Full Judgment Text
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CASE NO.:
Appeal (civil) 3874 of 2001
PETITIONER:
Inder Jeet Khurana \005 Appellant
RESPONDENT:
State of Haryana & Ors. \005 Respondents
DATE OF JUDGMENT: 01/02/2007
BENCH:
G P Mathur & R V Raveendran
JUDGMENT:
J U D G M E N T
(With CA Nos.3875 and 3876/2001)
RAVEENDRAN, J.
These appeals by special leave are against the judgments dated
16.12.1994 in C.W.P. No.337/1994, CWP No. 14702/1992 and CWP
No.16236/1992 respectively of the Punjab & Haryana High Court.
2. Appellants, who were working as Ziledars in the Irrigation
Department, in the State of Haryana, filed the said writ petitions for
quashing the recruitment by ’transfer’ of Ziledars - Ashok Kumar Gaur, Sant
Lal Pachar and Bhagwan Dass, as B-Class Tehsildars, vide order of
appointment dated 21.10.1992. The appellant in C.A. No.3874/2001 has in
addition challenged the recruitment ’by transfer’ of Brij Bhushan, Jatinder
Kumar, and Mam Chand as ’B’ Class Tehsildars.
3. The Haryana Revenue (Group/B) Service Rules, 1988 (for short ’the
Rules’) govern the recruitment to Revenue Group-B Service consisting of
District Revenue Officers and Tehsildars. Rule 9 relates to method of
recruitment. Clause (b) of Rule 9(1) provides that in the case of Tehsildars,
recruitment to the service shall be : (i) 40% by direct recruitment (selected
by PSC on the basis of a Service Examination); (ii) 40% by promotion from
amongst Naib Tehsildars; and (iii) 20% by transfer from amongst :
(i) Superintendents of the office of the Deputy Commissioners;
(ii) Assistant Superintendents of Commissioners and Deputy
Commissioners’ offices;
(iii) District Kanungoes;
(iv) Zonal Ziledars of P.W.D. (Irrigation Branch), or
(v) Head Assistants of Director Land Records Office."
Sub-rule (2) provides that appointment by promotion shall be made on
seniority-cum-merit.
4. Rule 7 relates to qualifications and provides that no person shall be
appointed to any post in the service, unless he possesses the qualifications
and experience specified in column 3 of Appendix B to the Rules in the case
of direct recruitment, and those specified in column 4 of the aforesaid
Appendix in the case of persons appointed other than by direct recruitment.
Column 4 of Appendix B prescribes the following experience for
appointment to the post of ’Tehsildar’ by promotion and transfer :
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(1) By promotion :
Five years experience as Naib-Tahsildar and who has qualified
in departmental examination of Tahsildar
(2) By transfer :
One year experience as Superintendent in the Deputy
Commissioner’s Office; or
Five years experience as Assistant Superintendent in
Commissioner’s or Deputy Commissioner’s Offices; or
Five years experience as District Kanungo; Or
Five years experience as Canal Ziledars of P.W.D. (Irrigation
Branch); or
Five years experience as Head Assistant in Director Land
Record’s Office, Haryana."
Rule 18 provides that where the Government is of the opinion that it is
necessary or expedient to do so, it may, by order, for reasons to be recorded
in writing, relax any of the provisions of the Rules with respect to any class
or category of persons.
5. By communication dated 10.9.1991, the Financial Commissioner,
who is the appointing authority for the posts of Tehsildar, informed the
Engineer-in-Chief, Irrigation Department, that he proposes to select three
Tehsildars by way of transfer and requested him to recommend the names of
suitable and eligible officials of the age upto 50 years and also send their
confidential personal files and service books. (He also sent such requisition
to the Heads of Department of other eligible categories). In response to it,
the office of the Engineer-in-Chief, Irrigation Department, by letter dated
6.11.1991 recommended the names of 39 Ziledars, including Ashok Kumar
Gaur, Sant Lal Pachar and Bhagwan Dass (who were selected), and the three
appellants (who were not selected).
