Full Judgment Text
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CASE NO.:
Appeal (civil) 5803 of 2007
PETITIONER:
Jitendra Kumar & Ors
RESPONDENT:
State of Haryana & Anr
DATE OF JUDGMENT: 11/12/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 5803 OF 2007
[Arising out of SLP (Civil) No. 21418 of 2006]
WITH
CIVIL APPEAL NOs. 5810,5801,5802,5800,5804,5805,5807,5806 and 5808 OF 2007
[Arising out of SLP (Civil) Nos. 4, 25, 40, 114, 1391, 359,
2621, 3662 and 1910 of 2007]
S.B. SINHA, J :
Leave granted in all the SLPs.
1. These appeals arise out of a common judgment and order dated
12.10.2006 passed by a Division Bench of the Punjab and Haryana High
Court whereby and whereunder the writ petitions filed by the appellants
praying inter alia for issuance of a writ of or in the nature of mandamus
directing the respondents to issue letters of appointments to them on the
premise that they had duly been selected in Harayana Civil Service (HCS)
(Executive Branch) and/ or Allied Service pursuant to or in furtherance of
the result declared by the Haryana Public Service Commission (for short
"the Commission") as also for quashing of notification dated 13.05.2005
whereby and whereunder the cadre strength of HCS (Executive Branch) has
been reduced from 300 to 230, were dismissed.
2 State of Haryana sent a requisition to the Commission in or about
December, 2003 for filling up 58 posts in HCS (Executive Branch) and 44
posts in Allied Services. Pursuant to or in furtherance of the said requisition
received by the Commission, an advertisement was issued on or about
24.01.2004 notifying that:
(i) the preliminary examination for the HCS Ex. Br. and the other
Allied Services Examination, 2004 would be held in May/ June,
2004 at Chandigarh for 58 posts in the "HCS (Ex. Br.)" and 44
posts in the Allied Services; The number of posts given against
each category is however liable to variation to any extent either
way.
(ii) The recruitment would be in accordance with the said ’1930 Rules’
and the Haryana Civil Services (Executive Branch) and Allied
Services and other Services common/ combined Examination Act,
2002 hereinafter refer as the ’2002 Act’ for the sake of brevity;
(iii) The examination will be conducted in accordance with the plan
and syllabus given in the Brochure for ’H.C.S. (Ex. Br.)’ and
Allied Services examination.
(iv) The combined competitive examination will comprise of two
successive stages (a) preliminary examination and (b) main written
examination and viva-voce/ personality test for selection to various
services and posts.
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Pursuant to or in furtherance of the advertisement inviting
applications, 14,237 candidates responded.
3. It is not in dispute that the matter relating to recruitment in the said
posts is government by the Haryana Civil Services (Executive Branch) and
Allied Services and Other Services Common/ Combined Examination Act,
2002 (Act No. 4 of 2002) (for short "the 2002 Act") and Punjab Civil
Service (Executive Branch) Rules, 1930 (for short "the 1930 Rules") as
amended in the year 2002.
The selection process was to take place in several stages, viz., holding
of preliminary examination so as to prepare a short list of those who may be
permitted to appear in the main examination followed by interview. 14,050
candidates including the appellants appeared in the preliminary examination,
on 23.05.2004. 1541 candidates including the appellants were selected in
the main examination. The written examination was conducted by the
Commission in terms of Rule 9(1) of the 1930 Rules wherein 1,394
candidates appeared.
4. On or about 27.09.2004, the respondent \026 State of Haryana sent
requisition to the Commission for filling up of 19 vacancies in HCS
(Executive Branch) by promotion of the in-service candidates in accordance
with the 1930 Rules. Out of the said vacancies, 8 were to be filled up from
amongst the category of the District Revenue Officer/ Tehsildars/ Naib
Tehsildar (Register A-I), 6 vacancies from members of Class III Services
(Register A-II) and 5 vacancies from the category of Block Development
and Panchayat Officer (Register C).
5. It is not in dispute that under Rule 17 of the 1930 Rules, 2/3rd of the
total available vacancies were to be filled up by the direct recruitment and
1/3rd of the total available vacancies were to be filled up by promotion. It is
also not in dispute that on or about 4.10.2004, pursuant to the
recommendations made by the Commission, Respondent \026 State entered the
names of 8 officers in Register A-I, 6 officers in Register A-II and 5 officers
in Register C for promotion to the HCS (Executive Branch).
6. Results of the main written open competitive examination were
announced on 7.12.2004 whereby 292 candidates were declared by the
Commission to have qualified themselves to appear in the viva-voce test.
Interviews of the successful candidates were held from 16.12.2004 to
18.12.2004.
7. General Elections of the Haryana Legislature were announced in on
17.12.2004. As the Model Code of Conduct became effective on and from
17.12.2004, the Election Commission in terms of a circular letter dated
27.12.2004 imposed a ban on issuance of appointment letters to the
candidates selected by the Commission without its permission till the
completion of the election process. However, on 30.12.2004, a select list of
102 candidates was published by the Commission recommending their
appointment to the HCS (Executive Branch) and the Allied Services on the
basis of the result of the examinations held by it. Admittedly, in view of the
ban imposed by the Election Commission, no offer of appointment was
issued. We may, however, notice that the Chief Secretary of the State of
Haryana by a letter addressed to the Election Commission asked for its
permission to issue the appointment letters. There is nothing on record to
show that the Election Commission responded thereto one way or the other.
