocate
State of Haryana and others, ......Respondents Through Mr.Rajiv Raina, Advocate
HON'BLE MR.JUSTICE VIJENDER JAIN, CHIEF JUSTICE
HON'BLE MR.JUSTICE RAJIVE BHALLA
1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
C.M.No.21422 of 2006
This is an application for restoration of the petition which was
dismissed on account of non-appearance of counsel for the petitioner.
Counsel for the respondents states that he has no objection if
the application is allowed. Accordingly, the application is allowed and the petition is restored to its original number.
Prayer in the present writ petition is for the issuance of a writ of
certiorari for quashing the action of the respondents for not considering the prayer of the petitioner for re-evaluation, and for the issuance of a writ of mandamus directing the respondents to re-evaluate/re-check paper scripts of the petitioner.
The petitioner sat in an examination for the Haryana Civil
Services (Judicial Branch) Examination, 2006, conducted by the Punjab and Haryana High Court. He, however, remained unsuccessful. Upon receipt of the result card, the petitioner filed a representation, dated 9.9.2006 for reevaluation/ re-checking .
The Member-cum-Secretary, Selection Committee, HCS (JB), Punjab and Haryana High Court, wrote a letter, dated 21.9.2006,
informing the petitioner that upon re-checking of the answer sheets, no discrepancy was found. The petitioner thereafter addressed another communication, dated 4.10.2006, praying that though his prayer for rechecking had been granted, his request for re-evaluation had not been considered.
Counsel for the petitioner contends that the petitioner has an
excellent academic record and as per his own evaluation, and on account of his various academic achievements, he could not have failed to clear the HCS (Judicial Branch) Examination. The petitioner passed his matriculation examination in first division, was amongst the toppers in Bachelor of Laws from Delhi University in 1992. In 1992, 1993, 1994 and 1995 he cleared the preliminary as well as main examination for the Indian Administrative Services, the written examinations for the Executive Service in the States of Uttar Pradesh, Madhya Pradesh and Punjab. It is, thus, contended that the petitioner is of the bona fide belief that his papers were deliberately or inadvertently assessed far below than actual worth. It is prayed that in view of these facts, a direction be issued to the respondents to re-evaluate his answer scripts.
We have heard learned counsel for the petitioner and perused
the paper book.
Examinations, by their very nature, are fraught with uncertainties.
Academic brilliance does not necessarily guarantee success
in competitive examinations. The uncertainties of a competitive exam are too well known to narrate. The fact that the petitioner harbours an apprehension that his paper scripts may not have been fairly or correctly evaluated, in the absence of any material in support of these bald assertions, cannot be a ground to direct re-evaluation. In the absence of any cogent or concrete material, to support the vague allegations, we find no reason to entertain the present writ petition. Consequently, the writ petition is dismissed.
( VIJENDER JAIN )
( RAJIVE BHALLA )
MOHINDER SINGH Vs STATE OF HARYANA AND ANRIN THE HIGH COURT OF PUNJAB AND HARYANA AT
DATE OF DECISION: 12 .10.2006
1. Amended C.W.P.NO 6099 of 2005
Mohinder Singh ...Petitioner
State of Haryana and another ...Respondents.
2. CWP No.5437 of 2005
Jitender Kumar and others ...Petitioners
The State of Haryana and another ...Respondents.
3. Amended CWP No.2839 of 2005
Deepak Dahiya and others ...Petitioners
The State of Haryana and others ...Respondents.
4. CWP No.14371 of 2005
Lokesh Kumar and others ...Petitioners
The State of Haryana and another ...Respondents.
5. CWP No.6258 of 2005
Neeraj Kumar ...Petitioners
The State of Haryana and others ...Respondents.
6. CWP No.7683 of 2005
Ramesh Kumar ...Petitioner
The State of Haryana and another ...Respondents.
7. CWP No.14317 of 2005
Suman Lata ...Petitioner
The State of Haryana and another ...Respondents.
8. CWP No.4818 of 2005
Vandana Goel ...Petitioners
The State of Haryana and another ...Respondents.
9. CWP No.14370 of 2005
The State of Haryana and others ...Respondents.
10. CWP No.16951 of 2005
Neha Bansal ...Petitioner
State of Haryana and others ...Respondents.
11. CWP No.18572 of 2005
Sandeep Aggarwal and others ...Petitioners
The State of Haryana and another ...Respondents.
12. CWP No.4457 of 2005
Devinder Singh ...Petitioners
The State of Haryana and others ...Respondents.
13. CWP No.12540 of 2005
Rajiv Parshad and another ...Petitioners
The State of Haryana and others ...Respondents.
14. Amended CWP No.3768 of 2005
Subhash Chander and others ...Petitioners
The State of Haryana and others ...Respondents.
15 Amended CWP No.2897 of 2005
Chandi Ram and others ...Petitioners
The State of Haryana and others ...Respondents.
HON'BLE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE S.S.SARON
Mr.Jaspal Singh, Sr.Advocate with
Mr.G.K.Chatrath, Sr.Advocate with
Ms. Alka Chatrath, Advocate
Mr.Rajiv Atma Ram, Sr.Advocate with
Mr.Hemraj Mittal, Advocate
Mr.R.K.Malik, Advocate and
Mr.Vivek Sharma, Advocate
Mr.Jagbir Malik, Advocate
Mr.Vivek Suri, Advocate
Mr C.B.Goel, Advocate
Mr.Hari Om Attri, Advocate for the petitioners.
Mr.H.S.Hooda, Advocate General, Haryana with
Mr.M.L.Saggar, Addl.A.G., Haryana and
Ms. Palika Monga, AAG, Haryana for the respondents-State.
Mr.H.N.Mehtani,Advocate for the respondent-Haryana Public Service Commission
On the request of the counsel for the petitioners, these writ petitions (CWP Nos.6099, 5437, 2839, 14371, 6258, 7683, 14317, 4818, 14370, 16951, 18572, 4457, 12540, 3768, 2897 of 2005) are taken up for final disposal, at the motion stage. This common judgment will dispose of all the aforesaid writ petitions, as the facts as well as the legal issues are identical in all the writ petitions.
The petitioners seek the issuance of a writ in the nature of Mandamus directing the respondents to issue appointment letters to them as they have all been duly selected to the Haryana Civil Services (Executive Branch) (hereinafter referred to as the “HCS (EB)”) and/or to the Allied Services, pursuant to the result declared by the Haryana Public Service Commission respondent no.2 (hereinafter referred to as “the Commission”) on
30.12.2004. The petitioners also pray for the issuance of a writ in the nature of certiorari quashing the Notification dated 13.5.2005 (Annexure P-1) issued by the State of Haryana-respondent no.1 whereby the cadre strength of the Haryana Civil Services (Executive Branch) has been reduced from 300 to 230.
We may notice at the threshold the essential facts culled out from the pleadings, which are relevant for the adjudication of the controversy raised in these writ petitions.
The petitioners claim that they had applied in response to an
advertisement issued by respondents no.1 and 2 on 24.1.2004, for filling up 102 posts in the HCS (EB) and Allied Services. The recruitment, appointment and conditions of service of the HCS (EB) is governed by the Punjab Civil Services (Executive Branch) Rules, 1930, as applicable to the State of Haryana (hereinafter referred to as “the 1930 Rules”).
The appointments to the service are made on the recommendations of the Commission. The selection process consisted of written examination followed by interview. The procedure for selection and appointment is contained in the Schedule attached to the statutory rules known as Punjab Civil Services (Executive Branch) Haryana Amendment Rules, 2002 (hereinafter referred to as “2002 Rules”).
The advertisement dated 24.1.2004 and the subsequent selection process was conducted in accordance with the Schedule mentioned in Rule 9 of the aforesaid 2002 Rules.
The preliminary examination was held on 23.5.2004. The main
written examination was held from 1.8.2004 to 10.8.2004. The result of the main written examination was declared on 7.12.2004. Interviews were held from 15.12.2004 to 18.12.2004. The result was declared on 30.12.2004. As noticed earlier, all the petitioners were declared to have been duly selected.
They were, therefore, awaiting appointment orders when the Election Commission of India (hereinafter referred to as “the Election Commission”) announced the elections to the Legislative Assembly in the State of Haryana on 17.12.2004.
Polling was to be conducted on 3.2.2005. The Election Commission also issued a Notification dated 17.12.2004, enforcing the Model Code of Conduct which was to be observed during the period of election. Clause 3 (d) of the Model Code of Conduct provided that from the date elections are announced by the Election Commission, ministers and other authorities shall not make any ad hoc appointments in Government, Public Undertakings etc. which may have the effect of influencing the voters in favour of the party in power. Clause 4 of the Notification banned the transfer of officers/officials connected with the conduct of the elections, in a number of departments. It was further provided in Clause 4 (vi) that the ban shall be effective till the completion of elections. On 23.12.2004, the Election Commission issued another letter to the Chief Secretary of the Government with the following directions:-
“.....The Commission has therefore directed that the State Government shall not issue appointment letters to the selected candidates without the permission of the Commission so long as the model code of conduct is in operation. The Commission further directs that this directive of the Commission be implemented immediately and a compliance report sent by return fax.
This letter was followed by another letter to the Chief Secretary dated 27.12.2004, in which the following directions were issued:-
“.... I have been directed by the Commission to clarify that the ban on appointments imposed by the Commission is equally applicable to the candidates selected by the Haryana Public Service Commission and/or by any other agency in the State. Accordingly, the Commission hereby directs that the State Govt. shall not offer appointments to candidates selected by the Haryana Public Service Commission or any other recruiting
agency including the Ministries and Departments without the prior permission of the Commission till the completion of the elections in the State. Appropriate instructions to this effect may be issued to all concerned immediately.”
After the issuance of these instructions, the State of Haryana did not offer appointments to the selected candidates. The petitioners approached this Court by filing writ petitions challenging the instructions issued by the Election Commission. During the pendency of these writ petitions, the State of Haryana issued Notification dated 13.5.2005 whereby the cadre strength of the service has been reduced from 300 to 230 posts. The
petitioners allege that the aforesaid exercise has been conducted only to defeat their claim. Thus, the writ petitions have been amended and the Notification dated 13.5.2005 has also been challenged.
All the learned counsel for the petitioners have argued in unison that the respondents have illegally and arbitrarily reduced the cadre strength from 300 to 230. The reduction in cadre strength has been made in violation of 1930 Rules. The procedure prescribed under Rule 3 has not been followed. The Cadre Review Committee has not been formed.
Mr.Jaspal Singh, learned Sr. Counsel submits that the cadre strength had been fixed by Notification dated 18.11.2003. The same strength was to remain intact till December 2006, as under the Rules, the Cadre strength is to be reviewed every three year.
Therefore, even if the Notification dated 13.5.2005 is to be held valid, it can have only prospective effect. It cannot affect the vested rights of the petitioners to be appointed on the vacancies
which had existed prior to the Cadre Review that has been done by Notification dated 13.5.2005. The whole exercise, according to the learned Sr. Counsel, is mala fide, and therefore, vitiated. In support of these submissions, learned Sr. Counsel relies on the judgment of the supreme Court in the case of P.Mahendran and others vs. State of Karnataka and others, (1990) 1 Supreme Court Cases 411.
Learned Sr. counsel also made a reference to the detailed charts of the vacancies which have been attached with the pleadings. These charts, according to the learned Sr. Counsel, clearly establish that the vacancies actually exist. Since the vacancies were available, the vested rights of the petitioners for consideration for appointment could not be taken away.
Learned Sr. counsel relied on the observations of the Supreme Court in the case of N.T.Devin Katti and others vs. Karnataka Public Service Commission and others, (1990) 3 Supreme Court Cases 157. Learned Sr. Counsel further submits that some officers have been discharging functions of more than one post. Some posts have been and are, occupied by Officers who do not even belong to the HCS (EB)/Allied Services. This, according to the petitioners, would clearly establish that the action of the respondents in reducing the cadre strength from 300 to 230 is an eye-wash. The exercise has been conducted only to defeat the claims of the petitioners.
Mr.Jaspal Singh, learned Sr. Counsel has also submitted that in the guise of alteration, the respondents have redetermined the cadre strength.
The Notification dated 13.5.2005 states that it is in modification of the order dated 18.11.2003. It actually determines the strength and composition of the cadre for a period of three years from 13.5.2005 to 12.5.2008.
According to the learned counsel, the term “alter” is not synonymous with the word “change”.
The term “to change” is “to substitute one thing with another”; whereas the term “alter” is merely to do with “some change”.
Therefore, the term “alter” in Rule 3(2) and the proviso of the 1930 Rules means not a drastic change in the cadre. It envisages only some change in the cadre. It does not mean that the composition of the cadre can be changed beyond recognition. In support of this submission, the learned Sr. Counsel has relied on a Full Bench judgment of the Patna High Court in the case of Fulo Singh and others v. State, AIR 1956 Patna, 170 ((FB) and the judgment of the Allahabad High Court in the case of Zamir Qasim v. Emperor AIR (31) 1944 Allahabad 137 (FB). In Fulo Singh's case (supra), it has been observed as under:-
“(9)....... According to some, the word “alter” has a very wide significance, whereas, according to others, it is far more limited than what is conveyed by the word “reverse”.
The majority view in the Full Bench case of the Allahabad High Court concedes that the word “alter” is a less radical expression than the word “reverse” and means “change in form” without changing the underlying character of the thing to be changed.
The dissentient view in that case appears to be that the word “alter” has been used in juxtaposition with “reverse” and this implies that alteration is a process of a much more limited scope than “reversal”.
The word “alter” has merely to do with some change, while maintaining the form, the shape or figure. It has the shade of meaning similar to the word “modify” and is opposed to such meanings constituted by such words like “reverse”, “annul”
I am not prepared to accept the majority view of the Allahabad High Court that, so long as the sentence is not enhanced, there is no change in the form, although the order of acquittal
has been substituted by an order of conviction.”
To emphasize the distinction, learned Sr. Counsel relied on the
entries with regard to the terms “alter, alteration and determined” as given in RANDOM HOUSE UNABRIDGED DICTIONARY (NEWLY REVISED AND UPDATED). The aforesaid entries are as under:-
“Alter, v.t. 1. to make different in some particular, as size, style, course, or the like; modify: coat; to alter a will; to alter course. 3. to change, become different or [1350-1400; ME < OF alterer < LL alterare to worsen, deriv. Of L alter other}- alter.er, n-Syn. 1. see adjust, change.
Alteration, n. 1. the act of altering, the state of being altered: Alteration prove the dress. 2. a change, modification or to determine, determiningn. 2.something determines. 3.a graphic symbol used in ideographic writing to denote a semantic class and written to a word to indicate in what semantic category word is to be understood, thus at times distinguisable homographs.
Determined 1.resolute; staunch; the determined defenders of the Alamo. 2.decided; settled; resolved. 3.Gram. (of a phonetic feature) predictable from its surrounding context.
Learned Sr. counsel submitted that the first exercise for redetermination of the cadre strength was done in the year 1990. Rule 3 was violated when the strength was reduced from 300 to 230 as earlier it was 240. This, according to the learned Sr. Counsel, is not an alteration, but determination.
He submitted that alteration would only permit a certain amount of variation. He relies on the definition of the term “variation” as contained in the Oxford English Dictionary which is as under:-
3.The act of varying in condition, character, degree, etc. over time or distance, or among a number of instances; the fact of undergoing change or alteration, esp. within certain limits: the degree or amount of this.
4.An instance of varying or changing; a change in something, esp. within certain limits; a difference due to some change or alteration E17.
