Full Judgment Text
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PETITIONER:
PARVEEN JINDAL AND ORS. ETC. ETC.
Vs.
RESPONDENT:
STATE OF HARYANA AND ORS.
DATE OF JUDGMENT16/03/1993
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
VENKATACHALA N. (J)
CITATION:
1993 SCR (2) 353 1993 SCC Supl. (4) 70
JT 1993 (2) 311 1993 SCALE (2)20
ACT:
Haryana Service of Engineers Class-I P.W.D. (Irrigation
Branch) Rules, 1964: Rules 5(2), 7(2)--First proviso.
Haryana Service of Engineers Class--II P.W.D. (Irrigation
Branch) Rules, 1970:
Service Law--Power of employer to fill up
posts--Cadre--Strength of--Fired by Rules--But posts not
filled for a long time--Held where strength of cadre is
fixed by Rules--Government is not justified in not filling
up the posts for a very long time except for very strong and
good reasons--Directions to State to fill up the posts
issued.
State Public Service Commission--Power to notify
vacancies--Commission has no authority to notify vacancies
wihout requisition from Government--Only appointing
authority viz. Government is competent to make requisition
to Commission.
Service Law--Selection--Written test and
interview--Prescription of qualifying marks for
interview--Obtaining of prescribed minimum marks does not
create a right to be called for interview--Commission can
limit number of candidates to be called for interview--Also
mere appearance by candidate at selection does not clothe
them with right to selection.
HEADNOTE:
The Public Works Department of Government of Haryana
consists of three wings viz., Irrigation, Roads and
Buildings and The Engineering Service in the Irrigation
Branch comprises both Class-I service-consisting of
Assistant Executive Engineers, Executive Engineers and
Superintending Engineers and Class-II service including
Assistant Engineers. While the Assistant Executive
Engineers are recruited by direct recruitment only, the
Executive Engineers are recruited by (i) direct recruitment;
(ii) by transfer; (iii) by promotion from Class-II service.,
The cadre strength of Assistant Engineers, fixed under tie
Rules is very large
354
as compared to the cadre strength of Assistant Executive
Engineers. For the purposes of promotion to Executive
Engineers both Assistant Executive Engineers and Assistant
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Engineers are eligible for which inter-se quota is fixed
under the Rules.
The Haryana Public Service Commission issued a notification
in 1985 inviting applications for selection to the posts of
Assistant Executive Engineers for all the three wings of the
P.W.D. Although the requisition from the Government was to
select Assistant Executive Engineers only for two wings viz.
Public Health and Buildings and Roads yet the Commission
notified the vacancies with respect to Irrigation Branch
also stating that posts in the said category are also likely
to be filled from the suitable candidates from this very
advertisement after the receipt of demand from the
Government. On the basis of written test and interview
selections were made for Public Health and Buildings and
Roads wings but no selections were made for the Irrigation
wing because even by the date of finalisation of selections,
no requisition or demand had come from the Government.
The appellants, who were not selected, filed writ petitions
in the Punjab and Haryana High Court for a direction to
respondents to fill up vacancies of Assistant Executive
Engineers and others falling to the quota of direct recruits
from amongst the applicants who had applied in pursuance to
the advertisement and for a further direction to the State
of Haryana to send requisition to the Commission to fill up
all vacancies which are meant for direct recruits. The High
Court dimissed all the petitions.
In appeals to this Court it was contended on behalf of the
appellants that (1) the Government acted arbitrarily in not
sending the requisition, inspite of the fact that vacancies
in Irrigation Branch existed for a number of years; (2) when
the rules created a particular category and the cadre
strength was also fixed therefor and more particularly when
a quota was reserved for them in the channel of promotion to
the category of Executive Engineers, it was not open to the
Government to nullify the spirit and object behind the Rules
by refusing to make appointment to the said category-, (3)
the procedure adopted by the Haryana Public Service Com-
mission was contrary to Rules because under the Rules a
candidate obtaining 50 per cent marks in the written test is
entitled to be called for viva voce, but the Commission
arbitrarily prescribed a threshold of 65 per
355
cent which resulted in denial of opportunity of selection to
the appellants.