8. Before proceeding further, we may notice that in terms of the 1930
Rules, Review Committee determined the cadre strength. In the year 1990,
the cadre strength was revised from 200 to 240 posts. No cadre review was
effected in the years 1993 and 1996. On or about 20.10.1999, the cadre
strength was fixed at 240. However, in the year 2002, due to deletion of 26
posts from the cadre, the total cadre strength was determined at 223.
A representation thereafter was made by the Haryana Civil Service
(Executive Branch) Officer’s Association (Association) for increase in the
cadre strength by increasing 48 posts which found favour with the
Committee. The Committee submitted its report opining that the total
strength of the cadre should be fixed at 271. According to the State, the
cadre strength was inflated on the basis of the representation made by the
Association as there was no actual need therefor.
9. In or about January, 2005, an advertisement was issued by the
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Commission intimating holding of combined/ common examination for
appointment to 15 more posts in HCS (Executive Branch) and 42 posts in
the Allied Services and inviting applications therefor from the eligible
candidates.
10. Elections for the Haryana State Legislative Assembly were admittedly
held on 3.02.2005.
On or about 13.02.2005, the State Government requested the Election
Commission to reconsider its instructions in regard to the ban imposed on
making regular appointment as the selection process had commenced much
before the announcement of election schedule.
11. Some writ petitions were filed before the Punjab and Haryana High
Court complaining undue delay on the part of the State in issuing the offers
of appointment. The new Government took over on 5.03.2005.
12. By a notification dated 13.05.2005, the cadre strength was reduced to
230.
After issuance of the aforementioned notification dated 13.05.2005,
writ petitions filed in the High Court were suitably amended.
The said writ petitions have been dismissed by reason of the
impugned judgment.
13. Before we advert to the rival contentions raised by the parties, it may
be placed on record that during pendency of these Special Leave Petitions,
the State Government directed filling up of the 27 posts of Deputy
Superintendent of Police by promotion including 8 vacancies for which the
appellants were selected by an order dated 21.02.2007. Similar orders of
promotion were passed to the post of Deputy Superintendent of Police on
12/13.03.2007 and 11 Excise and Taxation Officers on 3.04.2005.
14. Mr. P.P. Rao, Mr. Rakesh Dwivedi, Mr. L. Nageshwara Rao and Dr.
Rajeev Dhavan, learned senior counsel appearing on behalf of the
appellants, submitted as under:
(i) The Review Committee for determining the cadre strength having
made recommendations, the impugned notification reducing the
same could not have been issued.
(ii) The High Court failed to consider that even assuming that the State
Government had the requisite power to reduce the cadre strength of
HCS (Executive Branch) from 300 to 230, reliefs prayed for could
be granted as:
(a) the cadre strength of the Allied Service to which 44
candidates were selected was not disturbed;
(b) the impugned reduction of the cadre strength from 300 to
230 cannot affect in any manner the selections made to 34
(out of 58 posts) in the HCS (Executive Branch);
(c) in addition even after the reduction in the cadre strength, 10
vacancies were available in the HCS (Executive Branch);
(iii) The post haste reduction in the cadre strength without following
the due procedure was apparently colourable exercise of power by
the government as it was determined not to appoint under any
circumstance the candidates selected by the "Commission" as it
was constituted by the previous government.
(iv) Even if the notification dated 13.05.2005 is valid as the selection
process has not been held to be a tainted one and 34 posts in HCS
(Executive Branch) and 44 posts in Allied Services being still
vacant, there is absolutely no reason as to why the admitted
vacancies should not be directed to be filled up.
(v) Promotion to the post of HCS (Executive Branch) and Allied
Services having been given and as the Rules provided for quota
and rota, the appointments in the direct recruitment should be
made to fill the requirements of the Rules.
(vi) The findings of the High Court that a vigilance enquiry is pending,
by itself cannot take away the legal right of the appellants.
(vii) Assuming that the appellants do not have any legal right to be
appointed, the power of the State being coupled with duty and as
the action of the respondents must be supported by reasons and/ or
bona fide on their part; in respect whereof there being no proof, the
impugned judgment cannot be sustained.
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(viii) For the purpose of filling up of the vacancies, the State should
have proceeded to apply the doctrine of ’least invasion’ in the
instant case.
(ix) The High Court committed a serious error insofar as it failed to
take into consideration that the doctrine of ’legitimate expectation’
of the selectees as also the doctrine of ’promissory estoppel’ confer
legal rights upon the appellants to be appointed.
(x) The High Court committed a serious error insofar as it failed to
take into consideration that a successor government cannot take
recourse to regime revenge and undo all acts which are otherwise
valid inasmuch as the decision taken by one government cannot be
nullified only because there is a change in the government.
15. Mr. Raju Ramachandran and Dr. Abhishek Manu Singhvi, learned
senior counsel appearing on behalf of the State of Haryana, on the other
hand, submitted as under:
(i) Undue haste with which the cadre strength has been inflated by the
previous regime was sufficient for the State to issue the
notification dated 13.05.2005.
(ii) The legal position being settled that the selected candidates does
not have any legal right subject, of course, to non-arbitrary action
on the part of the appointing authority the High Court cannot be
said to have committed any error in passing the impugned
judgment..
(iii) The very fact that the entire selection process was under a cloud,
the State could not have made any appointment unless the cloud
itself was clear. As an enquiry in regard to the selection process by
the State Vigilance Bureau at the behest of the High Court in a writ
petition filed by the unselected candidates is pending, the State
without obtaining any report in this behalf did not cancel the
selection process.