6.The action or an act of making some change or alteration, esp. (LAW) in the terms of an order, trust, contract etc.”
Learned Sr. Counsel for the petitioners further submitted that the
respondents cannot be permitted to argue that the petitioners have no right to be appointed. All the learned counsel are agreed that the petitioners do not have an indefeasible right to be appointed.
They, however, submitted that the respondents cannot be permitted to act arbitrarily only to deny appointment to the petitioners. It is submitted that the respondents are deliberately denying the appointment as the selection had been made during the regime of the previous government. Learned Sr. Counsel submitted that the power conferred on the State Government under Rule 3 cannot defeat the provisions of Haryana Civil Services (EB) and Allied Service and other Services Common/Combined Examination Act, 2002 (hereinafter referred to as “the 2002 Act”).
According to the learned Sr. Counsel, by virtue of Section 4(1) of the 2002 Act, no appointment can be made to any post or service to which the said Act applies beyond the number of posts
advertised. Section 4(2) provides that notwithstanding anything to the contrary contained in any judgment, order or decree or decision of court of law, Act, Rule, Regulation or Executive instructions, no candidate shall have right to seek appointment beyond the number of advertised posts.
Therefore, the petitioners having been duly selected would have a right to be appointed against the advertised posts.
Mr.Jaspal Singh, learned Sr. Counsel also submitted that the
petitioners are entitled to seek appointment on the equitable principle of promissory estoppel. In support of this submission, the learned Sr. Counsel has relied on the judgments of the Supreme Court in the case of Bhim Singh and others vs. State of Haryana and others (1981) 2 Supreme Court Cases 673 and a judgment of the Division Bench of the Delhi High Court in the case of Kanishka Aggarwal v. University of Delhi and
others, AIR 1992 Delhi 105.
Certain additional points were also raised by Mr.Chatrath, learned Sr. Advocate appearing on behalf of the petitioners in CWP No.14371 of 2005.
Learned Sr. Counsel submits that he will adopt the arguments advanced by Mr. Jaspal Singh, learned Sr. Advocate. He, however, emphasized that the pleas taken by the respondents are not only fallacious, but are against the record. The respondents have wrongly stated that 48 posts were increased in the Cadre at the instance of the HCS (EB) Officer's Association (Regd.). In fact out of these 48 posts, 35 have been retained. Posts which existed prior to 1990 have been abolished. Higher duties have been given to Officers of the lower cadre. All the nominees from Registers A-I, A-II and Register C have been appointed. Only candidates selected against Register B, as a
result of the competitive examination, have been denied appointments.
Factually, he submitted that vacancies are still available against which the petitioners can be appointed. Procedure prescribed under the Rules has to be meticulously followed. In support of this submission, learned Sr. Counsel relies on the judgments of the Supreme Court in the cases of State of Uttar Pradesh v. Singhara Singh and others, AIR 1964 Supreme Court 358,
Hukam Chand Shyam Lal v. Union of India and others, AIR 1976 Supreme Court 789, Chandra Kishore Jha v. Mahavir Prasad and Ors, JT 1999 (7) SC 256, M.S.Ahlawat v. State of Haryana and Anr. JT 1999 (8) SC 530. Learned Sr. Counsel also submitted that the Commission is a constitutional body. In normal circumstances, recommendations of the Commission deserve to be given full respect and accepted in the absence of proven mala fide. In support of this submission, learned Sr. Counsel relied on a Division Bench judgment of this court in the case of Raj Kumari v. State of Punjab and others, 2005(1) SCT 287 and a single Bench judgment of this court in the case of Paramvir Singh and others v. State of Punjab and others, 2003 (4) RSJ 162. As a parting shot, learned counsel has relied on the latest judgment of the Supreme Court in the case of Inderpreet Singh Kahlon and others v. State of Punjab and Ors., JT 2006 (5) SC 352. He submits that pendency of the Vigilance or CBI enquiry is no justification to deny appointments to the petitioners. Such a decision could only be taken on completion of the enquiry; that too, only after giving an opportunity to the petitioners to meet, any adverse findings that may be recorded in the enquiry.
Learned Sr. Counsel further submitted that the reliance placed by the respondents on the Full Bench judgment of this Court in the case of Amarbir Singh and others vs. State of Punjab and others, 2003 (5) SLR 398 is misplaced. The aforesaid judgment has been specifically over-ruled by the Supreme Court.
Mr. Rajiv Atma Ram, learned Sr. Advocate appearing on behalf of the petitioners in CWP No.5437 of 2005, has also adopted the arguments of Mr. Jaspal Singh, learned Sr. Advocate. He has, however, made detailed independent submissions also. Learned Sr. Counsel submitted that under Clause 7 (vi) (d) of the Model Code of Conduct for elections, only an ad hoc appointment cannot be made. Appointment on regular basis can be made.
Learned Sr. Counsel relied on a Division Bench judgment of this
Court in the case of Babita Gupta vs. State of Punjab and others, 1998(4) RSJ 408 and a judgment of the Supreme Court in the case of I.J.Divakar and others v. Government of Andhra Pradesh and another, AIR 1982 Supreme Court 1555. Learned Sr. Counsel further submitted that requisition once sent to the Commission for making recommendations for
appointment could not be subsequently withdrawn. In the aforesaid case, a direction was given to complete the selection and make the appointments. It was further directed that only on exhaustion of the list, other appointments could be made. Learned Sr. Advocate further reiteriated that appointments cannot be denied without legal justification. He relied on the judgment R.S.Mittal v. Union of India, JT 1995 (3) S.C. 417.
Learned Sr. Counsel further reiterated that even if cadre review is accepted, vacancies are still available against which the petitioners can be appointed. He submitted that in accordance with 1930 Rules in a block of 28 vacancies, 19 would fall to
the share of the direct recruits. It is accepted by the respondents that promotees are working in the service in excess of their quota. However, the respondents plead that the excess is due to the unrealistic inflation of the cadre strength by the previous government. Learned Sr. Counsel pointed out that direct recruitment in this case is also open to candidates from the
different Registers. Government cannot challenge the correctness of the orders passed by the previous government being successors in office and now as respondents in the present writ petition. In support of the proposition, learned Sr. Counsel relied on a judgment of the Supreme Court in the case of State of Assam and anr. v. Raghava Rajgopalachari, 1972
SLR 44, a judgment of the Delhi High Court in the case of Joginder Pal Singh v. Union of India and others, 1983 (3) SLR 252 and a judgment of this Court in the case of Punjab Tourism Development Corporation vs. Presiding Officer, Labour Court, Amritsar and others, 1997 (1) AIJ 15.
Learned Sr. counsel has thereafter emphasized the adverse effects of the denial of appointments at this stage and also the prejudice it would cause to the petitioners. They would be adversely affected in the fixation of their salary, seniority and benefit of experience. He submitted that in this case, interim orders restraining the appointments ought not to have been given as the selected candidates cannot be compensated. He relied on a Full Bench judgment of this Court rendered in the case of Sukhdev Singh Sidhu and others v. State of Punjab and others 2003 (3) RSJ 299.
Learned Sr. Counsel further submitted that appointment on 37 posts in the executive branch and all the 44 posts of allied services cannot even be denied on the ground of cadre review.
The cadre review is limited only to the certain number of posts falling in the Executive Branch. There is no finding till today that selection is vitiated. Enquiry is still going on. Mere allegations of irregularities are not sufficient to deny appointment to the petitioners. Learned Sr. Counsel relied on a Division Bench judgment of this Court in the case of Girish Arora v. State of Haryana, 1997 (3) SCT 240. Reiterating the submissions of the petitioners on the arbitrariness of the cadre review committee, the learned Sr. Counsel submitted that in this exercise, posts which fall to the share of direct recruits have been deliberately reduced to accommodate promotees. Otherwise, those promotees working in excess of the quota would have to be reverted. It is further submitted that a closer look of the cadre review would show that the posts deleted are not the posts which are alleged to have been increased by the former regime.
The plea raised by the respondents is, therefore, against the record. The respondents have no legal justification for denying the appointment to the petitioners. The instructions issued by the Election Commission in letters dated December 23, 24 and 27 of 2004 are beyond their jurisdiction. The Model Code of Conduct for holding elections does not cover regular appointments. It only covers ad hoc appointments.
Mr.P.S.Patwalia, learned Sr. Counsel appearing on behalf of the
petitioners in Amended CWP No.2839 of 2005 has also adopted the arguments of the earlier counsel appearing for the petitioners. Mr. Patwalia, learned Sr. Counsel has further made a grievance that prior to elections, it had been announced at political rallies as well as in the newspapers that if the Congress Party came to power, it would not make any appointments on
the basis of the selections made during the time of the previous regime.
This, according to the learned Sr. Counsel, is a clear indicator that the whole exercise for reduction of the cadre strength is mala fide. It has been undertaken only to deprive the petitioners of the appointments, after being duly selected in accordance with law. He has further submitted that the allegation that the Commission has rushed through the selection, is contrary to the record.
Learned Sr. counsel pointed out that the selection has been made on the basis of the 2002 Rules which have been published on 30.9.2002. Under these Rules, time frame is prescribed. In accordance with these rules, first selection was made in the year 2003. The selection was challenged in the Supreme Court. State of Haryana filed an affidavit stating that time frame will be complied with. Rule 3 prescribes the Scheme for each year. The result was not declared because of the interim stay granted by this court which was subsequently vacated by the Supreme Court. Thus, the result was declared on 30.12.2004. With regard to the deliberate inflation of the cadre strength, learned Sr. Counsel submitted that the facts have been wrongly pleaded. In 2003, total of 48 posts were added.
Besides, 35 posts exist even today. The Government has abolished even the posts which had continued since 1990.In any case, even if the cadre is reduced, still 11 posts are vacant. The respondents have themselves pleaded that 10 posts have been kept for unforeseen circumstances. Some of the petitioners can still be accommodated, in case the present government was to act in a fair and reasonable manner.
Mr.R.K.Malik, learned counsel appearing on behalf of the petitioners in CWP No.2897 of 2005, submitted that even if the post in the cadre is to be abolished, it must be a functional abolition and not notional. In support of the proposition, the learned counsel relied on a Division Bench judgment of this Court in the case of Prem Chand, Naib Tehsildar vs. The State of Haryana 1989 (2) SLR 556. In the present case, abolition of posts is only a paper-transaction. Functions on these posts have in fact increased.
Additional charge has been given to numerous promotee officers. These officers are occupying the posts meant for direct recruits. Learned counsel further submitted that even if the cadre is reduced from 300 to 230, still appointments should be made on the 230 posts. Even then 156 posts would fall to the share of direct recruits. Against this only 119 direct recruits are working.
Therefore, 37 more appointments can be made, even on the basis of the reduced strength. Learned counsel submitted that there is no justification for denying even provisional appointment to the petitioners, subject to the outcome of the enquiry. Action of the respondents is vitiated by mala fide and arbitrariness.
According to the learned counsel, it is a complete negation of Articles 14 and 16 of the Constitution of India.
On the other hand, Mr. H.S.Hooda, learned Advocate General,
Haryana submitted that the Government has power to review the cadre strength. Recommendations were made by the Commission, even after the letter dated 27.12.2004 written by the Election Commission. Besides, a large number of writ petitions have been filed alleging that the selection was tainted.
Now the petitioners have filed the present writ petitions.
Referring to the 1930 Rules, the learned Advocate General submitted that Rule 3 gives wide power to the Government to review the cadre even within three years. The rule has to be read as a whole. The Government has absolute discretion to restructure the cadre. No reason as such has to be recorded. It
has to be a subjective satisfaction of the Government.
Redetermination of the cadre strength is a purely administrative exercise resulting in a purely administrative order. At the time when the decision was taken to redetermine the cadre strength from 300 to 230, the petitioners did not have any legal right.
Therefore, no Mandamus can be issued by this Court directing that the petitioners be appointed. The appointments will
undoubtedly be made in accordance with the rules. Learned Advocate General further submitted that there is no arbitrariness in the decision taken by the respondents. But in this case detailed reasons are available on the record, which have been made available to the Court. He further submits that a conscious and responsible decision has been taken by the Council of Ministers.
Moreover, in redetermination of the cadre, the Scheme under the
Rules has been meticulously followed. Material facts have been taken into consideration. The Courts in judicial review will only examine the decision making process and will not examine the decision on merits. Once the decision is based on due consideration of the relevant material, it cannot be said to be arbitrary, capricious or in colourable exercise of power.
Learned Advocate General further submitted that the cadre strength was reduced because the cadre strength of IAS in the State was reduced. The earlier Cadre Review Committee had initially recommended cadre strength of 180. Then representations were received from the HCS (EB) Officers for
increase by 48 posts. This was accepted by the previous regime, without any justification. Ultimately, the cadre strength was inflated to 300.
Therefore, a conscious decision has been taken to reconsider and refix the cadre strength. The Government has now fixed the cadre strength at 230.
In other words, the Government has accepted the earlier recommendations.
There was no need to reconstitute a fresh cadre review Committee. The earlier Cadre Review Committee has fixed the cadre strength at 230. It was increased to 300 on the Government accepting the representation of the HCS officers and on the direction of the then Chief Minister. Learned Advocate General emphasized that as a principle of law, a writ in the nature of Mandamus cannot be issued for appointments merely on the selection of the candidates. No legal right of the petitioners has been infringed. In support of the aforesaid proposition of law, the learned Advocate General relied on the following judgments of the Supreme Court and the High Courts:-
(1)The State of Haryana vs. Subash Chander Marwaha and others (1974) 3 Supreme Court Cases 220;
(2)Mani Subrat Jain and others vs. State of Haryana and others, 1977
(1) Supreme Court Cases 486;
(3)Jatinder Kumar and others vs. State of Punjab and others (1985) 1 Supreme Court Cases 122
(4)Shankarsan Dash v. Union of India (1991) 3 Supreme Court Cases 47;
(5)Dr.H.Mukherjee v. Union of India and others, 1994 Supp.
(1) Supreme Court Cases 250;
(6)Dr.P.K.Jaiswal v. Ms. Debi Mukherjee and others, (1992) 2 Supreme Court Cases 148;
(7)Girish Arora and others vs. State of Haryana and another, 1997(5) SLR 660;
(8)Ludhiana Central Cooperative Bank Ltd. v. Amrik Singh and others (2003) 10 Supreme Court Cases 136;
(9)Hashni Kumar vs. State of Punjab and others, 2004(7) SLR 793;
(10)Sunita Rani and others vs. State of Punjab and others, 2005(1) RSJ 712
(11)Bhupender Singh vs. State of Haryana, 2005(3) RSJ 724;
(12)State of Haryana etc. vs. Satya Parkash etc., 1990(1) PLR 352;
(13)S.S.Dhanoa v. Union of India and others, JT 1991(3) SC 290;
(14)S.Partap Singh v. State of Punjab, AIR 1964 Supreme Court 72;
(15)E.P.Royappa v. State of Tamil Nadu and another, AIR 1974 Supreme Court 555;
(16)Y.Katoch v. Union of India and another, 2003(3) RSJ 474;
(17)N.Ramanatha Pillai v. State of Kerala, AIR 1973 Supreme Court 2641;
(18)M/s Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others, AIR 1979 Supreme Court 621;
(19)National Buildings Construction Corporation v. S.P. Singh and others, AIR 1998 Supreme Court 2779;
(20)Dr.Ashok Kumar Maheshwari v. State of U.P. And another, AIR 1998 Supreme Court 966.
(21)Harbans Singh Jalal, Ex.MLA, Bathinda v. Union of India, (1997) 2 PLR 778 and
(22)Haryana Public Service Commission through Controller of Examination v. State of Haryana and others, 2005(3) PLR 486.