6. The State Government determined the ratio for sharing the vacancies
as 50% for Ziledars from Irrigation Department and 50% for other four
categories. The State Government also constituted a Three Member
Committee consisting of Commissioner, Ambala Division as Chairman and
Joint Secretary, Revenue and Director, Land Records as members, for
recommending the names of suitable candidates for appointment as ’B’
Class Tehsildars from the category of officials specified in Rule 9(1)(b)(iii)
by transfer. The government also fixed the following procedure for
ascertaining the merit : maximum 75 marks for evaluation of five latest
Annual Confidential Reports, and 25 marks for interview (overall
suitability), in all 100 marks. It was decided that the marks for Confidential
Reports, would be calculated by assigning 15, 12.5 and 10 marks per year,
respectively, for the grading of ’outstanding’, ’very good’ and ’good’ in the
ACRs. The Committee decided on the following break-up for assigning the
interview marks : 5 marks for academic qualification, 5 marks for
outstanding achievement in sports and other extra curricular activities, 5
marks for service experience and 10 marks for general knowledge,
knowledge of Revenue work and working of Revenue Department.
7. The computation of marks for ACRs, being a mechanical exercise of
Tabulation, the Committed directed the office of the Financial
Commissioner to prepare the same. The Committee held interview and
submitted a Report dated 24.8.1992 enclosing therewith the award list of
interview marks. Thereafter, final consolidated marks list was prepared. We
extract below the marks of the selected candidates and the appellants from
out of the said list :
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S.No. in
the list
Name
(all Ziledars)
Marks
for ACR
Marks for overall
suitability
Total
43
Ashok Kumar Gaur
62.5
8
70.5
12
Sant Lal Pachar
55
14
69
18
Bhagwan Dass
57.5
9
66.5
7
Ram Chander Malik
(Appellant)
52.5
7
59.5
4
Inderjit Khurana (Appellant)
43.75
8
51.75
30
Jai Narayan (Appellant)
40
11
51
[Note : Where there are two ACRs. for one year, showing very good and good, the
average of the two, namely, 11.75 was assigned for the year.]
The Financial Commissioner accepted the merit list and appointed Ashok
Kumar Gaur, Sant Lal Pachar and Bhagwan Dass, who received the highest
marks among Ziledars, as Tehsildars by order/memo dated 21.10.1992. The
said appointments were challenged by the appellants in the three writ
petitions. The High Court found no infirmity in the selection of the said
three candidates by assessing the inter se merit of the candidates.
Consequently, the High Court dismissed all the three writ petitions.
8. The rejection of the writ petitions is challenged in these appeals. The
following four contentions are urged by the appellants :
(i) The criteria for transfer from the post of Ziledars in the Irrigation
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Department to the post of Tehsildars in the Revenue Department
under Rule 9(1)(b)(iii) should have been seniority-cum-merit and not
merit.
(ii) The appointment to the posts of Tehsildar by transfer under Rule
9(1)(b)(iii) should be made by preparing a consolidated seniority list
of all eligible candidates in the five categories of posts referred to in
Rule 9(1)(b)(iii) and thereafter the required number should be taken
purely according to seniority. Division of 50% vacancies for Ziledars
and remaining 50% for other four categories, was done by the
Committee and was unauthorised.
(iii) In the case of Jai Narain (Appellant), the procedure of selection was
vitiated on account of considering only four Annual Confidential
Reports (for short the ’ACRs’) instead of considering five ACRs as in
the case of selected candidates for assigning marks. Further the ACRs.
of some other candidate with the same name were considered instead
of considering his ACRs. Lastly, the marks for interview (overall
suitability) were not properly calculated in his case.
(iv) The selection of Jitender Kumar and Mam Chand (Asst.
Superintendents) was bad as that they did not fulfil the minimum
experience criteria.
Points (i) and (ii) are common to all appeals. Point No. (iii) relates to
CA No.3876/2001. Point No. (iv) arises only in C.A. No.3874/2001.
Re : Contention (i)
9. The appellants contended that transfer from the post of Ziledar (class-
III post) to the post of Tehsildar (class II post) involved advancement to a
higher position with a higher scale of pay and, therefore, it amounted to
promotion. It was next submitted that as the transfer was, in effect,
promotion, such transfer could be only on the basis of seniority-cum-merit
and not on the basis of merit, having regard to Rule 9(2) which provides
’seniority-cum-merit’ as the method of recruitment for promotion. It is
submitted that if the selection had been made on the basis of seniority-cum-
merit, appellants who are senior to the selected candidates, would have been
selected.