(iv) As the selectees have no legal right, the doctrine of legitimate
expectation or promissory estoppel cannot have any application as
their non-appointments are supported by valid reasons and in any
event the selectees did not alter their position pursuant to any
promise made by the State Government.
(v) The question of taking recourse to regime revenge by the State
Government does not arise as any government is duty bound to
correct the illegalities committed by the previous regime and in
regard thereto it cannot turn blind. It only suspended the
appointments pending enquiry.
(vi) The State has furnished enough materials to satisfy the tests of
judicial review. As the Review Committee was required to
determine the cadre strength only upon taking into consideration
the need of the State, its recommendations pursuant to the
representation of the Association as also the decision of the Chief
Minister must be held to be wholly irrelevant.
(vii) The matter relating to recruitment of the officers being governed
by Act No. 4 of 2002, as a combined examination was to be held,
no appointment could be made either in the post of HCS
(Executive Branch) or in the Allied Services.
(viii) Upon consideration of the materials on record, the High Court has
arrived at a finding that efficacy of earlier selection is doubted
which should not be interfered with by this Court.
(ix) Although promotion had been effected after delivery of the
judgment of the High Court, but they have been made only against
the vacancies which are within the promotion quota and any
promotion which had been made on the basis of earlier inflated
strength, notice to show cause had already been issued. No
appointment has been made from the posts meant to be filled up by
the direct recruits.
16. Mr. S.K. Dholakia, learned senior counsel appearing on behalf of the
Commission, submitted that it is incorrect to contend that irregularity has
been committed by the Chairman and Members of the Public Service
Commission in making the recommendations for recruitment. According to
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the learned counsel, the Commission has complied with the requirements of
the Rules scrupulously and all steps have been taken within the time
schedule prescribed by the statute.
17. The Legislature of the State of Haryana enacted the 2002 Act to
provide for holding of common/ combined examination of direct recruitment
to HCS (Executive Branch) and Allied Services and other services.
Section 2(i) of the 2002 Act defines "Allied Services" to mean the
services shown in Appendix A thereof.
"Other Services" has been defined in Section 2(v) to mean "the
service/ posts, recruitment to which is made by holding common/ combined
examination, but does not include the service/ posts shown in Appendix A".
"Direct Recruitment" has been defined in Section 2(vii) to mean
recruitment by open competition but does not include (a) appointment by
promotion; or (b) appointment by transfer of an officer already in the service
of any State Government of the Government of India.
Section 4 of the 2002 Act provides that no appointment shall be made
to any posts or service to which the 2002 Act applies beyond the number of
post advertised. Sub-section (4) of Section 4 reads thus:
"(4) The State Government may offer appointment
to the candidates to Haryana Civil Service
(Executive Branch) and Allied Services or Other
Services, as the case may be, to the extent of
number of advertised posts only. However, no
candidate shall be offered appointment even to the
extent of number of advertised posts, if his name is
not recommended by the Commission or if he does
not fulfill the eligibility condition laid down by the
State Government for appointment to that service/
post by way of service rules, regulation of
executive instruction, as the case may be."
18. Appendix A appended to the 2002 Act provides for the following
categories in Allied Services:
"1. Excise and Taxation Officer
2. District Food and Supplies Controller
3. ’A’ Class Tehsildar
4. Assistant Registrar, Co-operative Societies
5. Assistant Excise and Taxation Officer
6. Block Development and Panchayat Officer
7. Traffic Manager
8. District Food and Supplies Officer
9. Assistant Employment Officer"
Pursuant to or in furtherance of the provisions of the 2002 Act, an
advertisement was issued on 24.01.2004 showing 58 vacancies in the post of
HCS (Executive Branch), 8 vacancies in the post of DSP, 21 vacancies in the
post of F.T.O., 1 vacancy in the post of A Class Tehsildar, 1 vacancy in the
post of Assistant Registrar Coop. Societies and 13 vacancies in the post of
B.D.P.O.
19. In the brochure published for the said purpose, it was inter alia stated:
"Those declared to have qualified the Preliminary
Examination shall submit in their own hand a fresh
application form for admission to the Main
Examination which will be obtained separately
after clearing/ passing the Preliminary
Examination. While filling up the application
form for Main Examination, candidate may apply
for appointment to all or any of the service/
services/ posts as advertised by the Commission
and he will be considered for the service/ post he
applies for. It is made clear that in case no order
of preference is given in the application meant for
Main Examination, the appointment shall be made
strictly in order of merit in the following warrant
of precedence to the various departments\005"
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20. Indisputably, the matter relating to the recruitment is governed by the
1930 Rules. Rule 3 of the 1930 Rules provides for the strength and
composition of the HCS (Executive Branch) cadre empowering the
Government to determine the same from time to time. It enjoins a duty upon
the government to make alterations, if it so feels, at the interval of every
three years upon examining the strength and composition thereof.
Rule 5 of the 1930 Rules provides for appointment of the members of
the service from time to time as required from amongst the accepted
candidates whose names had been duly entered in accordance with the 1930
Rules in one or other of the registers of Accepted Candidates to be
maintained thereunder.
Rule 6 provides for the registers which are of the following
description:
"(b) Register A-1 of "District Revenue Officer,
Tahsildars and Naib Tahsildars accepted as
candidates.
(c) Register A-II of members of Class III
Service accepted as candidates.
(d) Register B of person accepted as candidates
on the result of a competitive examination; and
(e) Register E of Block Development and
Panchayat Officers."
Register B was to be maintained for the direct recruits.
Rules 7 and 8 of the 1930 Rules provide for selection of candidates
for the purpose of entering their names in Register A-1 and Register A-II.