Relying on the observations made in the case of Jatinder Kumar (supra), the Advocate General has submitted that the Government is answerable to the Legislature, in case it decides not to accept the recommendations of the Commission. Reasons have to be given by the Government to the Legislature.
Therefore, it cannot even be said that absolute power has been vested in the Government to accept or not to accept the recommendations. The procedure to be adopted by the Government in case the recommendations of the Commission are not accepted, is given in Article 320 sub-article (3) of the Constitution of India. The aforesaid procedure has been complied with. The reasons will be made available to the Legislature after completion of formalities. Factually, the learned
Advocate General submits that the petitioners cannot be given the jobs as they simply do not exist. In any event, enquiry is still pending. No statutory right exists in favour of the petitioners to seek issuance of a writ in the nature of Mandamus.
Mr. Mehtani, learned counsel appearing for the Commission
submitted that the recommendations have been made according to the requisition. At the time when the recommendations for appointment were made, the vacancies did exist. According to the learned counsel, subsequent events would not affect the cadre strength. The State has taken a contradictory stand. He submitted that allegations against the Commission have been made only to nullify the selection. He relied on the Full Bench
decision of this Court rendered in the case of Jaskaran Singh Brar v. State of Punjab and others, 2005 (1) RSJ 508.
Learned counsel further submitted that the Government can refuse to accept the recommendations of the Commission only in rarest of rare cases. The action of the Government in the present case has to be deprecated. It is a deliberate attempt to overawe
the Commission in its independent functioning from the Government.
Learned counsel further submitted that the Election Model Code of Conduct does not cover regular selections. The Notification itself is related only to ad hoc selection. The selection is impartial. The selection was not tainted with irregularities. The respondent-State of Haryana has not put forward any material to show as to how the selection was tainted. Learned counsel
relied on a Division Bench judgment of this Court in the case of Girish Arora (supra). According to the learned counsel, the relevant principles have been culled out in para 36 of the said judgment.
In reply, Mr. Hooda, learned Advocate General has submitted that in the absence of mala fide, the Court will refrain from interfering with the decision of the Government. According to him General, allegations of mala fide are to be proved beyond reasonable doubt. In support of this proposition, the learned Advocate General relied on the judgments of the Supreme Court rendered in the cases of S.Partap Singh (supra), E.P.Royappa (supra) and a Division Bench judgment of this Court rendered in the case of Y.Katoch (supra). Learned Advocate General further submitted that whether or not any particular post is to be abolished is a policy decision, and therefore, cannot be set aside in writ proceedings.
He relied on the judgment of the Supreme Court in the case of
N.Ramanatha Pillai (supra). Rebutting the arguments of Mr. Jaspal Singh on estoppel, learned Advocate General relied on the judgment of the Supreme Court in the case of M/s Motilal Padampat Sugar Mills Co. Ltd. (supra). Learned Counsel submitted that directions given by the Election Commission are not in excess of its jurisdiction.
We have noticed the arguments of the learned counsel for the parties very elaborately as the matter had been argued at length. As noticed in the earlier part of the judgment, an enquiry by the State Vigilance Bureau has already been ordered in some of the writ petitions filed by some of the unsuccessful candidates. We had proposed to adjourn these matters sine die also, to be listed on the conclusion of any enquiry.
However, counsel for the petitioners had very strenuously argued that no enquiry has been ordered in the present cases and the writ petitions can be heard on merits.
Although we have noticed the arguments of each individual counsel, independently and elaborately, it would not be necessary to consider them individually. They can all be considered together. The first argument of learned Sr.Counsel for the petitioners is about the illegal reduction of cadre strength.
From the pleading of the parties, it emerges that the strength and composition of the cadre is to be determined by the Government from time to time. Exercising this power, the Government determined the strength of the cadre on 7.11.1990 at 240 posts. The next Review Committee on 20.10.1999 again fixed the cadre strength at 240 posts. The then Government was of the opinion on 25.5.2001 that there is a need to reduce the cadre strength of HCS to about 210 posts. Then the cadre strength was reviewed under Rule 3 in the year 2002. The Cadre Review Committee was requested to add 17 posts on a representation made by members of the HCS (EB) Officers' Association (Regd.). The Cadre Review Committee accepted only eight posts. The Cadre strength was determined at 223.
Then again on the representation of the aforesaid Association, 48 posts were added in the cadre. However, 26 posts were deleted. The actual cadre was determined at 180 and the cadre strength for recruitment was determined at 271.
Thereafter there was an addition of 20 more posts. The permanent cadre was made 200 and the recruitment strength was fixed at 300. Thereafter 20 more posts were added. After conducting a rationalisation exercise, the Government fixed the cadre strength at 230 by order dated 13.5.2005. The aforesaid facts indicate that the argument of the petitioners is clearly based on misconception that the cadre strength has been reduced. It appears that the cadre strength has been between 180 to 230 posts from 1990 onwards.
It would, therefore, not be possible to accept the submission of the learned counsel for the petitioners that there has been any unfair motive in the issuance of the Notification dated 13.5.2005 by the respondents to fix the cadre strength. We are also unable to say that the redetermination and determination of the cadre strength is contrary to Rule 3 of the 1930 Rules.
Rule 3 provides as under:-
“3.Strength of Cadre-
(1) The strength and composition of the Haryana Civil Service
(Executive Branch) Cadre shall be such as may be determined by the Government from time to time.
(2)The Government shall, at the interval of every three years, re-examine the strength and composition of the Haryana Civil Service (Executive Branch) Cadre and may make such
alterations therein as it deems fit:
Provided that nothing in this rule shall be deemed to affect the power of the Government to alter the strength and composition of the Cadre at any time.”
A bare perusal of Rule 3 (1) would show that the strength and composition of the service has to be determined by the Government from time to time.
This Clause is self-contained and is not controlled by any subsequent provision of the Rule. Rule 3(2) postulates that the Government shall reexamine the strength and composition of the cadre at the interval of every three year. This Clause cannot be read to mean that there can be no reexamination of the cadre strength prior to three years. In our opinion, the more reasonable interpretation would tend to suggest that the strength and composition of the cadre can be re-examined by the Government at any time. In case, for any reason, there is no re-examination of the cadre for some time, it shall certainly be done after interval of every three year. If upon re-examination at the interval of three years, the Government deems it fit to make any alteration therein, it may do so. This interpretation flows naturally when Rule 3 is read as well. If there is any doubt with regard to
the power of the Government to re-examine the strength of the cadre prior to three years, after a particular redetermination, the same is certainly removed by the proviso. It is clearly provided that nothing in the main rule shall be deemed to affect the power of the Government to alter the strength and composition of the cadre at any time (Emphasis supplied).
We, therefore, hold that the Government had the power to re-examine the cadre strength and to issue the Notification on 13.5.2005. We are unable to accept the submission of Mr. Jaspal Singh, learned Sr.Counsel that the cadre strength could not have been redetermined prior to three years from the last notification dated 18.11.2003. We cannot accept the submission that till December 2006, the cadre strength as fixed on 18.11.2003 will remain intact, inspite of the Notification dated 13.5.2005. Furthermore, it would not be possible to hold that the redetermination of the cadre strength by Notification dated 13.5.2005 would not fall within the purview of the terms “alter” or “alterations” as envisaged under Rule 3 (2) and the proviso to
Rule 3. We have no reason to doubt the correctness of the definitions of the terms “alter”, “alteration” and “variation” as given in the RANDOM HOUSE UNABRIDGED DICTIONARY (SUPRA) and the definition of the term “variation” as contained in the Oxford English Dictionary. The Patna High Court has noted the view taken by the majority of the Full Bench of Allahabad High Court. A perusal of the same would show that the term “alter” has been interpreted in contrast to the word “reverse”.
The word “reverse” has been equated to terms like “annul” or “rescind” whereas the word “alter” has been expressed to mean only some change without changing the underlying character of the thing to be changed. These observations, however, would be of no assistance to the case put forward by Mr. Jaspal Singh.
We are of the opinion that the Notification dated 13.5.2005 does not bring about any drastic change in the cadre strength. It rather reinforces the decision of the earlier Cadre Review Committee, prior to the artificial inflation of the cadre by addition of 60 posts.
It is also not possible to accept the submission of Mr. Jaspal Singh and the other counsel appearing on behalf of the petitioners that since no Cadre Review Committee was formed, the Notification dated 13.5.2005 is in noncompliance of Rule 3.
We have earlier reproduced the recital in the Notification dated 13.5.2005. A perusal thereof clearly shows that the Notification has been issued by the Governor under Rule 3. The strength of
the cadre had been determined for a period of three years i.e. 13.5.2005 to 12.5.2008. We are of the opinion that in view of the wide powers enjoyed by the Government under Rule 3 to review the cadre strength at any time, the dates mentioned in the Notification cannot be held to be sacrosanct. It is not that any subsequent government would be powerless to re-determine
the cadre strength prior to 12.5.2008. As already observed by us, the three years provided under Rule 3 is a maximum interval within which the Government has to redetermine the cadre strength. The period so prescribed is not a bare minimum. We do not agree with the submission of Mr. Jaspal Singh that the Notification dated 13.5.2005 has not been issued by the Government. The Notification issued in the name of the Governor would not make it, any-the-less, a notification issued on behalf of the Government. Indeed, under Article 166 of the Constitution of India, all executive action of the Government of a State is required to be expressed to be taken in the name of the Governor. We are, therefore, not at all impressed by the arguments of Mr. Jaspal Singh that the notification dated 13.5.2005 has not been made by the Government and that there was also no requirement to have a fresh cadre review. We are inclined to accept the explanation given by the learned Advocate General, Haryana. Mr. Hooda, on the basis of the pleadings and the record has demonstrated that since the original recommendation made by the Cadre Review Committee in respect of 240 posts was accepted, there was no need to constitute a fresh Cadre Review Committee.
This apart, we are of the opinion that under Rule 3, the power of determining the strength and composition of the cadre vests in the Government and not in any particular committee of the Government. The Cadre Review Committee is merely an instrument of the Government to suggest a proper strength of the cadre. The ultimate decision has to be taken by the Government. It is also an undisputed fact that the cadre of IAS Officers has been reduced by 10 posts. Therefore, fixing of the cadre strength at 230 posts cannot be said to be whimsical or irrational. The Government has taken a conscious decision for redetermination of the cadre, in normal circumstances, there would be little scope for the Court to interfere in the decision.
Undoubtedly, the Courts can exercise the power of judicial review of executive power in cases of clearly proven mala fide, arbitrariness, or where irrelevant considerations have materially affected the executive decision. These powers are aimed at examining the decision making process and not the merits of the decision itself. The principles with regard to the scope and ambit of the power of judicial review by the High Court under Articles 226/227 of the Constitution have been extensively examined by the Supreme Court in a catena of land-mark judgments. In the case of S.P.Gupta V. Union of India and another, 1981 (Supp) SCC 87, the Supreme Court has observed as under:-
“It is also necessary for the Court to bear in mind that there is a vital distinction between locus standi and justifiability and it is not every default on the part of the State of a Public authority that is
justiciable. The Court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and the Legislature by the
Again in the case of Tata Cellular vs. Union of India, JT 1994(4) SC 532, the Supreme Court considered the scope of judicial review and approved the observations of Lord Brightman in the case of Chief Constable of the North Wales Police Versus Evans, (1982) 3 All E.R. 141 (at page 154). In paragraph 91 of the aforesaid judgment, the Supreme Court observed as follows:-
“91.Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.”
The Supreme Court made the ratio even further clear in paragraph 95 of the judgment as under:-
“95.Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken.
The extent of the duty to act fairly will vary from case to case.
Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:-
(i)Illegality: This means the decision-maker must understand correctly the law that regulates his decisionmaking power and must give effect to it.
(ii)irrationality, namely, Wedenesbury Unreasonableness.
Applying the aforesaid test, we have examined the record produced by the State of Haryana with regard to the reduction in the cadre strength.
The entire record has been made available by the State of Haryana, without any hesitation. Mr.Jaspal Singh, learned Sr. Counsel and other counsel appearing on behalf of the petitioners were permitted to examine the record by order dated 10.11.2005 passed by this Court.
Learned counsel for the petititioners submit that the plea taken by the State of Haryana that the cadre was unnecessarily inflated by the previous Government is not supported by the record. The Government had not reached any such decision. They made a particular reference to the order of reduction of the cadre dated 22.4.2005. Mr.Jaspal Singh, learned Sr. Counsel submitted that the language of the note is an eloquent example
of the bureaucratic non-committal language. He made a particular reference to the following paragraphs:-
“This case is regarding the fixing of strength of HCS (EB) cadre in the State. The last cadre review was held in the year 2003 when the strength of this cadre was raised from 240 to 300 in one go. The issue of cadre management and the need for
removing the distortions that have crept in the cadre due to a very heavy, unwieldy size of the service has necessitated a fresh look at the cadre strength.
As is well known that any post in a cadre is created keeping in view the requirement of a work in administration and availability of funds to meet the expenditure to be incurred on such posts.
While doing so, full justification is required to be given for creating a post. The normal practice in Government is that when the exigency of work requires, a post is created on temporary basis for a year and its continuation is reviewed every year
and if it is found necessary to have the post to meet the requirement of work then it is allowed to continue for another year. Usually a post is allowed to be continued on temporary basis for a period of five years and then a decision is taken to
abolish it or to convert it into a permanent post.
While doing so the guiding factor is the requirement of work and the expediture involved in it. Might be, these factors were considered by the Committee constituted to review this cadre in
the year 2003.
However, it is also felt that a more analytical and deeper exercise was required to be undertaken which perhaps could not be done at the time. It is felt that perhaps the work assessment of various departments was not undertaken and in the absence of complete data/information the Committee had to decide without the benefit of an analytical work study.”
According to Mr. Jaspal Singh, learned Sr. Counsel, the aforesaid extract does not conclude that there is a deliberate effort by the previous Government to inflate the cadre strength. We are of the opinion that the Sr. counsel is grossly unfair in assessing the order dated 22.4.2005 passed by the Special Secretary Political and Services. If one reads the entire note, a
clear picture emerges of the entire case which has been set out by the respondents in the written statement. In fact the order is much more incisive than the pleadings. In our opinion, the noting portion of the official record referred to by Mr. Jaspal Singh, learned Sr. Counsel would even otherwise not create any legal right in favour of the petitioners. The Supreme Court in the case of Puranjit Singh vs. Union Territory of Chandigarh and others, 1994 (5) SLR 280 has clearly held as follows:-
“6.......However, in spite of the clear position in law, he has been pursuing his misplaced claim for counting his seniority prior to his fresh career of Assistant Engineer as a direct recruit and for
promotions on the basis of the promotions which he had earned in the organization where he was sent on deputation. For this purpose, he is relying upon certain notings either of the Chief Engineer or the Home Secretary of the Chandigarh
Administration. Although it is not known how he came in possession of the said notings, it was improper on his part to produce these notings in the Court proceedings, assuming that he had come in possession of them authorisedly. As a
responsible officer he ought to know that notings in the departmental files did not create any rights in his favour. It is the orders issued by the competent authorities and received by him which alone can create rights in his favour. This is apart from the fact that even those notings did not spell out any order in his favour. In the circumstances, the authorities on which the learned counsel for the petitioner relied are inapplicable to the facts of the present case.”
In view of the above ratio of law, the submissions of Mr. Jaspal Singh could be rejected, without any further consideration.