10. The High Court rejected the said contention. It held that the criteria
for ’transfer’ to the post of Tehsildar from the category of ’Ziledars’ was not
seniority-cum-merit under the Rules, and in the absence of prescription of
method for recruitment by ’transfer’, the procedure laid down by the
government and adopted by the Committee for selecting the candidates by
assessing their comparative merit, was reasonable and did not suffer from
any infirmity.
11. Rule 9 contemplates recruitment to the posts of Tehsildar from three
sources. It provides that 40% should be filled by direct recruitment on the
basis of recommendations by the State Public Service Commission. The
method of selection is merit, by holding the Haryana Civil Service
(Executive Branch) and Allied Service Examination. Another 40% of
recruitment should be made by promotion from amongst Naib Tehsildars
who have 5 years experience and who have passed the departmental
examination of Tehsildars. The method of selection for promotion is by
senority-cum-merit. The remaining 20% are required to be filled by transfer
from five specified categories of posts. It is, thus, seen that for direct
recruitment and for promotion, the Rules specifically prescribe the method
of recruitment. But in regard to the 20% posts to be filled by ’transfer’, the
Rules only specify the categories of posts from which transfer could be
made and the minimum experience to be possessed. The Rules do not
prescribe the method of selection. The Rules are silent as to whether
selection should be by merit or seniority or seniority-cum-merit. This clearly
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shows that the rule-making authority left the choice of prescribing
appropriate procedure to the state government/appointing authority in the
case of 20% posts to be filled by ’transfer’. The reason is not far to seek. The
selection by transfer was to be made from different categories, namely,
Superintendents from the Offices of the Deputy Commissioners, Assistant
Superintendents from the Offices of Commissioners and Deputy
Commissioners, District Kanungos, Zonal Ziledars of Irrigation Department
or Head Assistants from the office of Director, Land Records. The
appointing authority had the discretion of choosing the cadre or service from
which appointments by transfer were to be made, depending upon the
special or periodical requirements, the number of vacancies to be filled, and
the number of eligible candidates available in the category. In the
circumstances, the method of selection was left to be decided by the
appointing authority.
12. The post of Tehsildar is in the hierarchy consisting of District
Revenue Officers, Tehsildars, Naib Tehsildars etc. in the Revenue
Department. On the other hand, Ziledars belong to a different cadre in the
Irrigation Department, where the promotional post is Deputy Collector. The
Head Assistants in Directorate of Land Records belong to yet another cadre.
Where the appointments were from different cadres, they were treated as
’transfer’ as contrasted from advancement in position from the same cadre
(Naib Tehsildar to Tehsildar) which was treated as ’Promotion’. Thus, for
the purpose of the Rules, upward movement in the cadre was referred to as
’promotion’; but from a different cadre was called as ’transfer’. Rule 9(2)
prescribes ’seniority-cum-merit’ as the method of recruitment only for
’promotion’ under Rule 9(1)(b)(ii) and Rule 9(1)(a), that is advancement
from Naib Tehsildar to Tehsildar and Tehsildar to District Revenue Officer.
If the intention was to prescribe seniority-cum-merit as the method of
recruitment for transfers also, it would have been so provided in Rule 9(2).
The reference to ’promotion’ in Rule 9(2) should be read with reference to
the use of the said word ’promotion’ in rule 9(1), in contradistinction from
’transfer’. It, therefore, follows that the mode of recruitment for transfer is
not seniority-cum-merit, as contended by the appellants.
13. In the absence of the Rules prescribing any method of recruitment, the
appointing authority was at liberty to follow any reasonable and appropriate
procedure for selection. In this case, the selection was made purely on the
basis of merit. The procedure adopted for assessing the inter se merit on the
basis of five years’ ACRs. and interview (set out in Para 6 above) is
reasonable and does not suffer from any infirmity, as rightly held by the
High Court.
14. The learned counsel for the appellants made an alternative
submission. They contended that recruitment for the posts of Tehsildars was
originally governed by Standing Order No. 12 issued by the Financial
Commissioner; that the said Standing Order contemplated selection to the
posts of Tehsildars by seniority subject to fitness; that Standing Order No.