Rule 9 provides for holding of competitive examination for selection of
candidates for entering the names of successful candidates in Register B in
the following terms:
"9. Competitive examination to be held yearly for
selection of candidates for Register B \026 (1) A
competitive examination hereinafter called "the
examination for the post of Haryana Civil Service
(Executive Branch) and other Allied Services" the
Scheme of which is given below, shall be held at
any place in Haryana each year as per Schedule
given in Annexure \026 III for the purpose of
selection by competition of as many candidates for
the Service as the Governor of Haryana may
determine\005"
Rule 10 of the 1930 Rules provides for admission of candidates to the
examination. Rule 11 provides for selection of candidates for Register B
whereas Rule 12 provides for selection of candidates for Register C. Rule
17 provides for appointment of registered candidates to service in the
following terms:
"From Register B two candidates
From Register A-I one candidate
From Register B two candidates
From Register A-II one candidate
From Register B three candidates
From Register A-I one candidate
From Register B two candidates
From Register A-II one candidate
From Register C one candidate
From Register B three candidates
From Register A-I one candidate
From Register B two candidates
From Register A-II one candidate
From Register B two candidates
From Register A-I one candidate
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From Register B three candidates
From Register C one candidate
and thereafter in the same rotation beginning again
from Register B."
21. The basic fact of the matter in regard to issuance of advertisement,
holding of examination and publication of results of the written examination
as also holding of interviews is not in dispute. It has also not been disputed
that the names of appellants herein find place in the select list.
The power of the State to determine the cadre strength is also not in
dispute. The State before issuance of the notification dated 13.05.2005 has
taken into consideration the relevant facts. The history of determination of
the cadre strength from 1993 would clearly go to show that prior to issuance
of impugned notification, the State has taken into consideration all the
relevant facts. Although there does not exist any statutory rule in regard to
the matter of determination of the cadre strength, there exists some
guidelines. A formula has been laid down for determining the cadre strength
which read as under:
"Permanent Cadre Strength:
(a) General Administration posts:
(b) Posts in other Departments:
(c) Subtract 10 posts of SDO (C) to be manned
by Junior Scale IAS: i.e.
(d) Permanent Cadre Strength:
(e) Deputation Reserve @ 25%
(f) Leave Reserve @ 10%
(g) Training Reserve @ 10%
(h) Addl. for unforeseen demands.
Total of d, e, f, g and h is the Cadre Strength."
22. In the year 1990, the cadre strength was revised from 200 to 240 posts
having regard to the following position:
"(a) General Administration posts: 91
(b) Posts in other Departments: 71
(c) Subtract 10 posts of SDO (C)
to be manned by Junior Scale IAS: i.e. (-) 10
(d) Permanent Cadre Strength: 158
(e) Deputation Reserve @ 25% (+) 40
(f) Leave Reserve @ 10% (+) 16
(g) Training Reserve @ 10% (+) 16
(h) Addl. for unforeseen demands. (+) 10
Total 240"
23. Although a review was to be made after three years, as per Rule 3 of
the 1930 Rules, no cadre review was effected in the years 1993 and 1996.
On or about 20.10.1999, the cadre strength was fixed on the same line as
was done in 1990.
24. Again the process began in 2002. Upon taking into consideration the
suggestions given by various authorities, recommendation for deletion of 26
posts was made by the Committee from the cadre, as a result whereof
permanent strength came to be 140 posts and upon application of the
formula, as noticed hereinbefore, the total cadre strength came to 223. A
representation thereafter was made by the Association for increase in the
cadre strength by 48 which allegedly found favour with the Committee. The
Committee submitted its report opining that the total strength of the cadre
should be at 271. According to the State, the cadre strength was inflated on
the basis of the representation made by the Association and there was no
actual need therefor. Concededly, again the Chief Minister passed an order
on 20.10.2003 to add 20 more posts in the cadre strength note sheet the
relevant part whereof is as under:
"CM has seen and ordered that there is no need to
subtract the posts of SDOs. Even if the posts are
in HCS cadre the officers from junior scale of IAS
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can be posted in higher scale. He has further
ordered that the senior HCS posts should include:
1. Executive Magistrate - 3
2. Joint Director Sports - 1
3. Joint Director Tech. Education - 1
4. Joint Controller Civil Defence - 1
Ambala
5. FSO FC’s Office - 1
6. Ad. O. Irrigation - 1
7. FSO Excise & Taxation - 1
and further the LAOs posts may remain 11 as at
present and, therefore, the total senior duty posts
will be 200 on the basis of which total cadre
strength should be worked out as per the formula
keeping the additions for unforeseen demand at
10."
25. However, upon change in the political set up and upon an objective
consideration of the entire matter vis-‘-vis the need and interest of the State,
the cadre strength was fixed at 230. No serious challenge has been made to
this part of the judgment of the High Court.
We also do not see any reason to interfere with the impugned
notification dated 13.05.2005. What would be the need of the State and how
an administration shall be run is within the exclusive domain of the State.
The power of judicial review in such matter is very limited. The superior
judiciary ordinarily would not interfere in a matter involving policy decision.
We do not mean to say that the policy decision of the State is beyond the
realm of judicial review. However, power of judicial review can be
exercised only on the basis of known legal principles. [See Cellular
Operators Assn. of India and Others v. Union of India and Others, (2003) 3
SCC 186, Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental
Action Group and Others (2006) 3 SCC 434 and Sarbananda Sonowal v.