However, in the interest of justice, we have scrutinized the relevant record. Even though, the Court would rather refrain from commenting on the rest of the order in detail, we must notice that the order records the entire history of the recruitment to the cadre since the formation of the State of Haryana. The categoric conclusions indicated in the order are that :-
(a) From the years 1972 to 2000, the annual intake into the cadre was 10 to 20, excepting the year 1980 when there were only 25 HCS Officers;
(b) In the years 2002 and 2003, the intake was 58 due to a combined examination.
(c ) Although for the past 39 years i.e. since the inception of the cadre, the strength has been around 240.
(d)The actual strength of Officers in position in the Cadre has been below 200 for most of the years.
(e) It is only recently that the cadre was around 220 officers.
Over the years there was no additional demand for HCS Officers from any quarter.
(f) The prevailing strength of HCS Officers is sufficient and adequate to meet the requirements of administration. The analysis of the requirement of work done reveals that the present strength of 240 posts is on the higher side.
(g) Even taking into account, provisions for leave or training, the maximum requirement would be 250 posts, but 250 posts are not available within the State of Haryana. Thus, HCS being a premier service of the State, any excessive recruitment
would be a sheer waste or drain on state exchequer.
(h) The strength of the cadre was reviewed in the year 1999 and, after taking all the relevant factors/aspects into consideration, it was decided that there was no need to increase the strength of
(i)Again the cadre strength was reviewed in the year 2003 when suddenly 60 posts were added.
(j) During these four years i.e. 1999 to 2003, there has been no such thing in the administration which should warrant induction of more HCS officers.
(k) The activities of the State in various departments have been practically the same which were in the year 1999.
(l)During this period, no new department or undertaking of the Government has been created which requires the services of HCS Officers.
(m)Therefore, this addition of 60 posts in this cadre seems to be artificial or not justified. (Emphasis supplied).
Having recorded the aforesaid reasons, the Special Secretary gave the final conclusion as under:-
“This examination makes it clear that the increase in HCS cadre strength has been artificial and not commensurate with the requirement of administration. The addition of 60 posts made in
the year 2003 may be done away with and the strength of HCS (E.B.) cadre may be fixed at 230, as per details on NP-32.”
In our opinion, the reasons given above justify the conclusion reached by the Government. The aforesaid reasoning given by the Special Secretary was placed before the CM who has approved the same on 29.4.2005. A perusal of the record also indicates that the Cadre Review Committee to which much reference was made by the learned counsel for the petitioners
was constituted by an order issued in the name of the Governor of Haryana dated 25.6.2003. It consisted of a Chairman, two Members and a Member Secretary. All the four were IAS Officers. The Chairman belonged to the 72nd Batch. The two members belonged to the 75th Batch and the Member Secretary belonged to the 85th Batch. The Committee had been given only
two weeks to submit its report. The first meeting of the Committee was held on 1.7.2003. On 2.7.2003, a notice was issued to all the Financial Commissioners and Principal Secretaries and Administrative Secretaries to the Government of Haryana. They were requested to assess the requirements
of the HCS (EB) Officers in the departments and requested to submit the same to the Member Secretary. The Committee had submitted a unanimous report on 20.8.2003. The final assessment of the cadre as noticed earlier is 230 posts. This was increased on the specific orders of the Chief Minister to 300.
Therefore, in our opinion, the record also leads to the conclusion that there was hardly any need for forming a new Cadre Review Committee.
The strength recommended by the earlier Committee was merely reiterated in the order dated 22.4.2004. There is no mandate under Rule 3 for the formation of a Cadre Review Committee consisting of a particular number of members. In fact, the Member Secretary who participated in the deliberations of the Cadre Review Committee which culminated in the Notification dated 18.11.2003 is the same Officer who has now made the noting dated 22.4.2004, on the basis of which the Notification dated 13.5.2005 has been issued. He was the junior-most member of the Committee. Therefore, he has adopted a very cautious and polite language to make his point. But at the same time, he has not caused any embarrassment to his seniors. This attitude of the Officer is to be commended and not condemned. It certainly cannot be used as a lever to doubt the efficacy and the sincerity of the note. Therefore, we are unable to agree with the submission of Mr. Jaspal Singh that there is any infringement of Rule 3 in any manner whatsoever in determination of the Cadre strength by Notification dated 13.5.2005.
We also do not agree with the submission of the learned counsel for the petitioners that the decisions of the State Government for fixing the cadre strength at 230 posts is vitiated by mala fide. In our opinion, the learned Advocate General has correctly relied on the judgment of the Supreme Court in the case of S.Partap Singh (supra). In the aforesaid judgment, the Supreme Court has clearly held as follows:-
“8. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by Government of its powers. While the indirect motive or purpose or bad faith or personal ill-will is not to be held
established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the appellant has to establish in this case, though this may sometimes be done (See Edgington v. Fitzmaurice, (1884) 29 Ch D 459). The difficulty is not lessened when one has to establish that a person in the position of a minister apparently acting in the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim.
We must, however, demur to the suggestion that mala fide in the sense of improper motive should be established only by direct evidence that is that it must be discernible from the order impugned or must be shown from thenotings in the file which
preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts.”
This rule has been reiterated by the Supreme Court in the case of E.P.Royappa (supra) in the following words:-
“92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands
proof of a high order of creditibility.”
To further justify the determination of cadre strength of 230 posts, the learned Advocate General, Haryana has placed heavy reliance on the observations made by the Supreme Court in the case of N.Ramanatha Pillai (supra). In this case, it has been held by the Supreme Court as follows:-
“14.The first question which falls for determination is whether the Government has a right to abolish a post in the service. The power to create or abolish a post is not related to the doctrine of pleasure. It is a matter of governmental policy. Every sovereign Government has his power in the interest and necessity of internal administration. The creation or abolition of post is dictated by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general public.”
The law with regard to creation and abolition of posts was again
reiterated by the Supreme Court in the case of S.S.Dhanoa v. Union of India and Ors. JT 1991(3) S.C. 290. In paragraph 30 of the judgment, it has been clearly held as follows:-
“30. The last of the contentions advanced on behalf of the petitioner i
DINESH KUMAR AND ANOTHER Vs HARYANA PUBLIC SERVICE COMMISSION AND ANOTHERIN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: April 01, 2009
1. CWP No. 678 of 2009
Gourav Jain Vs. Haryana Public Service Commission
2. CWP No. 975 of 2009
Parveen Chauhan Vs. State of Haryana and another
3. CWP No. 21152 of 2008
Sukram Pal Vs. Haryana Public Service Commission and another
4. CWP No. 180 of 2009
Khatri Saurabh Satyapal Vs. Haryana Public Service Commission and others
5. CWP No. 4686 of 2009
Amit Ludri Vs. Haryana Public Service Commission and another
6. CWP No. 5022 of 2009
Dinesh Kumar and Vs. Haryana Public Service Commission and another
7. CWP No. 5108 of 2009
Rajeshwar Kaushik Vs. Haryana Public Service Commission and another
8. CWP No. 5132 of 2009
Rahul Garg Vs. Haryana Public Service Commission and another
Hon'ble Mr. Justice Ajay Tewari
for the petitioners.
Mr.Harish Rathee, Senior DAG, Haryana.
Mr. T.S.Dhindsa, Advocate for the respondent-Commission.
Mr. Karminder Singh, Advocate for the respondent- Punjab and Haryana High Court.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Ajay Tewari, J.
Civil Writ Petitions bearing Nos. 678 of 2009, 975 of 2009, 21152 of 2008, 180 of 2009, 4686 of 2009, 5022 of 2009, 5108 of 2009 and 5132 of 2009 involve common questions of law and fact and are being decided by a common order. On the last date learned counsel for the respondent No.2 had sought time for filing reply which has not been filed even today and time is again sought. However, when arguments were being addressed on the question of the interim relief I came to the opinion that reply of the said respondent may not be necessary by reason of the view I am proposing to take.
The petitioners have challenged the conduct of the preliminary examination for the HCS (Judicial Branch) by way of these writ petitions.
The ground of challenge are primarily two: firstly that 84 questions have been set out of the prescribed syllabus and that there are some questions which are palpably wrong, that is to say they either have no correct answer or more than two correct answers.
Adverting to the first argument it is stated that that the syllabus prescribed was as follows:-
The syllabus of the Examination will be as contained in Schedule under rule 9 of part C of Rules relating to the appointment of Civil Judge (Junior Division) in Haryana,which is appended below:-
Sr.No. Paper (All Compulsory) Description of Subjects Max. Marks 1 Civil Law-1 Code of Civil Procedure, Punjab Courts Act, Indian Sales of Goods Act, Indian
Partnership Act, Specific Relief Act and Indian Evidence Act, Indian Contract Act 200
2 Civil Law-II Hindu Law, Mohammedan Law and Customary Law, Law of Registration and Limitation 200 3 Criminal Law Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act 200 4 English composition A choice of three essays of general topics 200 5 Language Hindi (in Devnagri Script) 100 Sr.No. Paper (All
Compulsory) Description of Subjects Max. Marks SUB TOTAL 900 6 Viva Voce To judge the personal qualities of the candidate 120 TOTAL 1020 NO BOOKS ARE PRESCRIBED FOR ALL THESE PAPERS SCHEME OF EXAMINATION The examination shall be conducted in three stages namely, (i) Preliminary examination (ii) Main examination and (iii) Viva voce (a) Preliminary Examination :-
The preliminary examination will be of two hours duration and will have 120 questions. Each correct answer will carry four marks and for every wrong answer one mark will be deducted However, no credit or discredit will be given for the questions not attempted. Questions in preliminary examination shall be from the syllabus prescribed for the main examination.
Candidates shall be expected to have a general and basic knowledge of the main subjects and also the ability to answer questions on current events of National and International importance, Indian Legal and Constitutional History and governance.
Candidates shall also be tested for their analytical skills and aptitude.
Learned counsel for the petitioners have argued that as many as 84 questions were such as could not be stated to be within the ambit of the prescribed syllabus. Reliance is placed on Neeraj Sharma v. High Court of Delhi and another , W.P. (C) No. 8272 of 2008 decided on 20.11.2008.
In that case the instruction comparable to sub para (a) of para 12 (supra) was as follows:-
The Preliminary Examination will be a screening test and will consist of one paper of multiple objective type questions carrying maximum of 200 marks. In the preliminary
examination questions on general knowledge and aptitude of the candidate, candidate's power of expression, flair in English, knowledge of objective type legal problems and their solutions covering Constitution of India,Code of Civil Procedure,Code of Criminal Procedure, Indian Penal Code, Contract Act, Partnership Act, principles governing Arbitration Law.
Evidence Act,Specific Relief Act and Limitation Act, etc. will be included.
The argument sought to be raised by the respondents therein was that the word 'etc.' would encompass the other statutes out of which the paper was set. The Division Bench, however, held as follows:-
We are of the opinion that the use of the word 'and' contradicts the submission raised on behalf of the High Court of Delhi. Furthermore, keeping in view the number of statutes mentioned in the instructions, prima facie it would suggest that questions will be asked from within these statutes alone.
Otherwise the comparatively comprehensive or extensive enumeration would become otiose.
In the present case, however, para 12 (a)(supra) is couched in much wider terms. The precise contention of the learned counsel appearing for the respondent-commission is that the decision of the Delhi High Court is distinguishable on the basic premise that over there the argument was only with regard to the fact whether the instructions given to the candidates encompassed the questions set in the paper and it was in view of the specific words used that the Division Bench had come to the conclusion that the
questions were out of syllabus. As per learned counsel the questions set in the present paper would be covered by the stipulation made in para 12(a) (supra).
It may be noticed at the outset that the whole idea in a competitive examination is to provide level playing field. The sacrosanctity of a prescribed syllabus depends upon the attendant circumstance. For instance, the consequence of an out of syllabus paper where it may entail a loss of an academic year may be different than the consequence of an out of syllabus paper in a competitive examination. Which is of course not to say
that the prescribed syllabus can be rendered defunct. The arguments of learned counsel appearing for the petitioners are that some of the questions may not necessarily come within the ambit of the expression 'general and basic knowledge' of the main subjects and also the ability to answer questions on current events of National and International importance, Indian Legal and Constitutional History and Governance and would necessitate somewhat deeper study than the general and basic knowledge mentioned.
However,as noticed above this standard of difficulty would have been faced by all the candidates. Additionally it would also be profitable to notice that the instructions in the question paper mentioned that the most appropriate answer would be deemed to be correct and thus it can be argued that it was not a case only of memorising but also of analytical skills and aptitude.
In this view of the matter I am constrained to decline the plea of the petitioners that the questions being out of syllabus has resulted in a situation where undeserving candidates have made the cut while deserving candidates have been left out.
As regards the second contention I find substance in the same.
Questions No. 26, 67,72 and 111( along with the multiple choice answers) are quoted herein below:-
26. In Ancient India the following was not a mode of Punishment (A) Admonition (B) Remonstrance ( c ) Fine (D) Flogging 67. A marriage between an unmarried woman and a married man is:
(A) null (B ) void ( C ) voidable (D) valid 72. The early releasee of a prisoner is called:
(A) Bail (B) Parole ( C ) Lease (D) Lien 111. Freedom of Information under the Freedom of Information Act (A) right to obtain information from any public authority
(B) right to information about fundamental right in constitutional ( C ) right to information as constitutional right ( D ) None of the above
Learned counsel for the respondent-Commission was not in a position to deny that either these questions were palpably wrong (that is to say none of them could have a correct answer or that they were such for which there could be two or more equally correct answers). Learned counsel for the petitioners have relied upon the case of Kanpur University and others v. Samir Gupta and others reported as AIR 1983 S.C. 1230 and the case of Abhijit Sen and others v. State of U.P. and others reported as (1984)3 SCC 319. It may be noticed that both these judgments dealt with the PMT
examination. In the case of Kanpur University and others v. Samir Gupta and others (supra) the Hon'ble Supreme Court held as follows:-
If this were a case of doubt, we would have unquestionably preferred the key answer.
But if the matter is beyond the realm of doubt, it would be unfair to penalize the students for not giving an answer which accords with the key answer that is to say, with an answer which is demonstrated to be wrong.
The Hon'ble Supreme Court reiterated the decision in the case of Abhijit Sen and others v. State of U.P. and others (supra).
Faced with the situation the question which arises is as to what is the relief which can be granted. No doubt these four questions could have impacted not only the petitioners or the selected candidates alone but others also. However, there have been various judgments wherein Courts have restricted the relief only to such persons who have approached the Court by a particular date. Reference may be made to the case of Virender Singh Hooda and others v. State of Haryana and another, 2005(1) SLR 10 and the case of Sandeep Singh V. State of Haryana and another, Civil Appeal No. 7422 of 1999. In Sandeep Singh's case (supra) the Hon'ble Supreme Court held as follows:-
We make it clear that if any other persons, who had appeared at the said examination and, who had not approached the Court till today, will not be entitled to file any such application for getting this relief in question so far as the examination of the year 1993 is concerned.
In view of the dictum of law mentioned above it is directed that these four offending questions would be deleted as regards the petitioners and their merit will be accordingly recomputed. Learned counsel appearing for the answering respondents has informed me that the cut off in the main examination was 346 out of 480 marks viz. 72.08 %. Such of the petitioners whose merit goes beyond 72.08% after recomputation would be entitled to take part in the main examination scheduled for 11.4.2009. It is made clear that this exercise will be done only for the petitioners and will not be resorted to either for the selected candidates or those who have not approached this Court till today.