12 continued to be in force even after the Punjab Tehsildari Rules 1932 were
framed under section 9 of the Punjab Land Revenue Act, 1887 providing for
the method of recruitment for the posts of Tehsildars; that even though
Punjab Tehsildari Rules 1932 were repealed insofar as the Tehsildars are
concerned, by rule 21 of the Haryana Revenue Group ’B’ Service Rules
1988, Standing Order No. 12 insofar as it was not inconsistent with the 1988
Rules was saved and continued to apply; that as the 1988 Rules do not
provide for the method of recruitment for transfer, the provision of Standing
Order No. 12 providing for recruitment of Tehsildars by seniority subject to
fitness, will apply to recruitment by transfer. Support is sought for this
contention, from the fact that the Financial Commissioner’s letter to Heads
of Department seeking the names of eligible candidates refers to Standing
Order No.12 and from the fact that on earlier occasions, transfers from
Ziledars to Tehsildars were made on the basis of seniority.
15. The said alternative contention is clearly without merit. It is seen that
Standing Order No. 12 was originally issued on 16.7.1909 and amended
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from time to time. The amended Standing Order No.12 clearly states that
after the Punjab Tehsildari Rules, 1932 were made, the appointments,
removal and discipline of Tehsildars are governed by those Rules.
Therefore, whatever was the method of recruitment of Tehsildars under
Standing Order 12, that got replaced by Rule 6 of the Punjab Tehsildari
Rules 1932 with effect from 26.11.1932. The Punjab Tehsildari Rules 1932
were repealed by the 1988 Rules in relation to Tehsildars. Thus, it is the
1988 Rules that govern the recruitment of Tehsildars. Standing Order No. 12
is used only for the procedural part of calling for information in prescribed
format in regard to candidates from various Departments.
16. Therefore, the contention that selection by transfer should be by
’seniority-cum-merit’ or ’seniority subject to fitness’ is rejected.
17. A rather vague contention was urged that the confidential reports were
not properly scrutinized and, marks were wrongly awarded for the ACRs.
The High Court had secured the original records and examined them and
ascertained the marks obtained by the candidates. After such examination, it
has recorded a finding that the selected candidates had secured more marks
and that there was no error or infirmity in assigning marks. The said original
record is also produced before us. No infirmity is shown in the marks
assigned.
Re : Question (ii)
18. We have already rejected the contention that selection is by seniority.
Rule 9(1)(b) provides for filling up 20% of the posts of Tehsildars by
transfer from five eligible categories of posts belonged to different cadres.
The said rule does not lay down how the available vacancies are to be shared
among the eligible categories. Rule 9(1)(b) also indicates that the
recruitment ’by transfer’ need not be from all five categories, by using the
word ’or’ when listing the five categories. Therefore, the appointing
authority can choose the categories from which it can make appointment by
transfer. In regard to the recruitment in question, the State Government
(Financial Commissioner) proposed that the vacancies shall be shared in the
ratio of 50% for Ziledars and 50% by the other four categories. This
proposal was in line with earlier recruitment where such ratio was followed.
The said proposal made by the Financial Commissioner on 14.7.1992 was
accepted by the Chief Minister on 17.7.1992. Thus, there was a clear
decision by the government that only 50% of the vacancies will be filled up
from the category of Ziledars. As six posts were to be filled by transfer,
three were filled from the category of Ziledars by assessing their inter se
merit, and the other three posts were from the other categories. There was no
question of mixing the category of Ziledars with the other categories for the
purpose of selection by transfer. The decision allotting 50% of vacancies is
taken by the Government and not the Committee, and does not suffer from
any infirmity.