Union of India (2007) 1 SCC 174]
We, however, in the fact situation obtaining herein cannot opine that
any case has been made out where the court shall delve deep into the
aforementioned question.
26. It would be relevant to place on record that seven writ applications
were filed by the unsuccessful candidates. Serious allegations had been
levelled therein against the then Chief Minister Shri Om Prakash Chautala
and the then Chairman of the Commission Shri K.C. Bangar. Some selected
candidates have also been impleaded as party-respondents therein.
Purity of process of conducting of examination as an issue was raised
threin.. Even allegations of favouritism and use of political influence in
favour of nears and dears of the high-ups of the Government and the
politicians were made. The matter indisputably is pending investigation by
the Vigilance Bureau. The High Court, we are informed, has also directed to
carry out an investigation. It may also be placed on record that the
Commission was asked by the Vigilance Bureau to handover the records.
Such an action on the part of the Vigilance Bureau was the subject matter of
a writ petition filed by the Commission. The said writ petition has been
disposed of by a judgment dated 12.08.2005, in which one of us (Bedi, J.)
was a member. The said decision was reported in 2005 (3) PLR 486;
Paragraphs 14 and 22 whereof read as under:
"14\005It is not in dispute that the enquiries now
being conducted by the Vigilance Bureau pertain
to certain past selections. From the communication
received by the petitioner-Commission, it appears
that the action of the past Secretary, the past
Chairman and certain other Officers/Officials of
the Commission, are being probed with regard to
the serious charges. Under any circumstances, the
aforesaid enquiries cannot be taken to mean any
erosion of the authority of the Commission or its
independence. Even an expert and constitutional
body like the Commission is supposed to perform
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its duties, fearlessly and carry out selections on the
basis of the best merit available. However, if the
aforesaid selections are alleged to be tainted and
based upon consideration other than merit, the
Commission cannot, in such circumstances, claim
any immunity No body has a vested right to
perpetuate illegality or hide a scandal. All
selections made by public servants are supposed to
be based upon competence, merit and integrity.
The allegations to be contrary would not only
erode the public confidence in the Commission but
would also result in merit being a casualty\005.
22. It is, thus, apparent that an effort has been
made by the Commission to protect its Chairman
and the members, who for undisclosed reasons
have chosen not to directly approach this Court.
The commission which is a constitutional body has
unnecessarily filed the present petition to watch
the interest of the Chairman and member, who
have chosen to remain behind the curtain. The
Commission cannot equate itself, nor under the
Constitution of India can it be so equated, with its
Chairman and its members. The Commission has a
distinct and a constitutional identity, independent
of its Chairman and members. It is, thus apparent
that the present petition has been filed at the
instance of the Chairman and members, although
in the name of the Commission. We cannot put any
seal of approval to this act of the Commission."
27. We may furthermore notice that after the increase of the cadre
strength from 240 to 300, 19 candidates from Registers A-1, A-II and C
were nominated. Out of these 19 candidates, 3 are not in Haryana Civil
Service (Executive Branch) cadre. Remaining 16 candidates have been
issued show cause notice as to why they should not be repatriated to their
parent departments, which is again the subject matter of some writ petitions.
28. Although it is not necessary for us to go into the said question, we
may in passing also place on record that the present State Government had
withdrawn work of selection process from Haryana Public Service
Commission in view of its constitution and a reference under Article 317 of
the Constitution of India is pending decision.
29. Appellants herein indisputably are the selected candidates. The
principal question which, however, arises for our consideration is as to
whether they have, in the facts and circumstances of this case, have a legal
right to be appointed.
Submission of the learned senior counsel appearing on behalf of the
appellants is that the High Court did not consider the question as to whether
the posts being vacant, even if the reduced cadre strength is to be made
operative, whether appointments could have been made to the 34 posts
which are lying vacant in the share of direct recruits. The fact that 34 posts
are lying vacant even if the cadre strength is taken to be 230 may not be in
dispute but the question of filling up of the vacancies would arise only if
there exists a select list from which such vacancies can be filled up.
30. The legal principle obtaining herein is not in dispute that the selectees
do not have any legal right of appointment subject, inter alia, to bona fide
action on the part of the State. We may notice some of the precedents
operating in the field.
In Shankarsan Dash v. Union of India [(1991) 3 SCC 47], this Court
held:
"7 . It is not correct to say that if a number of
vacancies are notified for appointment and
adequate number of candidates are found fit, the
successful candidates acquire an indefeasible right
to be appointed which cannot be legitimately
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denied. Ordinarily the notification merely amounts
to an invitation to qualified candidates to apply for
recruitment and on their selection they do not
acquire any right to the post. Unless the relevant
recruitment rules so indicate, the State is under no
legal duty to fill up all or any of the vacancies.
However, it does not mean that the State has the
licence of acting in an arbitrary manner. The
decision not to fill up the vacancies has to be taken
bona fide for appropriate reasons. And if the
vacancies or any of them are filled up, the State is
bound to respect the comparative merit of the
candidates, as reflected at the recruitment test, and
no discrimination can be permitted. This correct
position has been consistently followed by this
Court, and we do not find any discordant note in
the decisions in State of Haryana v. Subhash
Chander Marwaha, Neelima Shangla v. State of
Haryana, or Jatendra Kumar v. State of Punjab."