The stand taken by the Government of Haryana was that the
decision not to send requisition for filling up the vacant
posts of Assistant Executive Engineers in Irrigation Branch
was bona fide and actuated by relevant considerations
because a large number of Assistant Engineers, who can be
posted only as Sub Divisional Officers/Sub Divisional En-
gineers, are in surplus over and above the cadre strength
and if the Assistant Executive Engineers are also appointed
as demanded by the appellants, they will be in further
surplus inasmuch as they too can be posted only as Sub
Divisional Officers/Sub Divisional Engineers.
Allowing the appeals in part, this Court,
HELD:1. The Public service commission had no authority to
include the vacancies in the Irrigation Branch in the
notification issued by it when the Government had not asked
for it. May be the Commission did so bona fide. Even so,,
the fact remains that none were selected against the
vacancies in the Irrigation Branch, evidently because no
demand/requisition ever arrived from the Government.
Indeed, it is not as if the appellants appeared only for the
vacancies in Irrigation Branch. It was a composite
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notification for all the three wings. The appellants do not
say that they confined their applications to Irrigation wing
alone. nose selected for the other two wings had admittedly
scored more marks at the selection. Therefore, the mere
appearance at the selection does not clothe them with the
right to selection or appointment. [366G-H, 367A-C]
State of Haryana v. Subhash Chandra Marwaha, [1974] 3 S.C.C.
220 and LJ. Divakar v. Government of Andhra Pradesh, A.I.R.
1982 S.C. 1555, relied on.
2. Where the Rules have created a particular category, fixed
its cadre strength and have also prescribed a quota for such
categroy in the matter of promotion to the higher category,
the Government would not be justified in not making
appointments to such category for over a decade unless there
are very strong and good reasons therefor. The Government
would not be justified in nullifying though not in word,
but in spirit the Rules in this manner. [367C-D]
2.1. There is no reason why the Government did not think it
fit to
356
make some ad hoc. appointments to the category of Assistant
Executive Engineers when it was recruiting such a large
number, on ad hoc basis, to the category of Assistant
Engineers. At the same time, the Courts have to think twice
before adding the numbers to the already over-loaded
service. It is not so much a question of ’punishing’ the
errant but one of what to do with the surplus personnel and
the consequent unwarranted burden upon the public exchequer.
On balancing the contending rights and equities, the Court
is of the opinion that at least part of the cadre strength
of Assistant Executive Engineers in the Irrigation Branch
should be riled up in the near future. [367E-G]
3. The selection held in which the appellants had appeared,
cannot be directed to be finalised. The only direction that
can properly be made herein is to direct the Government to
take steps for filling up the vacancies existing in the
category of Assistant Executive Engineers in the Irrigation
Branch as early as possible. Atleast half the vacancies
therein should be filed within a period of one year from
today. [367H, 368A-B]
I.J. Divakar v. Government of Andhra Pradesh, A.I.R. 1982
S.C. 1555, distinguished.
4. A reading of the first proviso to Sub.Rule (2) of Rule 7
shows that it prescribes a minimum percentage of marks in
the written test both for appointment as well as for being
called for interview (viva voce). It does not create a
right in the candidate, who has obtained the prescribed
percentage of marks, to be called for interview. [363A]
Ashok Kumar Yadav v. State of Haryana, A.I.R. 1987 S.C. 454,
relied On.
Umesh Chandra v. Union of India, [1985] 3 S.C.C. 721; Nilima
Shangla v. State of Haryana, [1986] 4 S.C.C. 268 and P.K
Ramachandra Iyer & Ors. etc. etc. v. Union of India & Ors.,
[1984] 2 S.C.C. 141, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.3465-69 of
1988.
From the Judgment and Order dated 26.10.1987 of the Punjab
and Haryana High Court in C.W.P. Nos. 755, 5141 & 3659/87 &
3138/88.
357
Shanti Bhushan and Prem Malhotra for the Appellants.