Before parting with this judgment I am constrained to observe that even though the allegation that the paper is vitiated because questions have been prescribed from outside the syllabus has been repelled yet it cannot be gainsaid that the reason for that was not so much that the questions were strictly within the syllabus but that special prejudice has not been said to have been caused to the petitioners. However, it cannot be denied that prejudice was caused to all the examinees across the board. The prescription of a syllabus obviously intends to bind the examiner. Not only this, the four questions extracted above also reveal the cavalier attitude with which the paper has been set. It is indeed regrettable that a premier constitutional authority like the Public Service Commission would let such a carelessly drafted question paper be inflicted on the examinees for a premier service of the State. In the circumstances the Commission is directed to devise some in house mechanism to ensure that wherever a
syllabus is prescribed the questions should be prescribed strictly from within its four corners. It is also the duty of the Commission to make certain that there are no questions which are either demonstrably wrong or 'tricky'.
With these observations these writ petitions are disposed of.
A copy of this order be supplied to learned counsel for the parties dasti under the signatures of the Court Secretary.
A copy of this order be also placed on the files of all connected cases.
SUDHIR KUMAR KATARIA and OTHERS Vs HARYANA PUBLIC SERVICE COMMISSION and OTHERSIN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
L.P.A. No.709 of 2009 (O and M)
Date of decision: 12.8.2009
Sudhir Kumar Kataria and others. -----Appellants
Haryana Public Service Commission and others. -----Respondents
HON BLE MR. JUSTICE ADARSH KUMAR GOEL
HON BLE MRS. JUSTICE DAYA CHAUDHARY
Mr. Sanjiv Bansal, Advocate for the appellants.
1. The appellants are aggrieved by judgment of the learned Single Judge, dismissing the writ petition seeking a direction to declare the appellants successful in the HCS Preliminary Examination held on 26.4.2009 by allowing them additional marks in the paper of Zoology optional.
2. Case of the appellants was that 14 questions in the paper were wrong either on account of having more than 1 correct choice or all the choices being wrong. 12 questions were
from Biochemistry, which was not part of the syllabus and 8 questions were totally out of syllabus.LPA No.709 of 2009
3. Learned Single Judge relying upon judgment of the Hon ble Supreme Court in L.Lokanadham v. Chairman, Telecom Commission and others 2008(5) SCC 155, held that
even if there was some ambiguity, it would have been for an expert body to clear the same and not for the Court. Learned Single Judge held that the appellants were not able to show that any of the questions were incorrect, erroneous or absurd so as to call for interference of the Court.
4. We have heard learned counsel for the appellants.
5. Contention raised on behalf of the appellants is that on their having represented to the Haryana Public Service Commission, the Commission referred the matter to the same paper setter who did not accept the objection of the appellants.
The decision of the paper setter was conveyed to the appellants on 3.7.2009, to the effect that no question was out of syllabus and answers to all the questions contained in the key were correct.
6. Learned counsel for the appellants submits that the stand of the respondents was not correct. The matter should have been examined by some other committee. Reliance has
been placed on judgment of the Hon ble Supreme Court in Manish Ujwal and others v. Maharishi Dayanand Saraswati University and others (2005) 13 SCC 744, wherein it was held that where key answers provided in a paper are palpably incorrect, the students should not suffer. In that case, direction for re-evaluation of questions by feeding correct answers was given.
7. We do not find any merit in the contention raised on behalf of the appellants. In the present case, grievance of the appellants has been duly considered by the respondents and the matter was referred back to the paper setter and after consideration, the petitioners were duly informed that there was no error. There is nothing to show that questions were palpably wrong to the extent of having affected the students adversely.
Mere fact that as against overall pass percentage of 10%, pass percentage in the paper of Zoology of 5% was not enough to conclusively show error in paper. Thus, we do not find any ground to interfere with the view taken by the learned Single Judge.
8. The appeal is dismissed.
(ADARSH KUMAR GOEL)
( DAYA CHAUDHARY )
ANU RADHA Vs STATE OF HARYANA AND OTHERSIN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
C.W.P. No.3445 of 2003
Date of decision: 01 .7.2009
Anu Radha -----Petitioner
State of Haryana and others -----Respondents
HON BLE MR JUSTICE ADARSH KUMAR GOEL
HON BLE MR JUSTICE JITENDRA CHAUHAN
Mr. Puneet Bali, Advocate as amicus for the petitioner.
Mr. Lokesh Sinhal, Addl.A.G.Haryana for the State.
Mr. S.R.Hooda, Advocate for respondent No.2.
Adarsh Kumar Goel,J.
1. This petition seeks a direction to appoint the petitioner to the post of Head Mistress, after quashing the selection made by the Haryana Public Service Commission (HPSC) to the said posts.
2. Case of the petitioner is that vide advertisement dated 14.12.2001, Annexure P.14, the HPSC invited applications for 140 posts of head Masters/Head Mistresses in the pay scale of Rs.7500-12000. The requisite qualification was Graduation, preference being given for Post GraduationCWP No.3445 of 2003
with degree or diploma in Education and eight years experience of teaching in a Government school. The petitioner was eligible and was allowed to appear in the screening test held on 26.5.2002. She qualified and appeared for interview on
22.7.2002 but was not declared successful as per result published on 7.9.2002.
The petitioner served legal notice dated 25.9.2002, Annexure P.19 seeking to know criteria adopted in the interview and names of selected candidates but
vide reply dated 20.11.2002, Annexure P.20, she was informed that the criteria was confidential and that documents of selected candidates had already been forwarded to the Government. Present petition was filed on 28.2.2003.
3. Contention raised in the petition is that the petitioner had higher merit as compared to respondent No.3 who was one of the selected candidates, as she was more qualified and her percentage of marks was higher. Her experience was also
more. There is no transparency in the selection process and the same was arbitrary.
4. In the reply filed on behalf of the State, it is stated that the selected candidates stood appointed in the order of their merit as recommended by the HPSC. The stand of the HPSC is that the selection is purely on merit and higher qualification and more experience did not necessarily mean higher merit of the petitioner.
5. On 3.11.2006, the petition came up before a learned Single Judge who referred the matter to larger bench. The order of reference is as under:-
In deference to the order dated May 26, 2006, Shri S.R.Hooda, learned counsel representing respondent No.2, has produced the original records containing the selection criteria as well as allocation of marks in interview . The same have been perused.
In view of the judgment rendered by the Hon ble Supreme Court in Anzar Ahmed v. State of Bihar and others, 1994(1) RSJ 557, though it appears that there could be no restriction to restrict the marks for interview as no written test has been held for the purpose of selection. The restriction on allocation of marks for interview imposed by the Hon ble Supreme Court in the case of Ashok Kuamr Yadav and others v. State of Haryana and others, 1985(4) SCC 417, thus, can be
Similarly the Commission, on the strength of the judgment of the Hon ble Supreme Court in Dr. Keshav Ram pal v. UP Higher Education service Commission, 1986(1) SLR 681, can take the plea that it was not obligated to sub divide the marks for interview/viva voce under various heads.
There are some subsequent judicial precedents also wherein the selection based upon the interview only, have been approved.
However, whether the Commission, while laying down a selection criteria in which it consciously decides to sub divide the marks in interview/viva, but does not hold a written test for the selection purposes, enjoys unquestionable powers to determine such selection criteria and/or what can be the scope of judicial review to test the same on the touchstone of Articles 14 and 16 of the Constitution also appears to be of paramount public importance.
As the aforesaid question does arise for determination in the present case, I am of the considered view that it would be more appropriate if the same is answered by a larger Bench. Consequently, let the papers of this case be placed before Hon ble the Acting chief Justice.
6. The Commission produced the record as directed, which was perused by the Court. On 22.5.2007, following order was passed:-
Record has been produced before us. The same was opened and after perusal, the same has been sealed and returned.
Petitioner as well as counsel for the respondents pray for time to argue on the
question whether the selection criteria adopted by the Commission was in accordance with law or not?
7. Thus, the question for consideration is as to validity of selection criteria laid down by the Public Service Commission.
8. Since the petitioner was not represented by counsel, we requested Sh. Puneet Bali, Advocate, who was present in Court, to assist the Court as amicus. We have heard learned amicus for the petitioner, learned counsel for the Commission as also the learned counsel for the State.
9. The criteria laid down by the Commission on 19.7.2002 and adopted for selection held on 25.7.2002 is as under:-
The commission lay down the following criteria for assessing the relative merit of the candidate called for viva-voce examination for the post of Headmasters, in HES, class-II (Gazetted) School Cadre, Education Department, Haryana:-
Total marks of the viva-voce examination:
100 marks I. Personal achievement marks: 25 marks (a) Higher qualification: 10 marks
(i) For Ph.D: 10 marks
(ii) For M.Phil or M. Ed or both 5 marks
(iii) For Post-Graduation in any Subject: 3 marks
(B) Experience: 5 marks
One marks for each completed year will be awarded for teaching or administrative experience in addition to the experience that is necessary to make a candidate eligible. The maximum marks for experience will be 5 marks.
5 marks Candidate who has received National teacher award 5 marks Candidate who has received State teacher award 3 marks
Candidate who has received both State and National teacher award will be given maximum 5 marks.
(D) Distinction at graduation Level: 5 marks.
Candidate who has stood 1 st in the University at graduation level 5 marks.
Candidate who has stood 2 nd in the University at graduation level 3 marks.
Candidate who has stood 2 nd in the University at graduation level 2 marks.
The interview test will be conducted to the test the knowledge of the subject, intelligence, awareness, teaching faculty, articulation, expression, speaking ability and other related qualities. There will be 75 marks assigned for this test. They are distributed as under:-
(i) Knowledge and awareness: 25 marks
(ii) Teaching faculty including articulation, Expression and speaking ability 25 marks,
(iii) Intelligence and other qualities 25 marks.
For the convenience of marking and realistic assessment, a candidate is categorized as under in consultation with the expert advisor:-
Good- 18 - 25 marks
Average- 9 - 17 marks
Poor - 1 - 8 marks.
For qualifying the viva-voce test the candidate must obtain at least 40% marks in Aggregate.
10. Learned amicus for the petitioner submitted that laying down of selection criteria should have been prior to the selection process and the same should have been made public before hand. The selection criteria must be fair and reasonable
to check subjectivity and arbitrariness. Written test should be required, apart from service record being examined. If the selection was only on the basis of interview, there should be videography to bring about transparency. The sub division should have nexus to the object of selection moreso, when there is question mark on credibility of appointments to the Commission.
11. Reliance has been placed on following judgments:-
1. R.Chitralekha v. State of Mysore and others, AIR 1964 SC 1823 to submit that fair selection requires moral standards of members constituting Selection Committee and objectivity.
2. Janki Prasad Parimoo and others v. State of Jammu and Kashmir, 1973(1) SCC 420 to submit that for the post of Headmaster, efficiency, character, teaching experience, ability to manage class, percentage of successful candidates produced
must be taken into consideration.
Character and service record of candidates must be before the Selection Committee.
3. Kiran Gupta and others v. State of UP and others, 2000(7) SCC 719 and Inder Parkash Gupta v. State of JandK and others, (2004) 6 SCC 786 to submit that percentage of marks allocated for interview cannot be unreasonably high.
Parameters like experience and service record should be given due weightage apart from qualification, general knowledge, personality and administrative ability and achievements in extra curricular activities.
4. Praveen Singh v. State of Punjab and others, (2000) 8 SCC 633 to submit that Selection Committee cannot act arbitrarily and interview as basis of selection is always suspect.
5. Maharashtra State Road Transport Corporation and others v. Rajendra Bhimrao Mandve and others, (2001) 10 SCC 51, K.Manjusree v. State of Andhra Pradesh and another, (2008) 3 SCC 512 and Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11 to submit that rules of game cannot be altered after process of
selection has commenced.
6. State of UP and another v. Om Prakash and others, (2006) 6 SCC 474 to submit that higher qualification could be given preference only when other things were equal.
7. K.M.Rashmi Mishra v. MP Public Service Commission and others, 2006(12)
SCC 724 to submit that even though written test was for shortlisting, the same
should have been taken into account, in addition to interview.
8. Jaskaran Singh Brar v. State of Punjab and others, 2005(1) RSJ 508 (Pb. and
Hry.) to submit that criteria for selection will be liable to be set aside if arbitrary and irrational.
9. Vinod Kumar v. State of Rajasthan and others, 2005 (2) SLR 243 (Raj.), and
Ms.Suman Rana v. Govt. NCT of Delhi and others, 2005(4) SLR 75 (Delhi) to submit that change of selection criteria after selection process was illegal.
12. Learned amicus further submitted that the selection criteria in the present case cannot be held to be fair and either the same be quashed or the petitioner may be directed to be appointed against one of the available posts.
13. Learned counsel for the State and the Commission opposed the submission and submitted that the selection criteria cannot be held to be unfair. There is no requirement that the criteria must be published in advance. Selection could be without written test. No case was made out for quashing the selection criteria nor direction for appointment of the petitioner was called for.
14. Questions raised can be formulated as follows:-
i) Whether interview can be sole basis of selection and if so, whether it is necessary to prepare proper record of interview?
ii) Whether sub division of marks for interview for different heads is a must?
iii) Whether criteria adopted in the present case is open to challenge and is illegal?
iv) Whether selections are liable to be quashed?
v) Whether the petitioner is entitled to a direction for appointment?
15. Before we proceed to deal with the questions, it will be appropriate to have a general overview of the role of Public Service Commissions and scope of interference with their working.
16. Importance of selections to the Government jobs can hardly be overemphasized. The Government machinery has vital role to play in achieving the constitutional goals.
Selection at the entry point must ensure induction of best talent to the government service. Constitution has assigned role to the Public Service Commissions to bring about desired transformation from patronage to open competition as the basis for selection. Not only best methods of assessing efficiency and suitability are required to be employed, the Commissions are expected to establish their credentials of being above any influence. Unfortunately, appointments to the posts of members of the Commission are often subject matter of controversy.
Selections made do not inspire confidence on account of apprehension of extraneous influence. Though, the Courts normally exercise restraint in interfering with the selections and particularly with the criteria which may be laid
down by an expert body, the Court cannot be oblivious that there has been a steady decline of public standards, public morals and public morale. In such a situation, the Courts cannot and should not remain mute and dumb. (See Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi , (1987) 1 SCC 227, Para
51). We need hardly repeat that selections are required to be made without any extraneous considerations and by using methods which may enable the most meritorious and suitable candidates to be appointed to public posts. No method may be foolproof and in the ultimate analysis it is the sincere effort of the Commission which is crucial. Public posts constitute national wealth and development of the nation is linked to excellence and merit being the basis of selections to public posts.
17. History of evolution of Civil Services in some countries has been disquieting. In France, almost every public office used to be purchasable. The surveys showed that in England, job security brought about inefficiency and lack of devotion.
(These developments have been referred to in judgment of the Hon ble Supreme Court in Mehmood Alam Tariq v. State of Rajasthan, AIR 1988 SC 1451, para 6).
18. In America, the spoils system was in force and appointments were made on political considerations (see observations in State of Bihar v. Upendra Narayan Singh, (2009) 5 SCC 65, Paras 33 to 36). In the said case, unsatisfactory state of affairs of appointments to Public Service Commissions and their functioning has been noticed by Hon ble Supreme Court thus:
43. In the beginning, people with the distinction in different fields of administration and social life were appointed as Chairman and members of the Public Service Commissions but with the passage of time
appointment to these high offices became personal prerogatives of the political head of the Government and men with questionable background have been appointed to these coveted positions. Such appointees have, instead of making selections for appointment to higher echelons of services on merit, indulged in exhibition of faithfulness to their mentors totally unmindful of their constitutional
responsibility. This is one of several reasons why most meritorious in the academics opt for private employment and ventures.