Yet again in R.S. Mittal v. Union of India [1995 Supp (2) SCC 230],
this Court held:
"\005It is no doubt correct that a person on the select
panel has no vested right to be appointed to the
post for which he has been selected. He has a right
to be considered for appointment. But at the same
time, the appointing authority cannot ignore the
select panel or decline to make the appointment on
its whims. When a person has been selected by the
Selection Board and there is a vacancy which can
be offered to him, keeping in view his merit
position, then, ordinarily, there is no justification
to ignore him for appointment. There has to be a
justifiable reason to decline to appoint a person
who is on the select panel. In the present case,
there has been a mere inaction on the part of the
Government. No reason whatsoever, not to talk of
a justifiable reason, was given as to why the
appointments were not offered to the candidates
expeditiously and in accordance with law. The
appointment should have been offered to Mr
Murgad within a reasonable time of availability of
the vacancy and thereafter to the next candidate.
The Central Government’s approach in this case
was wholly unjustified."
(Emphasis supplied)
In Asha Kaul (Mrs.) and Another v. State of Jammu and Kashmir
[(1993) 2 SCC 573], this Court held:
"8. It is true that mere inclusion in the select list
does not confer upon the candidates included
therein an indefeasible right to appointment (State
of Haryana v. Subhash Chander Marwaha; Mani
Subrat Jain v. State of Haryana; State of Kerala v.
A. Lakshmikutty) but that is only one aspect of the
matter. The other aspect is the obligation of the
Government to act fairly. The whole exercise
cannot be reduced to a farce. Having sent a
requisition/request to the Commission to select a
particular number of candidates for a particular
category, \027 in pursuance of which the
Commission issues a notification, holds a written
test, conducts interviews, prepares a select list and
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then communicates to the Government \027 the
Government cannot quietly and without good and
valid reasons nullify the whole exercise and tell the
candidates when they complain that they have no
legal right to appointment. We do not think that
any Government can adopt such a stand with any
justification today\005"
[See also A.P. Aggarwal v. Govt. of NCT of Delhi and Another
(2000) 1 SCC 600]
In Food Corpn. Of India and Others v. Bhanu Lodh and Others
[(2005) 3 SCC 618], this Court held:
"14 . Merely because vacancies are notified, the
State is not obliged to fill up all the vacancies
unless there is some provision to the contrary in
the applicable rules. However, there is no doubt
that the decision not to fill up the vacancies, has to
be taken bona fide and must pass the test of
reasonableness so as not to fail on the touchstone
of Article 14 of the Constitution. Again, if the
vacancies are proposed to be filled, then the State
is obliged to fill them in accordance with merit
from the list of the selected candidates. Whether to
fill up or not to fill up a post, is a policy decision,
and unless it is infected with the vice of
arbitrariness, there is no scope for interference in
judicial review."
31. It is, therefore, evident that whereas the selectee as such has no legal
right, the superior court in exercise of its judicial review would not
ordinarily direct issuance of any writ in absence of any pleading and proof of
malafide or arbitrariness on its part. Each case, therefore, must be
considered on its own merit.
32. Dr. Rajeev Dhawan would submit that the negative right contemplated
by reason of the aforementioned decisions should be held to have conferred
a positive right on the selectee so as to hold that if there was no bonafide on
the part of the State or if the State had not assigned any sufficient or cogent
reasons for not appointing the selected candidates, the same would give rise
to a legal right in the selectees which is although not an unqualified one. It
was further submitted that the right become stronger when the selection
process is completed and the candidates are selected.
Whether we apply the negative test or the positive test, the decision
making process should veer round the question in regard to the lack of bona
fide or an act of arbitrariness on the part of the State. If lack of bonafide or
arbitrariness on the part of the State is proved, whether the right is
considered to be a vested or accrued right, or otherwise a negative right, the
superior court may exercise its power of judicial review. The judicial
intervention would, thus, be possible only when a finding of fact is arrived at
in regard to the aforementioned acts of omissions and commission on the
part of the State and not otherwise.
33. The question which, therefore, is required to be posed is : can in the
exigencies of the situation obtaining herein the State be said to have acted
bonafide in not making any appointment?
34. The State has serious reservations about the efficacy of the selection
process. It has also reservation in regard to the mode and manner in which a
decision was taken to increase the cadre strength. An inflated cadre strength
will have direct repercussions not only in the matter of good governance but
also the public exchequer. The State while exercising its power to review
the cadre strength is entitled to take note of the entirety of the situation
including the question as to whether the quantum of work has gone up or the
activities of the State have increased warranting upward revision in the cadre
strength. When a review committee is constituted under a statute, it has to
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act strictly in terms thereof. It must act within its four-corners.
Determination of cadre strength on the basis of the representation made by
the Association or exercise of suo motu power by the Chief Minister without
any material having been brought before him for the purpose of increase in
the cadre strength must be deprecated in strongest terms.
35. The High Court, for good and sufficient reasons, was of the opinion
that the State had acted bonafide in issuing the said notification dated
13.05.2005. There cannot be any doubt whatsoever that the State in absence
of any other factor was obligated to make appointments keeping in view the
reduced cadre strength. Selection process has several stages. The
Commission holds a constitutional duty to see that the entire selection
process is carried out strictly in accordance with law fairly, impartially and
independently. The selectors appointed by the Commission or its Chairman
and members are forbidden to take recourse to favouritism. Showing of any
favour to any candidate on an irrelevant or extraneous consideration would
be contrary to the constitutional norms of equality envisaged under Articles
14 and 16 of the Constitution of India. Fear or favour on the part of the
Commission cannot but be condoned.