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Ms. Nisha Bagchi for Ms. Indu Malhotra, U.S. Chowdhary and
Ravindra Bana for the Respondents.
Bhal Singh Malik and S.M. Hooda for the Intervenor.
The Judgment of the Court was delivered by
B.P. JEEVAN REDDY, J. This batch of appeals is preferred
against a common judgment of Punjab an Haryana High Court
dismissing a batch of six writ petitions.
There are three wings/branches in the Public Works
Department of the Government of Haryana, viz., Irrigation,
Roads and Buildings and Public Health. We are concerned
herein with the Irrigation branch. The Engineering service
in the Irrigation branch comprises both class-I, and class-
II services. Recruitment to and conditions of service of
class-I are governed by the Haryana Service of Engineers
Class-I P.W.D., Irrigation Branch Rules, 1964 whereas
recruitment to and conditions of service of class-11 is
governed by Haryana Service of Engineers Class-11 P.W.D.
(Irrigation Branch) Rules, 1970. The lowest category in
class-I is that of Assistant Executive Engineers. Above it
is the category of Executive Engineers and above it
Superintending Engineers. Recruitment to the category of
Assistant Executive Engineers is only by direct recruitment.
Recruitment to the category of Executive Engineers is (a) by
direct recruitment, (b) by transfer of an officer already in
class-I service of the Government of India or of a State
Government and (c) by promotion from class-11 service. Sub-
rule (2) of Rule 5 of the class-I Rules says, "recruitment
to the service shall be so regulated that the number of
posts filled by promotion from class-11 service shall not
exceed 75% of the number of posts in the service excluding
the posts of Assistant Executive Engineers for the first 10
years from the date of commencement of these Rules and
thereafter shall not exceed 50% of the number of posts in
the service excluding the post of Assistant Executive
Engineers." The proviso to this sub-rule, however, says that
"in case an adequate number of Assistant Executive Engineers
who are eligible and considered fit for promotion are not
available the actual percentage of officers promoted from
class-11 service may be larger than 75% or 50%, as the case
may be." In other words, after the year 1974, the share of
class-11 officers in the promotion quota to the category
358
of Executive Engineers categroy, shall not exceed 50%, the
balance being allocated to the Assistant Executive Engineers
who are also entitled to be promoted to the categroy of
Executive Engineers. But in case adequate number of
Executive Engineers are not available, the said ceiling can
be exceeded.
Though the Assistant Executive Engineers are in class-I and
Assistant Engineers are in Class-II, both these categories
discharge similar functions, duties and responsibilities.
Members of both these categories are posted as Sub-
Divisional Officers/Sub-Divisional Engieers. Both are
eligible for promotion to the category of Executive
Engineers as stated above, but while the cadre strength of
Assistant Engineers is very large, the cadre strength of
Assistant Executive Engineers is quite small, with the
consequence that in the matter of promotion to the category
of Executive Engineers, the Assistant Executive Engineers
enjoy a marked advantage in view of the inter se quota
prescribed by sub-rule (2) of Rule 5. The Assistant
Executive Engineers get promoted far sooner than the
Assistant Engineers. The cadre strength of Assistant
Executive Engineers is stated to be 49. While the cadre
strength-of Assistant Engineers is not stated before us, it
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is admittedly far larger.
In the year 1985, the Haryana Public Service Commission
issued a notification stating that "a combined competitive
examination for recruitment to the post of Assistant
Executive Engineers (C) in the P.W.D. will be held by the
Haryana Public Service Commission in August/September, 1985
in accordance with the rules of Haryana P.W.D. Irrigation,
B&R and Public Health Branches, as amended from time to
time." Then followed the table of particulars, which must be
noticed:
Reserved Reserved Reserved
Name Of Post No. Of For S.c.of For B.c.
Post For Ex.
Haryana Haryana Service
----------------------------------------------------------
1 2 3 4 5
----------------------------------------------------------
(i) Haryana Service
of Engineers 15 4 2 1
Class I (Junior Sca-
les) in P.W.D. Public
Health Branch.
