IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1. CWP. No. 3429 of 2009 Date of Decision: 3.8.2010. Dharma Singh and others --Petitioners Versus State of Haryana and another --Respondents 2. CWP. No. 53 of 2009 Darshan Singh and others --Petitioners Versus State of Haryana and another --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Rajiv Atma Ram, Sr. Advocate with Mr. Vikas Kuthiala, Advocate. Mr. R.S. Mittal, Sr. Advocate with Mr. Sudhir Mittal, Advocate and Mr. Atul Gaur, Advocate. Mr. R.S. Kundu, Addl. A.G., Haryana. *** PERMOD KOHLI.J (ORAL) The present petitions are 5th in the series of litigation arising out of selection of Clerks made in the year 1999. It is essential to notice the factual background leading to the filing of the present petitions. Since the facts and law points involved are common, both these petitions were heard and are being disposed of by this common order. The Service Selection Board, Haryana issued Advertisement No.4 of 1987 dated 22.7.1987 inviting applications for recruitment of Clerks for various departments of the State of Haryana. Petitioners in these petitions applied in response to the said advertisement. It is positive case of the petitioners that their names were included in the merit list dated CWP. No. 3429 of 2009 -2- 15.10.1989, wherein total number of 5373 candidates were selected. The State of Haryana appointed candidates up to merit no. 4645. It is alleged that petitioners' merit in the select list was above the last appointee at merit no.4645 but despite of that they were denied appointments by adopting pick and choose policy in a total malafide and illegal manner. The petitioners, accordingly, filed CWP No. 8187 of 1990 titled as Sudesh Kumari Vs. State of Haryana. This writ petition was allowed by a Division Bench of this Court. The Judgement of the Division Bench is reported as 1991 (1) SCT 322. While allowing the writ petition following directions were issued:- “ 6. By directing the Board at this stage to recommend the names of the petitioners and other similarly situated person who are higher in merit and whose names have been received back from the departments as they could not be appointed, would at this juncture disturb the persons who have already been appointed in the other departments, who are though lower in merit. We would not like to disturb such person who have been appointed in the other departments who are lower in merit. Under the circumstances, we direct that from now onwards whenever a requisition is received from any department for filling the posts of Clerks, all persons who are higher in merit as compared to the last person who might have been appointed, the selection list prepared on 15th October, 1989 would not lapse irrespective of any instructions to the contrary issued by the State of Haryana, if, any.” This judgement attained finality in absence of any challenge to the same. In the meantime, another writ petition Bijender Singh and others Vs. State of Haryana and others came to be filed before this Court CWP. No. 3429 of 2009 -3- seeking quashment of the waiting list of Clerks out of the select list dated 15.10.1989. The State in reply to the aforesaid writ petition referred to the judgement in Sudesh Kumari's case. The bench hearing the Bijender Singh's case referred the matter to a Larger Bench. A Full Bench of this Court in Bijender Singh's case reported as 1994 (4) SCT 382 while disagreeing with the directions in Sudesh Kumari's case regarding the survival of the list issued following directions:- “ 19. Having considered the matter and keeping in view the peculiar facts of this case, we hold that (i) The Selection Board cannot make the selection in excess of the number of posts for which a requisition has been placed before it. The waiting list prepared by the Board has to be confined to the number prescribed by the Govt. (ii) The selected candidates do not have any idefeasible right to be appointed to the posts for which they have been selected. (iii) The directions given by the bench in Sudesh Kumari's case particularly to the effect that the selection list prepared on October 15, 1989 would not lapse are not in conformity with law. (iv) The respondent-State of Haryana would examine the cases of persons, who were appointed even though they had not attained the requisite percentage of marks for inclusion in the merit list and were not within the number of posts for which a requisition had been sent to the Board. It would pass orders in accordance with law. (v) The list prepared by the Board on October 15, 1989 was valid for a period of one year. If, a candidate whose name appeared upto Sr. No. 662 