Re : Contention (iii) [In CA No.3876/2001] :
19. It is not in dispute that marks should be assigned in respect of five
latest ACRs. The records were examined by the High Court. We have also
perused the original file. The records produced disclose that in the case of
selected candidates, marks for ACRs were, in fact, allotted with reference to
five ACRs. In the case of Ashok Kumar Gaur, the marks are 15, 15, 12.5, 10
& 10, in all 62.5. In the case of Sant Lal Pachar the marks are 12.5, 10, 10,
10 & 12.5 in all 55. In the case of Bhagwan Dass the marks allotted are 12.5,
12.5, 10, 10 & 12.5 in all 57.5. On the other hand in the case of Jai Narain
(appellant in CA No.3876/2001), the Tabular Statement prepared at the time
of selection shows ’NA’ for 1991-92 and marks of 10, 10, 10 & 10, in all 40,
were allotted in regard to the ACRs. for four years. The contention of Jai
Narain is that his ACR for 1991-92 was deliberately not made available and
while in the case of others, marks were calculated for five years, in his case,
it has been calculated only for four years thereby causing prejudice. There is
considerable force in the submission that as his ACR for 1991-92 was not
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put up, he was prejudiced as no marks were assigned for that year. But this
question is of academic importance. As notice above, the maximum marks
that could be awarded for each year’s ACR were 15. The case of the
appellant is that he subsequently came across his ACR for 1991-92 which
showed his grading as ’very good’. Therefore, even if 12.5 marks are added,
the aggregate marks for ACR would be 52.5 instead of 40. By adding the 11
marks secured in interview, his total marks would be 63.5 instead of 51. As
can be seen from the tabular statement in para 7 above, the total marks
secured by the selected candidates are 70.5, 69 and 66.5. All three have
secured more than the marks which Jai Narain would have secured (63.5)
even by adding the marks for the ACR for 1991-92. Therefore, there is no
merit in the contention of Jai Narain that he would have been selected if his
ACR for 1991-92 had been taken into account.
20. The appellant next contended that even in regard to the ACRs for four
years which were taken into account, there was a deliberate mix-up and the
ACRs of another Ziledar of the same name (Jainarain) whose date of birth
was 4.6.1939 and who was promoted as Ziledar on 6.11.1978 has been taken
note of. It is pointed out that his ACRs for the said four years are stated to be
missing subsequently in the department and this supports his contention that
someone else’s ACRs. were used in his case. The State has denied that four
years’ ACRs of some other Jainarain were used. It is submitted that the four
original ACRs were available at the time of consideration and selection and
they were lost subsequently. The consolidated statement showing the details
of Ziledars whose cases were considered along with particulars of the ACRs.
were sent by the Chief Engineer, Irrigation Department, to the Financial
Commissioner under cover of letter dated 4.2.1992. The appellant himself
produced a copy thereof as Annexure P-1 with the writ petition. The said
statement shows the name of Jai Narain at Serial No.29. It shows his date of
birth as 12.6.1951 and date of entry into service as 12.3.1984. It also states
that out of the 7 years of service of the appellant as Ziledar, for 4 years he
had secured the grading "good", for 2 years, he had secured the grading
"very good" and for one year he got the grading "below average". The
ACRs. shown are up to 1990-91 as the ACR for 1991-92 was not available.
It is, thus, clear that the ACRs. that were taken note of, were those of the
appellant and not of some other Jainarain. It is also clear that for the four
years preceding 1991-92, the grading was "good" and marks have been
assigned accordingly.
21. The appellant next contended that he had a postgraduate qualification
of MA and a B.Ed. Degree, and he had also participated in sports (first in the
State Level Kabaddi competition) and other extra-curricular activities
(Fancy Dress competition in 1972-73). It is alleged that appropriate marks
were not given for the educational qualification and sports and extra-
curricular activities). This contention is also without merit. The guidelines in
regard to interview show that out of the 25 marks, 5 marks were earmarked
for academic qualifications. In regard to the basic qualification of a Degree,
the candidates who secured first class were given 3 marks, those who
secured second class were given 2 marks and other graduates were not
entitled to any mark. Persons with postgraduate degree or LL.B. were
entitled to additional 2 marks. In this case, the appellant apparently did not
have first class or second class but he had a post-graduate degree. The result-
sheet of Ziledars prepared by the Committee shows that the appellant was
given 2 marks for his post-graduate qualification, 1 mark for experience, 2
marks for outstanding achievements (sports etc.) and 6 marks for overall
performance \026 in all, 11 marks. It is, thus, seen that his degrees as also his
sports and other activities, were duly taken note of and appropriate marks
awarded. The contention that the appellant was not given proper marks in
interview is, thus, without merit.