359
(ii) Haryana Service of 8 2 1
enginners Class I Enginee-
rs Class I (Junior Scales)
in P.W.D. B & R. Br.
-----------------------------------------------------------
(iii)Haryana Service of
Engineers Class I (Junior
Scale) posts in the P.W.D.
Irrigation Branch are also
likely to be filled from
the suitable candidates
from this very advertisement
after the receipt of demand
from the Government.
----------------------------------------------------------
2. The number of posts given against each category is liable
to variation. Three posts (two for S.C.of Haryana and One
B.C. of Haryana) in P.W.D. B & R Branch are reserved failing
with other shall be considered. Seven posts (four for S.C.
of Haryana, two for B.C. of Haryana and one for Ex-
Servicemen) in P.W.D. Public Health Branch are reserved
failing whom others will be considered".
It is significant to notice the wording of item (iii) in the
table. It is clear therefrom that the Public Service
Commission had notified the vacancies in the category of
Assistant Executive Engineers (referred in the Rules and in
the notification as Engineers class-I (Junior Scale)) even
without a requisition from the Government. The-Commission
by stating that posts in the said category "are also likely
to be filled from the suitable candidates from this very
advertisement after the receipt of demand from the Govern-
ment", had made it known to the candidates-of the absence of
authority. Admittedly, no such demand or requisition was
ever received by the Government at any time after the
issuance of the said notification. It is equally relevant
to point out that under the notification, applications for
selection to the category of Assistant Executive Engineers
in all the three wings of the P.W.D. were called for. The
eligibility criteria and the qualifications required for
appointment to the said category is stated to be indentical
in all the three wings though they are governed by different
sets of rules. It is also stated before us that no separate
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applications were necessary and that one could apply for
appointment in all or any of the three wings indicating his
choice and subject to his fulfilling the prescribed
qualifications.
In response to the notification aforesaid, several Engineers
including
360
the appellants herein applied. A written test was.
conducted followed by an oral interview. On the basis of
the marks obtained in the written test and the oral
interview, certain persons were selected for Public Health
and Buildings & Roads wings. No selections were made for
the Irrigation wing evidently for the reason that even by
the date of finalisation of selections, no requisition or
demand had come from the Government. It is only then that
the appellants approached the Punjab and Haryana High Court
with a batch of writ petitions praying for the issuance of
an appropriate writ, order or direction to the respondents
(Government of Haryana and the Haryana Public Service Com-
mission) "to fill up 44 vacancies of Assistant Executive
Engineers and others falling to the quota of direct recruits
from amongst the applicants who had applied in pursuance of
the advertisement........ They asked for a further direction
to the State of Haryana "to send requisition to the
Respondent-Commission to fill up all the vacancies in the
Class-I service which are meant for direct recruits
forthwith and to make appointment to the class-I service by
the method of direct recruits as required by the Rules." The
appellants challenged the method of selection followed by
the Commission as also the refusal/failure of the Government
to fill up the vacancies in the category of Assistant
Executive Engineers.
The writ petitions were opposed by the Public Service
Commission as also by the State Government. The High Court
dismissed the writ petitions rejecting the several
contentions urged by the appellants.
In this appeal, Sri Shanti Bhushan, the learned counsel for
the appellants urged the following contentions:
(1) The cadre strength of Assistant Executive Engineers in
the Irrigation wing is 49. As against the said strength,
there were only 5 persons holding the posts, which means the
vacancies are 44 in number. There has been no recruitment
to this category since 1979. In that year, the Government
had sent a requisition for 22 posts but only 8 were selected
by the Commission. From out of these eight, only five were
appointed to the category. In the year 1983, the Government
sent a requisition to the Commission for 23 posts but none
were selected or appointed. It is in this situation that
the notification issued by the Commission in the year 1985
envisaged a selection to the category of Assistant Executive
Engineers in the Irrigation Branch as well. The Commission
expected that in view of the vacancies earlier notified, the
Government would be sending a requisition and with
361
a view to save time and effort, it included the vacancies in
Irrigation wing as well in the Notification, which pertained
to the vacancies in the very same category in the other two
wings of the P.W.D., for which requisition was received.