44. The scenario is worst when it comes to appointment to lower strata of the civil services.
Those who have been bestowed with the power to make appointment on Class III and Class IV posts have by and large misused and abused the same by violating relevant rules and instructions and have indulged in favouritism and nepotism with impunity resulting in total negation of the equality clause enshrined in Article 16 of the Constitution.
45. Thousands of cases have been filed in the Courts by aggrieved persons with the complaints that appointment to Class III and Class IV posts have been made without issuing any advertisement or sending requisition to the employment exchange as per the requirement of the 1959 Act and those who have links with the party in power or political leaders or who could pull strings in the power
corridors get the cake of employment. Cases have also been filed with the complaints that recruitment to the higher strata of civil services made by the
Public Service Commissions have been affected by the virus of spoils system in different dimensions and selections have been made for considerations other than merit.
19. An administrative or quasi judicial body such as a Selection Committee has normally to be left to devise its own procedure, subject to the same being fair and reasonable.
Selection has to be made by assessment of relative merits. It is not necessary to give any reasons for the assessment.
Reference may be made to judgments of the Hon ble Supreme Court in Union of India v. M.L.Capoor and others, AIR 1974 SC 87, National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman, AIR 1992 SC 1806, para
7 and Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1. Though, the selection authority has to be given free play in joints, the power of awarding marks in interview is coupled with the duty to select the best and cannot be exercised arbitrarily.
20. Judicial review is basic structure of the Constitution. Its depth depends on nature of decision. No decision may be exempt from judicial review except decisions such as employment of troops and entering into international treaties
(State of N.C.T. of Delhi v. Sanjeev AIR 2005 SC 2080).
Scope of judicial review extends to remedying injustice wherever found. Power exercised by any public authority is for the purpose for which the same is conferred. No authority can function arbitrarily or malafidely. ( Dwarka Nath v. I.T.O.
Special Circle, D Ward Kanpur and anr .AIR 1966 SC 81, Hochtief Gammon v. State of Orissa and Ors AIR 1975 SC 2226, Comptroller and Auditor-General of India v. K.S.
Jagannathan, (1986) 2 SC 679, Para 18-20, Kumari Shrilekha Vidyarthi etc. v. State of U.P. and ors . AIR 1991 SC 537 , Epuru Sudhakar v. Govt. of A.P ., (2006) 8 SCC 161 , Rameshwar Prasad (VI) v. Union of India AIR 2006 SC 980 , Express Newspapers Pvt. Ltd. V. UOI, AIR 1986 SC 872 and S. Partap
Singh v. State of Punjab AIR 1964 SC 72). With expanding scope of judicial review, there are instances of interference even in cases earlier considered to be purely executive functions. In Center for Public Interest Litigation v. Union of India, AIR 2005 SC 4413, appointment of Chief Secretary was set aside with the observation that on sensitive posts, appointments must be transparent and of persons above any suspicion. In Prakash Singh and others v. Union of India and others, 2006(8) SCC 1, directions in the matter of police reforms were issued.
Appointments to Public Service Commissions had to be of persons of integrity. However, in the present case, we are not directly concerned with appointment of members of the Commission but only with the issue of selection being on merits. This is possible only when persons of high integrity are appointed as Chairman or members of Public Service
Commission. The observations of the Hon ble Supreme Court, commenting upon unsatisfactory state of affairs of appointments to the commissions have already been referred to in this regard.
21. In M.V.Thimmaiah and others v. Union Public Service Commission and others, (2008) 2 SCC 119, para 21, principles for judicial review of recommendations of Selection Committee were reviewed and it was observed that scope for interference was limited to situations where selection is actuated by malafides and violation of statutory provisions.
After referring to judgments in Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044, P.M. Bayas v. Union of India, (1993) 3 SCC 319, Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417, Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, UPSC v. S. Thiagarajan, (2007) 9 SCC 548,G. Sarana (Dr.) v. University of Lucknow, (1976) 3 SCC 17CWP No.3445 of 2003 585,Kunda S. Kadam v. Dr. K.K. Soman, (1980) 2 SCC 355,Ashok Nagar Welfare Assn. v. R.K. Sharma, (2002) 1 SCC 749, Union of India v. Mohan Lal Capoor, (1973) 2 SCC 836, Lila Dhar v. State of Rajasthan, (1981) 4 SCC 159, R.S. Dass v. Union of India, 1986 Supp SCC 617, State of U.P. v. Rafiquddin, 1987 Supp SCC 401,UPSC v. Hiranyalal Dev, (1988) 2 SCC 242, Mehmood Alam Tariq v. State of Rajasthan (1988) 3 SCC 241,Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, (1990) 1 SCC 305,National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman, 1992 Supp (2) SCC 481,Indian Airlines Corpn. v. Capt. K.C.
Shukla, (1993) 1 SCC 17, C.P. Kalra v. Air India, 1994 Supp (1) SCC 454,Anil Katiyar v. Union of India, (1997) 1 SCC 280,All India State Bank Officers Federation v. Union of India, (1997) 9 SCC 151, Union of India v. N. Chandrasekharan, (1998) 3 SCC 694, Inder Parkash Gupta v. State of JandK, (2004) 6 SCC 786, K.H. Siraj v. High Court of Kerala, (2006) 6 SCC 395, it was concluded:-
22. Keeping in view the ratio laid down by this Court in several decisions, now we shall examine the argument of learned Senior Counsel for the appellants
which had been addressed. But we may at the very outset observe that the Court while considering the proceedings of the Selection Committee does not sit as a court of appeal. Courts have limited scope to interfere, either selection is actuated with mala fide or statutory provisions have not been followed.....
22. From the survey of above case law, it is clear that while Selection Committee can devise its own procedure, the same has to be fair and reasonable having nexus to the object of selecting the best. Criteria adopted by Selection Committee is open to judicial review on well known grounds of illegality, irrationality and impropriety.
23. We now proceed to deal with the questions formulated in para 14. Re.i):
24. There has been debate on the issue of validity of interview as sole basis for selection. Theoretically, interview can be a valid tool and criticism of the same being adopted as a sole basis has been that the same involves subjectivity and its
effectiveness depends upon exercise of discretion which is generally misused.
Success of this method, like any other method, depends on moral standards of members constituting the committee. Safeguards are, however, required to be
introduced to check arbitrariness and also to ensure transparency. In absence of contemporaneous record being maintained, adoption of test or interview is rendered vulnerable to allegation of nepotism or favourtism and the burden may be on the Commission to satisfy the Court that the selection was fair. If there is contemporaneous record, it may be easier for the Commission to discharge its burden for showing fairness. We may refer to some leading judgments dealing with the validity of interview as a basis for selection and possible safeguards which ought to be adopted.
25. In R.Chitralekha (supra), interview as a basis for selection was tested on the anvil of Article 14 in the light of the contention that the same involved subjectivity, which was open to abuse. Referring to different opinions on the utility of interview as a basis for selection, it was observed that if there is dishonesty in allotting marks to a candidate in interview, there could be a same flaw in awarding marks in written examination. It was observed:
In the ultimate analysis, whatever method is adopted its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty.
This criticism is mere a reflection on the examiners than on the system itself. The scheme of selection, however, perfect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant objective criteria and entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter. In this case the criteria laid down by the Government are certainly relevant in the matter of awarding marks at the interview. Learned counsel contends that the ability of a student on the basis of the said criteria can be better judged by other methods like certificate from the N.C.C. Commander or a medical board or a psychiatrist and should not be left to a body like the selection committee which cannot possibly arrive at the correct conclusion in a short time that would be available to it. The criticism does not affect the validity of the criteria, but only
suggests a different method of applying the criteria than that adopted by the Committee. It is not for us to say which method should be adopted: that must be left to the authority concerned. If in any particular case the selection committee abuse its power in violation of Art. 14. of the Constitution, that may be a case for setting aside the result of a particular interview, as the High Court did in this case. We cannot, therefore, hold without better and more scientific material placed before us that selection by interview in addition to the marks obtained in the written examination is itself bad as offending Art. 14 of the Constitution.
26. In Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, it was observed that oral interview was not satisfactory and should not be relied upon as exclusive test but should be only additional or supplementary test for assessing caliber of candidates. It was also observed that to bring about transparency, tape recording of interview may be done so that there is contemporaneous evidence as to questions asked and the answers given to eliminate controversy and to act as a
check on possible arbitrariness. However, in Lila Dhar v. State of Rajasthan, AIR 1981 SC 1777, it was observed that the observations in Ajay Hasia (supra) related to admissions and may not apply to selection to judicial service. Awarding of marks under different heads may lead to distorted picture while totality of impression may give more accurate picture. There could be no magic formula in these matters and the Court cannot sit in judgment over methods of marking employed by the interview bodies unless there was oblique motive. Same view was taken in Inder Parkash Gupta v. State of JandK, (2004) 6 SCC 786 and P.Mohanan Pillai v. state of Kerala and others, (2007) 9 SCC 497.
27. In Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454, it was observed that allocation of marks for interview should not be very high but in later judgments including Anzar Ahmad v. State of Bihar, (1994) 1 SCC 150, the rule in Ashok Kumar (supra) was held to be not inflexible one particularly when interview was the only basis of selection.
28. In D.V.Bakshi and others v. Union of India and others, AIR 1993 SC 2374, Para 7, it was observed that element of subjectivity can be checked if proper record is maintained and marks are awarded under separate heads. The relevant observations are:-
7. If an oral test is, therefore, a must as in this case, a heavy responsibility is cast on the examiners to maintain a proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate. Once this care is taken the element of subjectivity will be largely checked and the marks assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate, In the matter of evaluation some degree of honest error must be countenanced.
However, if there is any allegation of nepotism or favourtism, the same can be checked with reference to the record so maintained. Since the oral test is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is a must or that the marks reserved for the oral test are excessive will er se, without anything more, set the Court,probing into the records of the oral test. But if the
allegation is supported by some dependable proof, the Court will satisfy itself whether or not the charge is well founded. That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the oral test as a whole or qua a candidate, as the case may be….
29. In Madan Lal and others v. State of Jand K and others, AIR 1995 SC 1088, Para 15, observations with regard to requirement of tape-recording was held to be obiter. It was observed:-
15….These observations cannot be read to mean that in the absence of tape recording of questions and answers the interview process would fail or the result of the interview would get vitiated…
30. We, thus, hold that interview as sole basis of selection may not be per se illegal. While absence of video recording or preparing other record may not always render the selection bad, it is desirable that proper record of questions
asked and answers given is maintained. In the present case, even though, no such record was maintained. We are not inclined to interfere with the selection having regard to overall fact situation but we consider it appropriate to give directions in the light of observations of the Hon ble Supreme Court in Ajay Hasia and D.V. Bakshi (Supra), when we deal with question (v). Question (i) is answered accordingly.
31. On question whether separate marks for different qualities should be allotted, reference may first be made to the judgment of the Hon ble Supreme Court in A.Periakaruppan v. State of Tamil Nadu, AIR 1971 SC 2303. The rule itself in that case required separate marks to be allotted for different qualities specified therein. However, in State of Karnataka and another v. M.Farida and others, AIR 1976 SC 2482, it was observed that whether marks should be separately allotted
for different heads, depended on the rules. In absence of rules, it may not be necessary to allocate marks for separate heads.
Relevant observations are:-
6…..It seems to us in the context that the qualities are mentioned only as guide, as indicating the attributes to be kept in view, in assessing the personality of the candidates. It seems hardly possible in the test contemplated to allocate separate
marks for each of the various qualities specified, because most of them overlap one another and are so intermixed that they cannot be separated. Also, the test carries a maximum mark of 100; it seems a little absurd to suppose that the seven qualities to be judged at the interview are of equal value, each carrying 14 2/7 marks. This further confirms the view that Part IV of Scheduled II never intended
that separate marks should be allotted for the several qualities stated therein.
Reading Rule 9 with Part IV of Schedule II, we are of opinion that the interviewing body was required to award a block mark on a total impression of the personality of each candidate after giving due consideration to the seven qualities specified in Part IV….
32. In Dr. Keshav Ram Pal v. U.P. Higher Education Service Commission, Allahabad, AIR 1986 SC 597, it was observed that interview Board was not under obligation to sub divide marks under various heads.
33. We, thus, hold that sub division of marks is not must unless it is so provided under the rules. However, the sub division must have nexus with the object of selecting the best and the most suitable candidates. In the present case, though sub division leaves much to be desired, having regard to facts and circumstances, we are not inclined to interfere. However, we propose to give direction as mentioned in para 36. Question (ii) is answered accordingly.
34. In the present case, interview has been adopted as a sole basis. The marks have been sub divided in the manner set out herein above. While there is every scope for observing that a better method could be evolved, particularly examination of service record, when selection was from in service candidates.
It would have also been desirable to have transparency by keeping contemporaneous record of the questions asked and the answers given by way of video recording or otherwise, as recommended in judgments of the Hon ble Supreme Court, particularly in Ajay Hasia, Lila Dhar and D.V.Bakshi (supra).
There is nothing, in the present case, to show that the selection was manipulated or was in violation of any rule so as to call for interference of this Court.
35. Learned Counsel for the Commission informed the Court that even in the qualifying written examination, marks secured by the petitioner were lower to the contesting respondent.
36. We, thus, conclude that even though, there is nothing to show that criteria adopted was not bonafide, it would have been better if service record of each of the candidates was called for and marks allocated for the same.
While we do not propose to interfere with the selection, in the facts of present case, we propose to give direction for keeping into account service record of such selections in future in the light of observations of the Hon ble Supreme Court in Janki Prasad (Supra). Question (iii) is answered accordingly.
37. We also find that the petitioner has failed to implead selected candidates, though, the petitioner made effort to get the particulars. The fact remains that all the selected candidates are not before the Court. The petitioner participated in the
selection process. Selected candidates are required to be impleaded as parties before the selection can be set aside as held in Madan Lal (supra) and K.H. Siraj (supra). As already observed, the criteria adopted, though may not be ideal, selection in the present case is not liable to be interfered with. We also find that the petitioner has herself participated in the process of selection which may create an estoppel against her challenge to the selection. The selected candidates have already worked for more than seven years. However, even on merits, we do not find any ground to interfere with the selections.
38. As regards judgments relied upon on behalf of the petitioners, we find that the same are distinguishable. Since the issue has already been analysed at length, individual judgments need not be separately discussed. As already observed, there is no inflexible rule that selection based only on interview would be illegal. Criteria to allocate marks under sub heads though not the ideal one, is not shown to have vitiated the selection. In view of judgments relied upon by the learned counsel on the question of candidates being put to advance notice and there being no change permissible after selection process starts, the criteria adopted should have been notified but absence thereof cannot be held to have vitiated the selection. Question (iv) is answered accordingly.
39. In view of our conclusion on questions (i) to (iv), the petitioner is not entitled to a direction for appointment.
Question (v) is answered accordingly.
40. However, even though we have not found any ground to interfere with the selections or for direction of appointment of the petitioner, we consider it necessary to issue certain directions in the light of judgments of the Hon ble
Supreme Court. In Ajay Hasia (supra), it was observed:-
20….. We think that it would also be desirable if the interview of the candidates is tape-recorded. for in that event there will be contemporaneous evidence to show, what were the questions asked to the candidates by the interviewing committee and, what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee.
In D.V. Bakshi (supra), it was observed:-
7…..a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for
suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the oral test as a whole or qua a candidate, as the case may be….