Re : Contention (iv) [Re : CA No.3874/2001] :
22. The posts of Ziledar (Class III post) in the Irrigation Branch and the
posts of Teshildar (Class II post) in the Revenue Department are in different
cadres. The promotional post for Ziledar in the Irrigation Branch is Deputy
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Collector (Class II post). The appellant and several other Ziledars including
one Prem Singh were promoted as Deputy Collectors by order dated
21.4.1992 of the Financial Commissioner (appointing authority) and given
effect to vide Government order dated 14.5.1992, with immediate effect.
23. The said Prem Singh had approached the High Court contending that
he should have been promoted as Tehsildar. The High Court directed that he
should be appointed by transfer to the post of Tehsildar. That was challenged
by the State. This Court allowed the State’s appeal by judgment dated
5.4.2000 (State of Haryana v. Prem Singh & Ors. reported in 2000 (9) SCC
18). This Court held :
"The facts available on record clearly disclose that Ziledar is a Class III
post and Tahsildar and Deputy Collector are Class II posts. x x x x x
Respondent 1 had worked for about two years on the equivalent post of
Deputy Collector to which post he had been promoted on 14-5-1992 and,
therefore, he cannot claim to be appointed as a Tahsildar by transfer. Posts
of Deputy Collector and Tahsildar are both Class II posts and are
equivalent posts. Deputy Collector is a post under the Irrigation
Department, whereas Tahsildar is under the Revenue Department in the
State. It is also made clear by the affidavit of Bhagwan Dass Bishnoi,
Tahsildar, Narnaul (Haryana) that Respondent 1 was promoted to the post
of Deputy Collector and was granted regular promotion thereto and the
Haryana Public Service Commission has also approved such promotion by
an order made on 14-5-1992. The contention advanced on behalf of the
first respondent that he held a post inferior to that of a Tahsildar falls to
the ground and, therefore, he cannot claim the benefit of promotion at all.
It is also clear from the Recruitment Rules that the case of the respondent
could not have been considered on any other basis. While Respondent 1
had been promoted to the post of Deputy Collector by an order made on
21-4-1992, the writ petition was filed on 26-11-1992. In the
circumstances, he could not have made a claim to the post of Tahsildar at
all."
It is not disputed that the appellant was promoted as Deputy Collector along
with Prem Singh by a common order. Therefore, what has been held by this
Court in the case of Prem Singh (supra), will squarely apply to the appellant
also. The appellant, who was promoted as Deputy Collector vide order
14.5.1992, is not entitled to claim promotion as Tahsildar nor challenge the
appointment of respondents 2 to 7 by transfer as Tahsildars as per order
dated 21.10.2002. Following the decision in Prem Singh, the appeal of
Inderjeet Khurana is liable to be rejected.
24. We are also informed that during the pendency of this appeal, the
appellant has retired and, therefore, the question of considering his case for
appointment as Tahsildar by transfer, would not arise. In view of the above,
it is unnecessary to consider the contentions raised by the appellant with
reference to the validity of appointment of respondents 2 to 7 as Tehsildars.
In fact, we have considered and rejected those contentions while considering
the common contentions.
25. Inder Jeet Khurana, the appellant, has also challenged the selection of
Jatinder Kumar and Mam Chand, both Assistant Superintendents, as
Tahsildars, on the ground that they did not possess the required minimum
experience of 5 years when their names were recommended by the
concerned Department and, therefore, they could not have been selected.
This is resisted on the ground that the Government had relaxed the
requirement relating to experience in their cases in exercise of power under
Rule 18. It is, however, unnecessary to examine this contention as neither
Jatinder Kumar nor Mam Chand is from the category of ’Ziledars’ but are
from the category of ’Assistant Superintendents’. As noticed above, it was
decided that 50% of the posts of Tahsildars will be filled by transfer from
the category of ’Ziledars’ and remaining 50% from other categories
belonging to the Revenue Department. The appellants, who are Ziledars,
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were not affected by the selection of those candidates falling under the other
categories, can have no legitimate grievance on that behalf.
Conclusion :
26. In view of the rejection of all contentions, these appeals are dismissed
as having no merit. Parties to bear their respective costs.