The Government acted arbitrarily and unreasonably in no
sending the requisition, inspite of the fact that 44
vacancies have been existing in this category in Irrigation
Branch since a long number of years. This refusal to fill
up the said vacancies is mala fide and is designed to help
and promote the interest of class-II officers. Though,
according to the Rules, the number of promotees from class-
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11 in the category of Executive Engineers should not exceed
50%, the fact is that practically all the promotion posts in
the category of Executive Engineers are held by erstwhile
class-II officers for the reason that the category of
Assistant Executive Engineers in this branch is being kept
practically empty. When the statutory rules have created a
particular category and a cadre strength is also fixed
therefor and more particularly when a quota is reserved for
them in the channel of promotion to the category of
Executivie Engineers, it is not open to the Government to
nullify the spirit and object behind the Rules by refusing
to make appointment to the said category. If these 44 posts
are filled up, many of the appellants, if not all, are
likely to be selected and appointed.
(2) The procedure adopted by the Haryana Public Service
Commission is contrary to statutory Rules. Whereas the
Rules say that a candidate obtaining 50% marks in the
written test is entitled to be called for viva-voce, the
Commission has arbitrarily prescribed a threshold of 65%
which it had no jurisdiction to do. As a result of the said
arbitrary stipultion several of the appellants have been
denied the opportunity of selection. The Commission must
now be directed to make selection afresh for all the three
wings/branches in the Public Works Department.
With a view to clear the ground, it would be appropriate to
deal with the second contention first. It is based upon the
proviso to sub-rule (2) of Rule 7 of the 1964 Rules. Rule 7
deals with direct appointment. For the sake of convenience,
we may set out sub-rules (1) and (2) of Rule 7:
"DIRECT APPOINTMENT:- (1) A Candidate for
direct appointment shall not be less than 20
years and more than 25 years on age of or
before the first day of August next precedin
g
the last date of submission of applications to
the commission;
362
Provided that:-
(a) in the case of candidates who are
displaced persons and in whose case the age
limit for admission to Engineering College had
been relaxed, and in the case of candidates
belonging to the Scheduled Castes, Scheduled
Tribes and other backward classes the upper
age limit shall be such as may be fixed by the
Government from time to time.
(b) in the case of candidates possessing the
requisite qualifications who are already in
the service of the State Government, the upper
age limit shall be 30 years;
(2) The selection of candidates, including
those belonging
to Scheduled Castes, Scheduled Tribes or
Backward Classes, shall be made by the
Commission, after holding a competitive
examination, the syllabus for which shall be
such as may be prescribed by the Government
from time to time. The Commission shall
recommend the required number of candidates
after arranging their names in the order of
merit and indicating which out of them belong
to Scheduled Castes, Scheduled Tribes or
Backward Classes:
Provided that a candidate shall not be
considered qualified for appointment, unless
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he obtains not less than forty per cent marks
in each subject and also not less than fifty
per cent marks in the aggregate, and no
candidate who does not obtain the qualifying
marks shall be called for interview by the
commission.
Provided further that where a vacancy has been
reserved for a person belonging to Scheduled
Castes, Scheduled Tribes or Backward Classes,
who secures the highest marks in the aggregate
and has qualified for an appointment shall be
selected irrespective of his position with
respect to the other candidates."
363
A reading of the first proviso to Sub-Rule (2) of Rule 7
shows that it prescribes a minimum percentage of marks in
the written test hoth for appointment as well as for being
called for interview (viva voce). It does not create a
right in the candidate, who has obtained the prescribed
percentage of marks, to be called for interview. This is
how a similar Rule has been understood by a Constitution
Bench of this Court in Ashok Kumer Yadav v. State of
Haryana, A.I.R. 1987 S.C. 454. Regulation 3 in the Appendix
to the Haryana Civil Service (Executive) and other allied
services read as follows:
"3. No candidate shall be eligible to appear
in the viva voce test unless he obtains 45 per
cent marks. in the aggregate of all subjects
including at least 33 per cent marks in each
of the language papers in Hindi (in Devanagri
Script) and Hindi Essay provided that if at
any examination a sufficient number of
candidates do no obtain 45 per cent marks in
the aggregate the Commission may at their
discretion lower this percentage to not below
40 per cent for the language papers remaining
unchanged."