36. In this batch of appeals, we are not concerned with the questions
which have been raised by the State of Haryana in its counter-affidavit in
regard to the acts of omission and commission on the part of the
Commission but there cannot be any doubt whatsoever that there existed a
cloud which is required to be cleared. Unsuccessful candidates have
levelled serious allegations against the members of the Commission. They
may or may not be correct. The Vigilance Bureau has initiated an enquiry
into the whole matter. Such an enquiry should, in our considered opinion,
be allowed to be continued unless the State in terms of the report made by
the Vigilance Bureau and upon making an enquiry of its own satisfies itself
that the selection process was not tainted. Its disinclination to make an
appointment till then cannot be found fault with. It is not a case where in
view of the provisions of Act No. 4 of 2002 as also the 1930 Rules, any
piecemeal appointment can be made. The examination is a combined
examination. It is an integrated process. Selection of candidates whether in
the civil service or allied service would depend upon the performance of the
candidates. Preference in the posts is required to be adjusted on the basis of
such performance. All appointments, therefore, are inter-linked.
Furthermore, no appointment can be made beyond the posts advertised for.
[See Ashok Kumar and Others v. Chairman, Banking Service Recruitment
Board and Others (1996) 1 SCC 283]
37. It is, therefore, difficult for us to hold that the decision of the State
was either mala fide or unreasonable or unfair or arbitrary. It has not been
alleged that the State was acting for unauthorized purpose.
38. We are not oblivious of the constitutional scheme that the decisions
taken by one government in public interest itself cannot be a ground for
review thereof at the hands of the successor government. It is not the
government which is in the seat of the power, matters in this behalf, but
what matters is the public interest.
39. Mr. Dwivedi has drawn our attention to a decision of this Court in
State of Karnataka and Another v. All India Manufacturers Organisation and
Others [(2006) 4 SCC 683] wherein it was held:
"66. Taking an overall view of the matter, it
appears that there could hardly be a dispute that
the Project is a mega project which is in the larger
public interest of the State of Karnataka and
merely because there was a change in the
Government, there was no necessity for reviewing
all decisions taken by the previous Government,
which is what appears to have happened. That such
an action cannot be taken every time there is a
change of Government has been clearly laid down
in State of U.P. v. Johri Mal and in State of
Haryana v. State of Punjab where this Court
observed thus:
"[I]n the matter of governance of a State or in the
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matter of execution of a decision taken by a
previous Government, on the basis of a consensus
arrived at, which does not involve any political
philosophy, the succeeding Government must be
held duty-bound to continue and carry on the
unfinished job rather than putting a stop to the
same."
There cannot be any doubt in regard to the aforementioned
proposition of law but the question herein is whether public interest would
be subserved by asking the State to proceed to make appointments.
Whereas, on the one hand, an action on the part of the State to interfere with
the good work done by the previous government solely on the basis of
change in the regime must be deprecated, there cannot however be any doubt
whatsoever that the successor government cannot blink over the illegalities
committed by the previous government. If illegalities have been committed,
the same should be rectified. When there exists a reasonable apprehension
in the mind of the State, having regard to the overall situation including the
post haste manner in which actions had been taken, to cause an enquiry to be
made and suspend the process of making appointments till the result of such
enquiry is obtained, such a decision on its part per se cannot be said to be an
act of arbitrariness or unreasonableness.
40. Application of doctrine of legitimate expectation or promissory
estoppel must also be considered from the aforementioned view-point. A
legitimate expectation is not the same thing as an anticipation. It is distinct
and different from a desire and hope. It is based on a right. [See Chanchal
Goyal (Dr.) v. State of Rajasthan (2003) 3 SCC 485 and Union of India v.
Hindustan Development Corpn. (1993) 3 SCC 499] It is grounded in the
rule of law as requiring regularity, predictability and certainty with the
Government’s dealings with the public. We have no doubt that the doctrine
of legitimate expectation operates both in procedural and substantive
matters.
In Kuldeep Singh v. Govt. of NCT of Delhi [(2006) 5 SCC 702], this
Court held:
"25. It is, however, difficult for us to accept the
contention of the learned Senior Counsel Mr Soli
J. Sorabjee that the doctrine of "legitimate
expectation" is attracted in the instant case.
Indisputably, the said doctrine is a source of
procedural or substantive right. (See R. v. North
and East Devon Health Authority, ex p Coughlan )
But, however, the relevance of application of the
said doctrine is as to whether the expectation was
legitimate. Such legitimate expectation was also
required to be determined keeping in view the
larger public interest. Claimants’ perceptions
would not be relevant therefor. The State actions
indisputably must be fair and reasonable. Non-
arbitrariness on its part is a significant facet in the
field of good governance. The discretion conferred
upon the State yet again cannot be exercised
whimsically or capriciously. But where a change in
the policy decision is valid in law, any action taken
pursuant thereto or in furtherance thereof, cannot
be invalidated."
We also fail to see any reason as to why the doctrine of promissory
estoppel will apply in the instant case.
41. Dr. Dhawan has laid strong emphasis on the doctrine of
proportionality and reasonableness, drawing sustenance from the dicta of
this Court laid down in Teri Oat Estates (P) Ltd. v. U.T., Chandigarh and
Others [(2004) 2 SCC 130], State of U.P. v. Sheo Shanker Lal Srivastava
and Others [(2006) 3 SCC 276] and Bombay Dyeing & Mfg. Co. Ltd. (3)
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(supra)]
Our attention has also been drawn to the following passage of Sir
William Wade’s Administrative Law, Ninth Edition, pages 371-372:
"Goodbye to Wednesbury?