has not been appointed so far, the State shall consider his claim and appoint him. All vacancies arising from October 15, 1990 onwards shall be re-advertised and recruitment against those vacancies shall be made from amongst the selected candidates.” The Board did not recommend any name out of the select list of 15.10.1989 and issued another Advertisement No. 9 of 1995 dated 19.11.1995 to fill up the available posts of Clerks. It appears that the Full CWP. No. 3429 of 2009 -4- Bench judgement in Bijender Singh's case was challenged before the Hon'ble Supreme Court in various appeals. In case of Roshni Devi Vs. State of Haryana, appeals were decided vide judgement dated 18.9.1998. The Hon'ble Supreme Court modified the Full Bench judgement of this Court in Bijender Singh's case with the following directions:- “ We issue the following directions in substitution of the directions made by the High Court in the impugned judgement. (1) The appointments already made from out of the list prepared on 15.10.1989 will not be annulled. (2) The last person who is stated to have been appointed being at Sr. No. 4645 persons occupying higher position than him could be considered for appointment to the post of Clerk if there exists any vacancy for them. (3) The vacancy in this context would mean the vacancies wich were available in the State of Haryana prior to the advertisement issued for selecting persons for the said post for the year 1995. It is to be made clear that if no vacancies exist on the aforesaid date, then no further appointment would be made from out of the list prepared on 15.10.1989 notwithstanding the directions of the Punjab and Haryana High Court in Sudesh Kumari's case. (4) If vacancies did exist on the date as aforementioned, then the appointments from out of the list prepared on 15.10.1989 could be made strictly on the basis of their merit position in the list. (5) We strongly deprecate the practice of selecting and preparing an unusually large list compared to the vacancy position and the State Govt. should either amend the recruitment rules in that respect and till then should issue positive administrative instructions giving the right to the Selection Board to select only some persons in excess than the requisition for which the Board is going to select people. (6) We also do not approve of the inaction on the part of the State Govt. in not assailing the judgement of the Punjab & Haryana High Court in Sudesh Kumari's case and now coming up before us making submissions that the judgement is practically incapable of being implemented.” It appears that the directions of the Hon'ble Apex Court were not implemented forcing the petitioners to file a Contempt Petition No. 203 CWP. No. 3429 of 2009 -5- of 1999 titled as Sita Ram Vs. R.S. Verma & another before the Hon'ble Supreme Court. In response to the contempt notice the then Chief Secretary to the Govt. of Haryana filed an affidavit stating therein that as many as 145 vacancies pertaining to the period between 15.10.1989 to 18.11.1995 were ascertained. The vacancies were intimated to the Board. It is further stated in the said affidavit that 92 candidates were recommended for appointment as Clerks in various departments against the select list dated 15.10.1989 in accordance with the merit in respective categories. The affidavit further discloses that names against 25 vacancies could not be recommended owing to non-availability of candidates possessing higher qualifications meant for A Class Offices. Similarly, vacancies belonging to ex-service man category numbering 28 could not be filled up due to non-availability of the category candidates. In the meantime, another Contempt Petition No. 4902 of 1998 titled as Sheila Devi and others Vs. Vishnu Bhagwan & others came to be filed by 43 of the present petitioners. The contempt petition was disposed of with liberty to approach the appropriate forum vide order dated 15.12.2000 passed by the Hon'ble Supreme Court. The present petitioners who were not appointed under any of the categories filed another writ petition being CWP No. 2391 of 2001 titled as Ramesh Chand and others Vs. State of Haryana and others. This writ petition was decided vide judgement dated 14.3.2002 with the following directions:- “ As this Court has already dealt with the matter and in order dated 11.12.2001 the Hon'ble Judge has clearly stated that he is prima facie satisfied that the writ petition is indefensible and the petition has to be allowed. Thus, there is nothing left for discussion in this petition. The writ petition is allowed as per the judgement of the Hon'ble Apex Court and in CWP. No. 3429 of 2009 -6- view