Construing the said Regulation, the Court
held:
"it is clear on a plain natural construction
of Regulation 3 that what is prescribes is
merely a minimum qualification for eligibility
to appear at the viva voce test. Every can-
didate to be eligible for appearing at the
viva voce test must obtain at least 45 per
cent marks in the aggregate in the written
examination. But obtaining of minimum 45 per
cent marks does not by itself entitle a
candidate to insist that he should be called
for the viva voce test all candidates who
satisfy the minimum eligibility requirement.
It is open to the Harvana Public Service
Commission to say that out of the candidates
who satisfy the eligibility criterion of
minimum 45 per cent marks in the written
examination, only a limited number of
candidates at the top of the list shall be
called for interview. And this has
necessarily to be done because otherwise the
viva voce test would be reduced to a farce.
It is indeed difficult to- see how a viva voce
test for properly and satisfactorily measuring
the personality of a candidate can be carried
out, if
364
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over 1300 candidates are to be interviewed for
recruitment to a service. If a viva voce test
is to be carried out in a thorough and
scientific manner as it must be in order
arrive at a fair and satisfactory evaluation
of the personality of a candidate, the
interview must take anything between 10 to 30
minutes."
In view of this decision, we do not think it necessary to
deal wit the decisions cited by Sri Shanti Bhushan, namely,
Umesh Chandra v. Union of India, [1985] 3 S.C.C. 721; Nilima
Shangla v. State of Haryana, [1986] 4 S.C.C. 268 and P.K
Ramachandra Iyer & Ors. etc. etc. v. Union of India & Ors.,
[1984] 2 S.C.C. 141. Suffice it to say that neither of them
lays down any principle contrary to the one quoted above
from Ashok Kumar Yadav.
Coming to the first submission of Sri Shanti Bhushan, the
defence of the Government is to the following effect:
"It is also admitted. that cadre strength of
Assistant Executive Engineer was fixed on
22.1.82 and is 49 out of which 5 persons are
in position. However, at present, there is no
vacant post of Assistant Executive Engineer in
the Department. The true facts are that
during the year 197980 some major projects
viz. Drainage Projects, Jawahar Lal Nehru
Project and Linning etc. under the World Bank
Schemes were taken into hand and there was
immediate requirements of technical staff.
For this purpose and to take up the time bound
works, 212 Assistant Engineers were recruited
on adhoc basis and 178 Sub Divisional Officers
were promoted from Junior Engineers/Draftsmen
etc. on adhoc basis to meet the immediate
requirement during the aforesaid period till
their replacement by the joining of regular
Assistant Engineers through Haryana Public
Service Commission. The Haryana Public
Service Commission recommended 176 number of
Assistant Engineers in December, 1981 for
regular appointment against the posts of
those, who were appointed/ promoted as
Assistant Engineer/Sub Divisional Officers on
adhoc basis. They were given offer of
appointment on 29.1.1982.On joining of regular
Assistant Engineers, the
365
services of about 45 adhoc Assistant
Engineers were terminated by the Government.