The Wednesbury doctrine is now in terminal
decline, but the coup de grace has not yet fallen,
despite calls for it from very high authorities. Lord
Slynn said in the Alconbury case, with reference to
proportionality:
I consider that even without reference to the
Human Rights Act 1998 the time has come to
recognize that this principle is part of English
administrative law not only when judges are
dealing with Community acts but also when they
are dealing with acts subject to domestic law.
Trying to keep the Wednesbury principle and
proportionality in separate compartments seems to
me to be unnecessary and confusing.
and in the Daly case Lord Cooke said:
I think that the day will come when it will be more
widely recognized that Associated Provincial
Picture Houses Ltd v. Wednesbury Corpn was an
unfortunately retrogressive decision in English
administrative law, in so far as it suggested that
there are degrees of unreasonableness and that
only a very extreme degree can bring an
administrative decision within the legitimate scope
of judicial invalidation.
Although quoting and sympathizing with these
weighty opinions, and acknowledging that ’the
Wednesbury test is moving closer to
proportionality’, the Court of Appeal has held that
’it is not for this Court to perform the burial rites’.
That task must be left to the House of Lords, and
meanwhile the law as laid down by the House in
the Brind case, in which proportionality was
rejected as part of English law, must linger on.
Lord Irvine LC has suggested, in a human rights
context, that ’there is a pro-found difference
between the Convention margin of appreciation
and the common law test of rationality’, and has
raised the question, ’how long the courts will
restrict their review to a narrow Wednesbury
approach in non-Convention cases, if used to
inquiring more deeply in Convention cases?’ The
difference that he observes is in substance the
same as that detected by the House of Lords, and
his question is whether it will be eliminated by
’spill-over effect’ from human rights and EU law.
This is exactly the kind of convergence which
European influences are likely to bring about. It is
evident already in the numerous references to
proportionality which judges are making freely,
and which are paving the way for its general
acceptance."
We, with greatest respect, do not have any such problem. This Court
not only has noticed the development of law in this field but applied the
same also.
42. The fact that in some jurisdictions, doctrine of unreasonableness is
giving way to doctrine of proportionality is beyond any dispute. [See Indian
Airlines Ltd. v. Prabha D. Kanan, (2006) 11 SCC 67 and State of U.P. v.
Sheo Shanker Lal Srivastava and Others (2006) 3 SCC 276] But, the
development of law in this field could have been applied only if a case was
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made out. If the State is right in its contention that the selection process
being in cloud, no appointment can be made, the court by invoking any
doctrine cannot ask the State to do so unless it arrives at a positive and
definite finding that the State’s stand is fraught with arbitrariness. We do
not find any arbitrariness in its act.
43. It may be true that before the High Court the contention raised by the
State was not in regard to the pendency of the Vigilance Enquiry but lack of
vacancy, but it must also be noticed that the High Court itself despite
perusing the records maintained by the State has clearly arrived at a finding
that the enquiry by the State Vigilance Bureau had already been ordered, it
cannot be ignored. The High Court in fact proposed to adjourn the matter
sine die till the enquiry was completed, but the same was not acceptable to
the appellants.
44. Moreover, while embarking on a question of this nature, this Court
must take an overview of the entire scenario. It need not keep itself confined
to the stand of the State before the High Court alone. Even in a case where
the process of selection gives rise to a doubt in regard to the fairness on the
part of the selecting authorities, there need not be any categorical finding
that the selection process is vitiated. Such a question may have to be posed
and answered in an appropriate case.
45. There is another compelling reason why we think not to issue any
direction upon the state to order appointment of the appellants in the vacant
posts. Section 4 of the 2002 Act lays down that no appointment can be
made beyond the number of posts advertised or against the posts which were
not advertised. In terms of the aforementioned provision, therefore, any
vacancy which had arisen after the advertisement made in January, 2004 or
after abolition of posts on 13.05.2005, which had not been advertised, cannot
be offered to the appellants herein. The Government of Haryana also states
that 10 posts are kept vacant for unforeseen demands. It was further stated
that on 13.05.2005, 290 officers were holding posts against 230 sanctioned
posts. Thus, any vacancy which had arisen by reason of retirement or death
having regard to Section 4 of the 2002 Act is also not capable of being
offered to the appellants herein.
46. We must before parting, notice a disturbing feature in this case.
Whereas according to the Commission, the State has for all intent and
purport made it a defunct body although no case therefor has been made out,
the contention of the State, on the other hand, is that although in all the
maters allegations made by the complainant have been found to be true but
the enquiry cannot proceed as the Commission is not cooperating with the
State Vigilance Bureau. Indisputably and as has been indicated
hereinbefore, seven separate writ petitions were filed by unsuccessful
candidates. Various complaints had also been received by the State. Four
separate enquiries had been directed to be conducted by the State Vigilance
Bureau. Allegations have also, rightly or wrongly, been made that the
Commission had acted in undue haste. We although as at present advised do
not intend to make any observations in regard to the allegations and counter-
allegations made by the Commission and State against each other, we only
hope and trust that a constitutional authority like the Commission should
neither withhold any document nor refuse to cooperate with the State
Vigilance Bureau in the matter of conduct of an enquiry.
If the statements made by the Commission are correct, they have
nothing to hide. It would be in the interest of all concerned including the
appellants herein to see that the enquiry should be completed at an early
date.
We direct the State Government to take all steps in this behalf. We
would also request the Commission to render all cooperation to the
authorities of the State Vigilance Bureau.
47. For the reasons aforementioned, we are of the opinion that no case has
been made out for interference with the impugned judgment of the High
Court. The appeals are dismissed accordingly. However, in the facts and
circumstances of this case, there shall be no order as to costs.