of the order of this Court dated 11.12.2001, the respondents are directed to comply with the orders of the Hon'ble Apex Court in Roshani Devi's case dated 18.9.1998 in letter and spirit. With the above observations, the writ petition is disposed of accordingly.” In the meantime, the petitioners filed a mercy petition before the Governor of Haryana on 28.3.2003 praying for their appointment against the posts of Clerks on the basis of their selection. Office of the Governor of Haryana passed the following order:- “ 5. HE, the Governor today i.e. 29.6.2004 has desired that Chief Secretary to Govt. Haryana be asked to appoint/absorb all the 43 mercy petitioners on humanitarian grounds against the vacancies in Govt. departments or in surplus pool of the Govt. 6. As desired “X” above is submitted to HE, the Governor for confirmation/approval. Sd/- DSRB 29.6.2004 HE Governor Approved Sd/-1/7 SD/-1.7.2004” It is stated that even the order of the Governor was not implemented by the State. The successor in the office of the Governor, however, reviewed the aforementioned order and passed the following order:- CWP. No. 3429 of 2009 -7- “ It would not be a stand alone decision to offer appointment to these 43 applicants as thousands of applicants placed senior to them in the select list would to demand a similar relief and this would invite a spate of similar requests opening a Pandora's box resulting in severe legal complications for the State.” Present petitions have been filed challenging the order dated 2.8.2004 passed by the Governor of Haryana rejecting the mercy petition in review. The petitioners have further sought directions for their appointment in implementation of the judgement of the Hon'ble Apex Court. The petitions are being resisted and seriously opposed by the State of Haryana, while admitting the sequence of events and directions issued by the Court from time to time. The stand of the respondents is that there are no vacancies available to accommodate the petitioners in the light of the judgement of the Hon'ble Supreme Court in Roshni Devi's case. The State-respondent has further admitted that the recommendations of the Board were not in accordance with the merit prepared by the Board and the recommendees were much beyond the number of posts available with the departments. It is also admitted position that some of the recommendees were at the bottom of the select list ignoring many amongst 1st 100 meritorious candidates. An additional affidavit dated 14.12.2009 has been filed on behalf of the State. The details of 145 vacancies identified during the period specified by the Hon'ble Supreme Court in Roshni Devi's case has been given in the following manner:- CWP. No. 3429 of 2009 -8- “ Gen. SC BC ESM Total A-Class 27 10 7 13 65 B-Class 26 26 13 15 80 ----------------- Total:- 145 ------------------” It is further stated that 22 vacancies out of 145 conveyed by the Deputy Commissioner, Bhiwani were not available same having been filled up during the period from 15.9.1989 to 30.11.1995. The Deputy Commissioner, Bhiwani vide letters dated 2.10.1999 and 25.6.2001 clarified that these 22 vacancies were shown to be existing due to mistake. The affidavit further states that 1992 candidates were recommended for appointment merit wise in September, 1999 and after 1992 recommendees 31 vacancies remained of A Class Offices for which higher qualification was required. The affidavit further states that in view of the directions in Ramesh Chander's case (CWP No. to be taken from page 76) no distinction could be made between A Class and B Class Offices and accordingly 31 balance vacancies were also recommended in September, 2002 category wise. It is stated that excluding 22 vacancies wrongly shown to be available by the office of Deputy Commissioner, Bhiwani, 111 vacancies already stand recommended, though, 12 vacancies relating to ESM category remained vacant for non-availability of this category of candidates. It is finally stated that no vacancy is available in terms of the directions in Roshni Devi's case. In the affidavit merit position of the petitioners is also indicated. From the disclosure made, it is evident that all the writ petitioners have merit higher than the last selectee at 4645. The respondents have also placed on record the names of the appointees, who were appointed pursuant to the directions in Roshni Devi's case against the available CWP. No. 3429 of 2009 -9- vacancies. I have heard learned counsel for the parties at length. Following questions need to be determined:- 1. Validity of the order of Governor in review. 2. The enforceability of the order of Governor dated 29.6.2004. 