The adhoc Assistant Engineers whose services
were terminated by the Government filed
Civil Writ Petition No. 1529/89 Amarjeet Singh
and others v. State of Haryana and other,
writs involving the same cause of action
challenging their termination orders. Upon
regular hearing the above Civil Writ Petition,
the Punjab and Haryana High Court (Hon’ble
Justice Mr. I.S. Tiwana) in its orders dated
3.9.84 decided the matter in favour of the
adhoc Assistant Engineers recruited during the
year 1980. Thus the services of adhoc
Assistant Engineers could not be terminated
and they continued to hold the posts of
Assistant Engineers, till date. However,
Government have filed Letter Patent Appeal
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No.186-90 of 1985 and 374-381 of 1985.Amarjeet
Singh etc. v. State and the same is pending
for decision in the Hon’ble Punjab and Haryana
High Court. Similarly, the Sub Divisional
Officers, who are promoted on adhoc basis in
the year 1979-80 in excess of their quota
could not be reverted by the Government for
want of finalisation of Ranking List for the
purpose of promotion to the post of Sub-
Divional Officers in pursuance of the directio
n
given by the Hon’ble Punjab and Haryana High
Court in Civil Writ Petition No. 5630-5631 of
1981. J.P. Gupta and Shri Krishan v. State,
1524/76 M.L. Verma v. State and 4489/82 Shri
R.K Jain v. State."
The learned counsel appearing for the Government of Haryana
explains that 176 Assistant Engineers selected by the
Commission in December, 1981 for regular appointment are ’in
addition to 390 Officers (212 Assistant Engineers recruited
on adhoc basis and 178 Sub Divisional Officers promoted from
the category of Junior Engineers/Draftsment etc. on adhoc
basis). This statement is, however, disputed by learned
counsel for the appellants. Be that as it may, the
submission of the learned counsel for the Government of
Haryana is this: both the Assistant Engineers and Assistant
Executive Engineers are posted as Sub-Divisional
Officers/Sub-Divisional Engineers. There is no other
posting available for them. In the circumstances explained
in the counter-affidavit, a large number of Assistant
Engineers are in surplus over and above the cadre strength.
They have to be posted some-
366
where and they can be posted only as Sub Divisional
Officers/ Sub.Divisional Engineers. If Assistant Executive
Engineers are also appointed as demanded by the appellants,
they will be in further surplus inasmuch as they too can be
posted only as Sub Divisional Officers/Sub Divisional
Engineers and there are no posts available to post them.
The Government is finding it difficult to give postings to
the already existing Assistant Engineers, who have been
recruited/promoted on adhoc basis as stated above and who
could not be ousted because of the orders from courts. It
is for this reason that the Government did not send
requisition for filling up the 44 posts of Assistant
Executive Engineers in Irrigation" Branch. The said
decision is a bona fide decision actuated by relevant
considerations. There are absolutely no mala fides on the
part of the Government in not filling up the said posts of
Assistant Executive Engineers. It is also brought to our
notice that though a requisition was sent to the Commission
in the year 1983 for 23 posts of Assistant Executive
Engineers in the Irrigation Branch, the Government had
withdrawn the said requisition on May 20, 1983 itself i.e.,
even before any selection could be made. It was for this
reason that no one was selected or appointed to the said
category in that year. Counsel submitted, supported by the
counsel for the Commission, that in these circumstances, the
Commission was justified in not selecting anyone against the
post of Assistant Executive Engineers in the Irrigation
wing, more particularly when the expectation of the
Commission that the Government may send a requisition
therefor did not materialise even by the date of
finalisation of selections.
The question that arises in the above circumstances is
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whether the Government can be compelled to send a
requisition to the Commission for the selecting Assistant
Executive Engineers in respect of 44 vacant posts? and if
it, can be so compelled, would it be appropriate to direct
that those posts shall be filled by the candidates who
applied for and appeared at the selection held in the year
1985?
The first thing to notice is that the Public Service
Commission had no authority to include the vacancies in the
Irrigation branch in the notification issued by it when the
Government had not asked for it. The requisition from the
Government was to select Assistant Executive Engineers only
for the other two wings viz., Buildings and Roads and Public
Health. May be the Commission did so bona fide. Even so,
the fact remains that none were selected against the
vacancies in the Irrigation branch, evidently because no
demand/requisition ever arrived from the Government. Merely
because the
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appellants appeared at such selection they did not get any
right to compe either the commission or the Government to
select and appoint them. In deed, it is not as if the
appellants appeared only for the vacancies in Irrigation
Branch. It was a composite notification for all the three
wings. The appellant do not say that they confined their
applications to Irrigation wing alone Those selected for the
other two wings had admittedly scored more marks at the
selection. Because, the appellants could not get selected
against the vacancies in the other wings, they have turned
their attention to Irrigation wing. The relevance of their
attack upon the selection procedure adopted by the
Commission becomes clearer in this context. Be that as it
may, the mere appearance at the selection does not clothe
them with the right to selection and/or appointment. This
is the principle affirmed by this court in State of Haryana
v. Subhash Chandra Marwaha, [1974] 3 SCC 220 and I.J.