In Janki Prasad (supra), it was observed:-
17…..The efficiency of a teacher and his qualifications to be appointed as Head Master depend upon several considerations. His character, his teaching experience, ability to manage his class, his popularity with the students and the high percentage of successful students he is able to produce are all matters which must be necessarily taken into consideration before a selection is made. For this any Committee which desires to make a selection after interview should insist that the character roll and the service record of the teachers should be before it….
41. Accordingly, we direct respondent No.2 to :
(i) ensure that proper record of interviews conducted by it i.e. of questions and answers, is maintained in appropriate form, such as video recording or otherwise, as may be decided by it in all future interviews; and
(ii) consider the service record of in service candidates while considering their candidature for the appointment to a post of Headmaster or any other like post in future selections.
42. Subject to the directions, in para 41 above, this petition is dismissed.
(Adarsh Kumar Goel)
ANJALI DANGI AND ANOTHER Vs HARYANA PUBLIC SERVICE COMMISSION AND OTHERSIN THE HIGH COURT OF PUNJAB AND HARYANA AT
C.W.P. No. 18690 of 2009
Date of decision: 07.12.2009
Anjali Dangi and another ....Petitioners
Haryana Public Service Commission and others ....Respondents
HONBLE MR. JUSTICE VINOD K. SHARMA
Mr. P.K. Solath, Advocate, for the petitioners.
VINOD K. SHARMA, J (ORAL)
This writ petition under Articles 226/227 of the Constitution of India is directed against the advertisement (Annexure P-1) issued by the
Haryana Public Service Commission, Panchkula, vide which the
Commission has invited the applications for filling up of certain posts.
The petitioners are Engineers having degree of Bachelor of Electronics and Communication and claim to be fully eligible for the
post of Assistant Engineer (Electrical), as per services rules of the
The challenge of the petitioners to advertisement is on the ground, that the qualification given in the advertisement is different from the one which is given in the rules, on account of which the petitioners
have been prejudiced.
In order to appreciate the contention raised, it is relevant to reproduce the actual qualification in the rules and the one published in the advertisement, which are as under: -
Qualification as per Service Rules Qualification given in the
(i) Has obtained Bachelor Engineering Degree or equivalent from any Indian/Foreign University/Institute duly recognized by All India Council of Technical Education with a minimum of 60% marks in respect of General
Category candidates and 55% marks for reserved category candidates in any one of the following disciplines:
A) Electrical/Electrical and Electronics Engineering.
B) Electronics/Electronics and Communication/Electronics and Telecommunication/Electronics and Electrical Communication Engineering.
C) Must have passed Hindi/Sanskrit up to Matric standard.
D) All the candidates should have working knowledge of computer and exposure on common software applications including networking (only for UHBVN) or Should have undertaken at least one year Diploma course in Computer from any institution recognized by the Government of Haryana.
However, one year Diploma Course qualification is not required in case, candidate have computer subject in their Degree Course. (only for DHBVN)
(i) Bachelor of Engineer Degree in Electrical/Electrical and Electronics or
equivalent qualification from any Indian, Foreign University/Institution duly
recognized by All India Council for Technical Education/Association of Indian Universities with 60% marks (55% marks for SC of Hry.)
(ii) Hindi or Sanskrit upto Matric.
The reading of the advertisement would show, that the qualifications prescribed in the advertisement are exactly the same as given in the service rules.
The contention of the learned counsel for the petitioners that in the advertisement, the degree given by the Association of Indian Universities has also been included, which is not in the qualifications
under the service rules, is liable to be noticed to be rejected, for the
reason that even in the service rules, the degree which is equivalent and which are recognized by All India Council of Technical Education is a recognized qualification. It cannot be said that mere inclusion of degrees recognized by the Association of Indian Universities in the advertisement would mean that the qualifications prescribed in the advertisement are different from those given in the service rules.
The contention of the learned counsel for the petitioners, that against 69 posts, which were available, the Commission has advertised 81 posts, therefore, advertisement deserves to be set aside, is also misconceived. The petitioners cannot have any grievance to this, as it is for the employer to see how many posts are to be filled up. The Commission was to advertise as per the requisition sent by the department.
The contention of the learned counsel for the petitioners, that there has been violation of Articles 14 and 16 of the Constitution of India, as the persons like petitioners have not been permitted to compete,
is also totally misconceived. The petitioners are admittedly having
degree in Electronic and Communication, whereas posts are on the
electrical side. Merely because certain electronics and communication engineers are available does not impose any obligation on the employer to include their qualification also in the advertisement for the posts, against the rules.
The contention of the learned counsel for the petitioners, that the requirement of diploma in computer is not mentioned, is also misconceived. Under the rules only requirement is of working knowledge of computer and exposure on common software or Diploma Course. This is not required if computer subject is included in the degree.
(Vinod K. Sharma)
AMIT GANERIWALA Vs STATE OF HARYANA AND OTHERSCIVIL WRIT PETITION NO.2736 OF 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: OCTOBER 08, 2009
Amit Ganeriwala .....Petitioner
State of Haryana and others ....Respondents
HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Mr. Ashwani Verma, Advocate, for the petitioner.
Mr. Harish Rathee, Sr.DAG, Haryana, for the State.
Mr.Vivek Aggarwal, Advocate, for respondent No.2.
RANJIT SINGH, J.
Despite having spelt out the responsibility of the State towards prevention of disabilities and the protection of rights of persons with disability, the mind set of the authorities apparently has not undergone a change towards persons with disabilities. Our country is a signatory to the proclamation on full participation and equality of people with disability and accordingly has legislated the Act known as the Persons with disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995 (hereinafter called “the Act”). Still the authorities would look for ways to
circumvent the provisions of this Act rather than ensuring the implementation of the process of this forward looking enactment.
The vehemence with which the prayer in the present Civil Writ Petition Nos.2736 of 2009 (Amit Ganeriwala Versus State of Haryana and others) and 6060 of 2009 (Ramavtar Versus State of Haryana and others) has been opposed would show that the aim and objects of this Act perhaps are yet to sink in.
The issue involved in the present writ petition is about the right of the State to exempt certain posts of H.C.S Executive Branch from the purview of the Act and thereby to deny appointment to person with disability on the said post. This issue commonly arises in both the writ petitions and, therefore, both the petitions are being disposed of together through this common order.
The facts in Civil Writ Petition No.2736 of 2009, would show that the petitioner in this case has passed LL.B in Ist Division from Kurukshetra University, Kurukshetra, on 24.11.2001. He is a physically handicapped person. The Haryana Public Service Commission (for short, “the Commission”) has advertised 26 posts of H.C.S (Executive Branch), making reservation for various categories but has excluded the category of “physically handicapped persons for appointment to the said posts. The petitioner would challenge this action and would draw support from the advertisement issued by Union Public Service Commission on 6.12.2008 where posts in Indian Administrative Services have specifically been reserved for physically disabled category. In contrast, the advertisement issued by the Commission has specifically mentioned that physically handicapped candidates are not eligible. The petitioner accordingly has filed this writ petition to challenge this advertisement on the ground that the same is illegal, arbitrary and discriminatory.
The petitioner in Civil Writ Petition No.6060 of 2009 has 70% disability.
He is presently working as Block Development and Panchayat Officer (HCS allied) since the year 2002. He applied for H.C.S (Executive) in response to advertisement and was selected for allied services.
Subsequently on 12.1.2004, he was selected and appointed as District Food and Supplies Controller, which is again an allied service. He also has a grievance against the action of the State in not making any reservation in the 26 posts advertised for H.C.S (Executive Branch) on 3.1.2009. He has accordingly challenged this advertisement on the ground that it is illegal, arbitrary besides being discriminatory and also being violative of the provisions of the Act.
The common stand taken in the reply is that the Government has already issued instructions dated 20.2.1990 (Annexure R1/1) whereby Government has decided to provide 3% reservation to physically handicapped persons in Class I and Class II posts to be filled by direct recruitment. Reference is then made to the instructions issued on 14.10.1999 (Annexure R1/2) whereby it has been decided that the reservation in the services prescribed for physically handicapped person will not be applicable to the post of Haryana Civil Service (Executive Branch). To justify this, it is stated that the officers of Executive Branch are to be posted at District/Sub Divisional level and they have to face public, hear their problems and solve the same as early as possible. They are also required to work as Executive Magistrate and Collector Ist Grade and have also to handle law and order situation. It is also stated that they have to work as Joint Directors, Additional Directors, Directors, Under Secretaries, Deputy Secretaries, where they are to handle important policy matters. It is accordingly stated that it would not be in the interest of
justice or in the public interest to provide reservation in the Haryana Civil Services (Executive Branch) to the physically handicapped persons. In short, the defence to exclude physically handicapped persons from appointment is on the basis of instructions issued by the Government on 14.10.1999 and in support justification as noted above is advanced.
Is this action of the respondents justified in law, especially in the light of provision made in the Act? The aim and object of the Act and the background in which this Act has been legislated has been noticed above.
The Act is quite comprehensive and contain various provisions like constituting Central Coordinating Committee, the State Coordinating Committee, provision for prevention and early detection of disability, for providing free education to the children with disability and also about their employment. Section 32 of the Act makes a provision for identification of posts, which can be reserved for persons with disability. It entitles the appropriate Government to identify the posts in the establishment which can be reserved for the persons with disability. This can be reviewed periodically with the intervals not exceeding three years by taking into consideration the development in the technology. Then Section 33 of the Act regulates the reservation of the posts for the persons with disability.
The Section makes it mandatory for every appropriate Government to appoint in every establishment such percentage of vacancies, not less than 3% for person or class of persons with disability, which has to be 1% each for persons suffering from blindness or low vision; hearing impairment; locomotor disability or cerebral palsy. The provisions of Section 33 are extracted for ready reference:
33. Reservation of posts.- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent,
each shall be reserved for persons suffering from-
(i) blindness or low vision;
(iii)locomotor disability or cerebral palsy,
in the posts identified for each disability; Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions,
if any, as may be specified in such notification, exempt any establishment from the provisions of this Section.
Thus, it is the emphatic mandate of the statute, as can be seen from use of word “shall” in the Section, for the Government to make reservation for persons with disability. To balance the interest of the organization, a
proviso has been added, as reproduced above.
Thus, the appropriate Government is given an option to exempt any establishment from the provisions of this Section but this has to be by way of a notification, which may be subject to such conditions as may be specified in such notification. While doing so, the appropriate Government may have regard to the type of work carried on in any Department or establishment.
What would, thus, emerge from the reading of Section 33 of the Act is that it is a mandate of the statute and requirement of law that every appropriate Government has to appoint in every establishment such percentage of vacancies, not less than 3% for person or class of persons with disability. If the appropriate Government is of the view not on account of any whims or fancies but having regard to the type of work carried by the Department or establishment, then it may exempt any such establishment from the purview of this mandate as is contained in Section 33. A very fine example can be found from the notification issued by the Central Government exempting all categories of posts of combatant personnels. Obviously a person with disability like blindness or low vision or hearing impairment or locomotor disability etc. can not be able to perform the combat duties and hence, the need to exempt appointment from the purview of reservation on such posts. Such exemption, however, can only be through a notification and may be subject to certain conditions.
Apparently, the respondents would fail on both the counts and have not been able to justify the requirements laid down in the Section. The respondents have attempted to justify exemption for reserving the post of H.C.S. (Executive Branch) on the ground of nature of duties required to be performed by said persons and have relied upon State Government instructions dated 10.10.1992 issued in this regard. Incidental question, thus, would arise whether the instructions issued in the year 1992 exempting H.C.S (Executive Branch) from the reservations of person with disability would be relevant for the purposes of the Act, which was legislated in the year 1995. Obviously, the authority while issuing instructions in the year 1992 was in no position to consider or appreciate the requirements of the Act legislated in the year 1995 and also the legal requirement of granting exemption by way of notification. Thus, the reliance by the respondents on instructions issued prior to coming into force of the Act would be of no avail to the respondents.
Even otherwise, the stand taken by the respondents to rely on some instructions to satisfy the requirement of the Act as contained in Section 33 of the Act can not be accepted. If any exemption is to be granted, then it has to be by way of a notification as is laid down in the Section. This requirement is also to be appreciated in the background that it is the mandate of the statute to make reservation for persons with disability. The proviso is only by way of an exception. The exception, thus, can not be allowed to operate in a manner to take away the mandate in the Section and has to strictly adhere to the requirement of the Section, which would not only be to issue notification but also to keep in view the type of work, which is to be carried by any Department or establishment, which is sought to be exempted from the purview of this mandate.
The reasons which have been given by the respondents to exempt the posts would not sound justified. It is not understood as to how a person with handicap be not able to work at District or Sub Division level as stated. It is also not understood as to how such a person would not be able to hear or solve the problems. These reasons, as advanced by the respondents to justify exemption, can easily be countered by the fact that such reservation has been provided for appointment to Indian Administrative Services. If a person with disability can seek appointment to the post meant for Indian Administrative Services and work at the District or Sub Division level and is capable of hearing the problems and solving them, then certainly such disability would not be a handicap for those persons who seek appointment to H.C.S (Executive Branch). This
justification obviously is in ignorance of the provisions of the Act and appears to have been formed when this Act was not yet legislated.
In any case, even if exemption is to be granted, then it has to be by way of notification. The stand of the respondents to rely upon instructions, therefore, is not justified at all and can not be accepted. For this, I can seek support from the observations made by Division Bench of this Court in the case of Balwinder Singh Vs. State of Punjab and others, 2004 (2) RSJ 216 where it is observed that the State Government can only exempt any category through notification and since no notification was issued in this case, the instructions relied upon were held contrary to the mandate and not sustainable. Similar is the issue involved in the present writ petitions.
The instructions issued after the Act having been in operation was held not sustainable in view of the mandate contained in Section 33 of the Act whereas in the present case, reliance is placed on the instructions which have been issued even prior to the enactment of the Act. Reference here also can be made to a Division Bench decision of Delhi High Court, copy of which has been annexed as Annexure P-6 with Civil Writ Petition No.6060 of 2009. A perusal of this would clearly show that even Union of India has issued instructions for making reservation of posts with disability in the Indian Administrative Services.
The action of the respondents, therefore, in issuing this advertisement by making the persons with disability to be ineligible for H.C.S. (Executive Branch) can not be sustained. The same is setaside.
Direction, therefore, is issued to the respondents to make 3% reservation for persons with disability in terms of Section 33 of the Act.
Both the writ petitions are, therefore, allowed in the above terms.
( RANJIT SINGH )
JAI PARKASH AND OTHERS Vs STATE OF HARYANA AND OTHERS LPA 96 of 2008 in CWP16016 of 2000IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
DATE OF DECISION: 14 -07-2008
Jai Parkash and Others ....Petitioner(s) through Sh. Arun Jain Sr. Advocate with
Mr. Amit Jain Advocate.
State of Haryana and Others .....Respondent(s)
LPA No.97 of 2008 in
CWP.NO.6985 of 2004
Suresh Pal and Others ....Petitioner(s) through Sh. Arun Jain Sr. Advocate with
Mr. Amit Jain Advocate.
State of Haryana and Others .....Respondent(s)
LPA No.108 of 2008 in
CWP.NO.1765 of 2001
Vinod Kumar and Another ....Petitioner(s) through Sh. R.K. Malik Sr. Advocate with
Mr. P.K. Rohilla Advocate.
State of Haryana and Others .....Respondent(s)
LPA No.109 of 2008 in
CWP.NO.16188 of 2000
Suresh Pal and Others ....Petitioner(s) through Sh. R.K. Malik Sr. Advocate with
Mr. P.K. Rohilla Advocate.