3. Implementation of the directions of the Hon'ble Apex Court in Roshni Devi's case. Order of the Governor dated 2.8.2004 asking the Chief Secretary to appoint 43 writ petitioners has been recalled by subsequent order dated 2.8.2004 by the successor incumbent in the office. It is argued that a successor cannot review the order. To support their contentions, reliance is placed upon a judgement of the Privy Council reported as AIR 1937 Privy Council 27, titled as R.T. Rangachari Vs. Secretary of State, wherein it has been held as under:- “ In these circumstances, the case becomes a case in which after Govt. officials duly competent and duly authorized in that behalf have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision.” Following the aforesaid decision a Division Bench of this Court in 1992 (2) PLR 53 held that the decision once taken by a competent authority could not be reconsidered and recalled without affording an opportunity of being heard. The State-respondent has taken a stand that the order dated 29.6.2001 was never communicated to the State and it was under this scenario that the Chief Minister of the State also subsequently passed order CWP. No. 3429 of 2009 -10- dated 29.9.2008 agreeing with the subsequent order of Governor dated 22.8.2004 which order is also under challenge in the present petition. Assuming the order of the Governor dated 2.8.2004 is not according to law, suffering from violation of the principles of natural justice and want of valid reasons. The obvious result would be the revival of the order dated 29.6.2004. Thus, the 2nd question which falls for consideration is the enforceability of the order dated 29.6.2004. Vide order dated 29.6.2004 the then Governor only accepted the mercy petition and asked the Chief Secretary to adjust the 43 petitioners against the future vacancies. This order was nothing more than an administrative order. Its enforceability through the Mandamus in exercise of jurisdiction under Article 226 is a doubtful proposition. The order came to be passed without determining the merit position of the 43 petitioners irrespective of their category and without ascertaining the vacancy position. It would not be incorrect to say that perhaps the order may be in contravention to the judicial directions issued in Roshni Devi's case. Under such circumstances, even if, the orders of the Governor passed in review and that of the Chief Minister dated 29.9.2008 are set aside, the 1st order of the Governor dated 29.6.2004 is not enforceable by Mandamus. Such a Mandamus could be contrary to law. Now the only question remains to be decided in these petitions is the right of the petitioners for appointment against the vacancies in terms of the directions of the Hon'ble Supreme Court in Roshni Devi's case. The then Chief Secretary had indicated 145 vacancies identified during the period 15.9.1989 to 30.11.1995 in his affidavit dated 30.0.1999 filed before the Hon'ble Supreme Court in Contempt Petition No. 203 of 1999. CWP. No. 3429 of 2009 -11- However, in the subsequent affidavit dated 14.11.2009 filed by Mr. M.L. Kaushik, Joint Secretary to Govt. Haryana before this Court in CWP No. 53 of 2009, it has been finally admitted that 12 vacancies relating to ESM category remained vacant due to non-availability of the candidates belonging to this category. It has also been brought on record that none of the petitioners belong to ESM category. Most of them are from general and B.C category and one from S.C category. I have perused the directions in Roshni Devi's case. There was no direction to make appointment category wise. Assuming the category wise merit is to be adhered to, admittedly, no candidate in E.S.M category is available and 12 vacancies are still lying vacant out of the identified vacancies. There is no prohibition for dereservation of these vacancies. Admittedly, the petitioners have had higher merit than a number of appointees. Directions in Roshni Devi's case were primarily on account of violation of the merit position. At least these 12 vacancies could be filled by granting appointment to the petitioners on the basis of their inter se merit in the total merit list. These petitions are, accordingly, disposed of with a direction to the respondents to appoint the petitioners against 12 E.S.M category vacancies on the basis of their inter se merit from the merit list dated 15.10.1989. The first 12 meritorious petitioners would be appointed against these vacancies irrespective of the category within a period of two months. Copy of this judgement/order be placed on each connected file. (PERMOD KOHLI) JUDGE 3.8.2010. lucky Whether to be reported? Yes.