Divakar v. Government of Andhra Pradesh A.I.R. 1982 S.C.
1555. At the same time, we are constrained to observe that
where the Rules have created a particular category, fixed
its cadre strength and have also prescribed a quota for such
category in the matter of promotion to the higher category,
the Government would not be justified in not making
appointments to such category for over a decade unless there
are very strong and good reasons therefor. The Government
would not be justified in nullifying though not in word,
but in spirit the Rules in this manner. We are also not
persuaded that the defence put forward by the Government in
this case is acceptable. There is no reason why the
Government did not think it fit to make some adhoc
appointments to the category of Assistant Executive
Engineers when it was recruiting such a large number, on
adhoc basis, to the category of Assistant Engineers. The
situation in which the Government finds itself today is
really of its own making. The problem is no doubt real.
The courts have to think twice before adding the numbers to
the already over-loaded service. It is not so much a
question of ’punishing’ the errant but one of what to do
with the surplus personnel and the consequent unwarranted
burden upon the public exchequer. On balancing the
contending rights and equities, we are of the opinion that
at least part of the cadre strength of Assistant Executive
Engineers in the Irrigation branch should be filled up in
the near future.
The question then arises whether the selection held in 1985-
86 at which the appellants had appeard, should be directed
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to be finalised. We do not think so. The situation is not
similar to the one considered by this court in Divakar.
That was a case where the commission called for. applica-
tions pursuant to the requisition from the Government, held
the interviews
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and was about to finalise the select list that the
Government withdrew the requisition. In those
circumstances, this Court, while holding that the candidates
who appeared for the selection had no right to compel the
commission or the Government to select and appoint them, yet
gave a direction, in the interest of justice, to finalise
the selection process and forward the select Kg to the
Government.The situation in this case, as already explained
hereinbefore is totally different. The only direction that
can properly be made herein is to direct the Government to
take steps for filling up the vacancies existing in the
category of Assistant Executive Engineers in the Irrigation
branch as early as possible, Atleast half the vacancies
therein should be filled within a period of one year from
today.
Before concluding, we must refer to certian letters relied
upon by Sri Shanti Bhushan to justify the notification
issued by the Commission. He relied upon the letters of the
Engineer-in-Chief dated 16.8.1985, 16/ 20.5.1986 and another
letter written in between (the date of this letter is not
given) addressed to the Government of Haryana outing that
while at the moment there was no vacancy of Assistant
Executive Engineer, there was a possibility of some
vacancies arising on amount of retirement etc. He, there-
fore, requested the Government to take. steps to select
persons therefor, Firstly, it may be noticed that the
appointing authority for this category being the Government,
only the Government could send the requirsition/demand to
the commission and not the Engineer-in-Chief. The aforesaid
letters are merely in the nature of recommendation to the
Government. Secondly, all the three letters are subsequent
to the notification issued by the commission calling for
applications. These letters, therefore, do not justify the
commission calling for applications in respect of vacancies
in the Irrigation branch.
For the above reasons the appeals are allowed partly, A
direction shall issue to the, Government of Haryana to take
steps for filling up the vacancies, in the category of
Assistant Executive Engineers in Irrigation branch of P.W.D.
as early &A possible. in accordance with law, Atleast half
the vacancies shall be filled up within am year from today.
It is further directed that if any of the candidates who had
applied in pursuance of the 1985 Notification apply again,
and if they are found to have become age-barred, relaxation
in the matter of age shall be granted to them so as to make
them eligible for consideration. No other relief co be
granted In these appeals. There shall be no order as to
costs.
T.N.A.
Appeals allowed.
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