State of Haryana and Others .....Respondent(s)
HON'BLE MR. JUSTICE VIJENDER JAINCHIEF JUSTICE
HON'BLE MR. JUSTICE JASWANT SINGH
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
VIJENDER JAIN CHIEF JUSTICE
The judgment in the present Latters Patent Appeal shall also
dispose of three other connected LPAs bearing No.97 of 2008 108 of 2008 and 109 of 2008 since common questions of facts and law are involved as also these are directed against a common judgment dated 3.12.2007 passed by the learned Single Judge dismissing the writ petitions.
For the sake of convenience and with the consent of learned
counsel for the parties the facts from LPA No.96 of 2008 are being taken.
Briefly the facts are that the Haryana Public Service Commission (For short HPSC) issued an advertisement in various newspapers in June-July 1996 to fill up six temporary posts of Assistant Engineers(Civil) (Class II) in the PWD (BandR Branch) Haryana in the pay scale of Rs.2200-4000/- plus usual allowances as sanctioned by the Haryana Government. The selection however could not be made in time and number of posts advertised were increased by issuance of a corrigendum in
September 1999 from 6 to 39. The last date of submission of applications was extended upto 30.11.1999 and the date for the purpose of age limit was fixed as 1.8.1999 in stead of 1.8.1996.
The appellants-petitioners submitted their applications and were selected as per the result of the selection declared/published on 31.5.2000 (Annexure P.4). A letter dated 31.5.2000 came to be issued by HPSC to the Secretary Government of Haryana PWD BandR Department recommending the names of the candidates including the petitioners categoriwise in order of merit for appointment to the post of Assistant Engineers(Civil) (Class II) in PWD BandR Department Haryana (Annexure P4/A). Letters dated 8.8.2000 were issued to the candidates by the respondent-Department to appear before the Director Health Services Haryana Chandigarh for their medical examination and letters were also issued for verification of character and antecedents of selected candidates.
In the meanwhile an order dated 21.8.2000 was issued by
respondent No.1 vide which 42 Junior Engineers/Draftsmen were promoted as Sub Divisional Engineers on ad hoc basis subject to the approval of HPSC with a condition that they will be reverted to their original posts as and when direct recruits join. The appellants-petitioners aggrieved by the action of the respondent-Department in not permitting them to join their duties were constrained to file CWP No.16016 of 2000.
Similarly other writ petitions bearing CWP Nos.16188 of 20001765 of 2001 and 6985 of 2004 were filed. Respondent-Department contested the same on the grounds inter-alia that restructuring adopting austerity measures had taken place in 55 Departments on the report dated 17.1.2001 of a committee of
Secretaries of various Departments and accepted by the Council of Ministers in its meeting held on 15.3.2001 which resulted into reduction of posts of Assistant Engineers (Civil)/Sub Divisional Engineers in the respondent-department from 235 to 159.
According to the respective quota provided in Rule 6 to the Haryana State Engineers Class II PWD (BandR) Branch Rules 1965 (hereinafter to be referred as 1965 Rules) out of 159 posts 91 posts fell to the share of direct recruits whereas 68 were meant for promotees. It was stated that against 91 posts meant for direct recruitment 109 Assistant Engineers (Civil)/Sub Divisional Engineers are/were already in position and against promotion quota of 68 126 incumbent are working and as such the appellants-petitioners could not be appointed in pursuance of the recommendations made by the HPSC. It was further stated that the excess incumbent are being adjusted against the resultant vacancies arising after 31.5.2001. 40 Junior Engineers/Circle Head Draftsmen were given only additional charge to look after the post of Sub Divisional Engineers(Civil)
in addition to their own duties without any extra remuneration vide orders dated 7.12.2004. It was further stated that it was only a stop gap arrangement. During all this process the select list in which name of the appellants-petitioners figured elapsed.
Respondent-Department had sent a requisition dated 3.3.2006 for filling up 44 vacancies which arose during the period from 1.6.2001 to 3.3.2006 i.e after the expiry of the validity period of the select list dated 31.5.2000 and the said vacancies had nothing to do with the vacancies occurring prior to 31.5.2001 on which the appellants-petitioners would have any claim. It is to be noticed that the life of the select list dated 31.5.2000 had been extended till 31.5.2001 and the prayer of the appellantspetitioners for restraining the respondent-Department to elapse the select list was declined by this Court vide order dated 4.2.2005. In view of the aforesaid facts respondent-Department had put forth their case that since there was no post for their appointment due to restructuring appellantspetitioners
had no right for appointment merely on the basis of their empanelment more so after the select list had expired in November 2001.
Learned Single Judge framed three issues which are as under:
I. Whether restructuring of cadre by the government to downsize the cadre strength for austerity measures is permissible under the 1965 Rules and the General law?
II. Whether the petitioners have acquired indefeasible or vested right to seek appointments to the posts of Assistant Engineer which could be enforceable by issuance of a writ in the nature of mandamus?
III. Whether the select panel after 31.5.2001 would continue to be alive with the consequence that appointments to the post of Assistant Engineer may be made from that select panel?
On issue No.1 the learned Single Judge observed that once the
government while framing the rules in pursuance to proviso to Article 309 of the Constitution has kept a power reserved to itself to determine and redetermine the cadre strength at specified intervals then the exercise of such a power in the facts of the present case cannot be challenged specially in view of the austerity measures undertaken by the Department. Placing reliance on N. Ramanatha Pillai v. State of Kerala AIR 1973 SC 2641 State of Haryana v. Shri Des Raj Sangar AIR 1976 SC 1199 and K. Rajendran v. State of Tamil Nadu (1982) 2 SCC 273 it was observed that a post can be abolished in good faith but if it is done with malafide intentions or as a mask of some penal action such action is not permissible.
When the said action taken is legislative or executive in nature it is always subject to judicial review. The decision of the respondent-Department to reduce the cadre strength of the cadre of Assistant Engineers (Civil) in pursuance of the decision of Council of Ministers dated 15.3.2001 cannot be regarded as illegal more so when austerity measures resulting into down sizing of cadre strength have been adopted in many Departments. On the dispute of calculation of number of vacancies raised by the appellantspetitioners it was observed that in view of the affidavit dated 9.1.2007 filed by Sh. Dharamvir Financial Comissioner and Principal Secretary to Government Haryana it is not deemed necessary to go into calculations based on gradation list since it is not possible for the Court to go into such determination of facts especially when a responsible officer of the rank of Financial Commissioner has filed an affidavit about the number of vacancies. In regard to the plea of the appellants-petitioners that if the ratio of 57:43 of direct recruits viz-a-viz promotee is implemented more posts would fall to the share of direct recruits the Court held that the posts were
advertised in July 1996 and then in September 1999 and thus in view of the affidavit dated 9.1.2007 filed by the Financial Commissioner and Principal Secretary to Government of Haryana there is no room to entertain any doubt regarding the calculation of vacancies. The position as reflected in the said affidavit had to be accepted.
With regard to issue No.2 the learned Single Judge placing reliance on State of Haryana v. Subhash Chander Marwaha (1974) 3 SCC 220; Mani Subrat Jain v. State of Haryana (1977) 1 SCC 486; Jatendera Kumar v. State of Punjab (1985) 1 SCC 122 Shankarasan Dash v. Union of India (1991) 3 SCC 47; Neelima Shangla v. State of Haryana (1986) 4 SCC 268; U.P Bhumi Sudhar Nigam Limited v. Shiv Narain Gupta 1994 Suppl. (2) SCC 541; K Jayamohan v. State of Kerala (1997) 5 SCC 170; Rabiu Laxmibai Kshetriya Gramin Bank v.
Chand Behari Kapoor (1998) 7 SCC 469; Vindodan T v. University of Calicut (2002) 4 SCC 726 Bhatiarani Gramiya Bank vs. Pallab Kumar (2004) 9 SCC 100 and State of U.P v. Raj Kumar Sharma (2006) 3 SCC 330 it was held that a person does not acquire a indefeasible right for appointment on the basis of his empanelment and State is not under any legal duty to fill all or any of the vacancies and further once the select list
had expired persons could not be appointed on the basis of their names in the expired select list. In the present case due to austerity measures the post of the cadre of Sub Divisional Engineer/Assistant Engineers (Civil) were decreased from 235 to 159 and further the same was already over subscribed and no post was available for appointment of the appellantspetitioners.
Even the select list had already expired in 2001. Thus the appellants-petitioners had no indefeasible right to seek appointment by the process of issue of a writ of mandamus to the posts now advertised in 2006.
With regard to issue No.3 it was observed that keeping in view
the law laid down by the Hon'ble Supreme Court in case of State of U.P v. Ram Sarup Saroj 2000(1) SCC 699 it was one thing to say that the select list would continue to be alive if before the date of its expiry the writ petition has been filed it is however a different proposition if after the preparation of the select list the cadre strength has been reduced by down sizing the cadre of Assistant Engineers (Civil) along with other cadres in the same Department as well as 54 other Departments. Once no post was
available after reduction in cadre strength then whether select list is to survive or not would pale into insignificance. In such circumstances it is not possible to direct the respondents to offer appointment to the selected candidates/appellants-petitioners against the vacancies for which requisition was sent on 3.3.2006 as these posts/vacancies became available subsequent to the expiry of the validity of the select list i.e 31.5.2006 and that too after applying a cut on the cadre strength. Thus the appellants-petitioners would not be entitled to seek any claim to the post advertised in 2006. The writ petition was accordingly dismissed vide the impugned judgment dated 3.12.2007 passed by the learned Single Judge.
We have heard learned counsel for the appellants-petitioners.
Firstly it has been contended by learned counsel for the appellants that reduction in the cadre strength by the respondent- Department under the garb of restructuring was undertaken with the malafide intention to deny the rightful claim of the petitioner for appointment and secondly that even on the reduced strength after restructuring the appellants were entitled to be appointed because sufficient vacancies for appointment would be available if proper calculation is done since the calculations of the vacancies for their appointment as depicted by the Department have not been correctly made inasmuch as the respective quota of 57:43 between the direct recruit and promotee has not been adhered the adhoc promotees have encroached upon the quota of direct recruits etc.
It is not in dispute that under 1965 Rules the Government is
empowered to increase or decrease the number of posts. In exercise of such powers the number of posts of Sub Divisional Engineers/Assistant Engineers (Civil) as also other cadres in the Department were decreased by way of restructuring during the period of process of selection and appointment of the appellants.
The appellants have levelled vague and sweeping allegations that such reduction of number of posts had been done with malafide intentions on paper only and with a view to deprive the
appellants from getting appointment. No person by name has been impleaded as party against whom allegations of malafide could be levelled or proved. It is well settled that if something is to be proved as a result of malafide intention of a particular person such person has to be impleaded as a party and allegations have to be proved on record by placing evidence or sequence of events. As regards legal malafide it has come on record that down sizing of staff had been undertaken in various cadres not only in the respondent-Department but had taken place in 54 other departments of Government of Haryana as such one cannot say that such decision was a result of any legal malafide on the part of the respondent-Department/State Government so as to deny the claim of the appellants for appointment.
Therefore the allegations being vague and not supported by any material on record the first contention raised by learned counsel for the appellants deserves to be outrightly rejected.
The second contention raised by the appellants to the effect that
vacancies had not been properly calculated the prescribed quota between the direct recruits and promotee had not been adhered to while apportioning vacancies in the respective quota ad hoc appointees had been appointed in excess of their quota and vacancies/posts were available for their appointment in the respondent-Department even on reduced strength etc relate largely to the determination of facts. It is not in dispute that to prove the respective canvassed facts affidavits on behalf of the respondent-State as well as the appellants were filed. The learned Single Judge placed reliance on the affidavit dated 9.1.2007 filed by Sh. Dharamvir IAS Financial Commissioner and Principal Secretary to Government of Haryana which disclosed the factual position existing in the Department clarifying that cadre of Assistant Engineers (Civil) had been restructured resulting into reduction of number of posts from 235 to 159 which was taken in pursuance of decision of the Council of Ministers dated 15.3.2001 based on report of committee of the Secretaries of the various departments. This reduction in cadre was a result of austerity measures embarked upon by the State Government. It was clarified that cadre of Assistant Engineers (Civil) was only of 159 posts and according to the quota of direct recruits as per rules at the relevant time 91 number of posts fell into their share whereas 68 posts went to the share of the promotees. It is not in dispute that against the said 91 posts belonging to the direct recruit quota 109 directly recruited Assistant Engineers were already working at that time and thus there was no post which could be filled up out of the recommendations of HPSC from amongst the petitioners- appellants. As such 39 candidates/petitionersappellants recommended by the HPSC could not be offered appointment.
The affidavit further states that on 31.5.2001 i.e date of expiry of the selection dated 31.5.2000 there were 107 direct recruits and 126 promotees Assistant Engineers (Civil) against the cadre strength of 91 and 68 respectively. In the face of such factual matrix could the appellants claim that they had a right to be appointed on the basis of their empanelment in question? To us finding recorded by the learned Single Judge on the basis of the affidavit filed on behalf of the State Government is correct and do not require any interference. A finding of fact based on evidence arrived at by the learned Single Judge cannot be upset/set aside in appeal just because it is not favourable to the appellants. No illegality has been committed by the learned Single Judge while relying upon the affidavit filed by the Financial Commissioner-cum-Principal Secretary with regard to the calculations of vacancies/number of posts available etc and holding that in such
circumstances it is not possible to issue any direction to the respondents to offer appointment to the appellants because no post was available. Learned Single Judge has further rightly held that the appellants on the basis of their empanelment which in any case stood expired had no right of appointment to 44 posts of Assistant Engineers (Civil) requisitioned on 3.3.2006 since it
is well settled by catena of judgments that a selected person has no indefeasible right of appointment and further no appointment can be ordered out of the select list which has elapsed/expired.
In view of the above we do not find any legal infirmity in the
judgment passed by the learned Single Judge.
Dismissed in limine.
( VIJENDER JAIN )
( JASWANT SINGH )
27-09-2010RAJESH KUMAR Versus HARYANA PUBLIC SERVICE COMMISSION PANCHKULA and ANO Civil Writ Petition No.17444 of 2010IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Rajesh Kumar Vs. Haryana Public Service Commission,
Panchkula and another
Mr.Pardeep Solath, Advocate, for the petitioner.
RANJIT SINGH, J.
The respondents have advertised three posts of Deputy Registrar Cooperative Societies, Haryana, which appeared in the Newspaper on 30.3.2010. The minimum essential educational qualification was Second Class Post Graduate Degree in Arts/Science/ Commerce or a First Class Bachelor Degree in Arts/ Science/Law/Business Management of a recognised University. In addition, requirement of about five years administrative experience in the Development Department was also one of the essential condition. The petitioner, who is working as a Senior Auditor in the Cooperative Department since 22.6.2004, did not apply for this post as he did not consider himself to be belonging to Development Department and, thus, perhaps thought that he did not fulfill the condition of five years administrative experience. Subsequently, however, a clarification has been issued to say that Agriculture and Horticulture, Cooperation, Animal Husbandry and Dairying, Development and Panchayats, Rural Development and Fisheries Departments would be treated as Development Departments. The grievance of the petitioner is that this clarification has been issued without issuing any corrigendum. Submission is that the petitioner has been deprived of his right to apply for the post. Since the petitioner has not submitted any application, perhaps it will not be possible to help the petitioner. The last date for submission of application is already over. If the petitioner feels aggrieved against the action of being deprived of his right of consideration/appointment, then he may have his alternative remedy of seeking damages. No case for interference in exercise of writ jurisdiction is made out. Dismissed.
Summary: Haryana Public Service Commission (HPSC), Panchkula Haryana website, mobile, contact address and approval / recognition details.