CWP No.3584 OF 2008 etc. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 20 .5. 2011 1.CWP No.1197 of 2009 Niranjan Singh ...Petitioner VERSUS State of Haryana and others …Respondents 2.CWP No.3584 of 2008 Neha Yadav ...Petitioner VERSUS The State of Haryana and others …Respondents 3.CWP No.9738 of 2009 Sandeep Singh Sihag and others ...Petitioners VERSUS State of Haryana and others …Respondents 4.CWP No.271 of 2010 Baljinder Singh ...Petitioner VERSUS State of Haryana and others …Respondents CWP No.3584 OF 2008 etc. 2 5.CWP No.16118 of 2009 Pradeep Yadav ...Petitioner VERSUS State of Haryana and others …Respondents 6.CWP No.15455 of 2009 Sanjeev Tinjan ...Petitioner VERSUS State of Haryana and others …Respondents 7.CWP No.1822 of 2009 Arvind Kumar ...Petitioner VERSUS State of Haryana and others …Respondents 8.CWP No.20315 of 2008 Abhishek Goyal and others ...Petitioners VERSUS State of Haryana and others …Respondents 9.CWP No.21821 of 2008 Mukesh Yadav ...Petitioner VERSUS CWP No.3584 OF 2008 etc. 3 State of Haryana and others …Respondents 10.CWP No.1236 of 2009 Nitin Pratap Singh ...Petitioner VERSUS State of Haryana etc. …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Rajiv Atma Ram, Sr.Advocate with Mr.Nikhil Chopra, Advocate Mr.RK Malik, Sr.Advocate with Mr.Kohel Dev, Advocate Mr.JK Sibal, Sr.Advocate with Ms.Hanmeet Kaur, Advocate Mr.Puneet Gupta, Advocate Mr.Pankaj Jain, Advocate Mr.Jatin Salwan, Advocate Mr.Dheeraj Chawla, Advocate Mr.Puneet Gupta, Advocate Mr.Hakam Manuja, Advocate Mr.Karminder Singh, Advocate Mr.RKS Brar, Addl.A.G., Haryana with Mr.Amandeep Singh, AAG, Haryana Permod Kohli, J. Petitioners in all these petitions are Law Graduates. Reliefs claimed CWP No.3584 OF 2008 etc. 4 being identical, these petitions are being disposed of by this common judgment. Facts relevant for the purpose of these petitions are being noticed here-in-after:- High Court of Punjab and Haryana issued brochure in the year 2007 inviting applications for recruitment to Haryana Civil Service (Judicial Branch). This brochure contained all necessary and relevant details relating to qualifications, eligibility criteria, date for making applications, mode and method of selection, syllabus and other necessary conditions. These details are not being referred to, the same being not germane to the adjudication of the issues involved in these petitions. Apart from details referred to above, number of category-wise vacancies to be filled in through the process of selection are contained in the brochure. Since the number of vacancies is a relevant factor for the purpose of deciding these petitions, the same are being reproduced here under:- Available number of vacant posts : 34 Category-wise details are as under:- Sr.No. Category No. of Posts Remarks 1. General 16 2. Scheduled Castes of Haryana 9 Out of these, 2 vacancies are being advertised for the third time. 3. Backward Classes of Haryana 5 Inclusive of 2 carried forward vacancies, which are being advertised for the second time. 4. Ex-Servicemen of Haryana 1 CWP No.3584 OF 2008 etc. 5 Sr.No. Category No. of Posts Remarks 5. Physically handicapped 3 Including 2 carried forwards vacancies, which are being advertised for the third time. In case of non-availability of suitable candidates against any or both vacancies, then these vacancies will be filled up from amongst the suitable candidates belonging to the category of Ex- serviceman and further in case of non-availability of suitable candidate(s) belonging to the category of Ex-servicemen then these vacancies will be thrown upon to the general category, in terms of Government instructions contained in letter No.24/5/91-3GSIII dated 22.11.1991. It is also provided in the brochure that in addition to 34 vacant posts, 20 anticipated vacancies are being advertised, as per the judgment of the Hon'ble Supreme Court in Malik Mazhar Sultan vs. U.P. Public Service Commission and others, (2006) 9 Supreme Court Cases 507 and 2008 (XVII) SCC 703. Category-wise details of these vacancies are as under:- “ Sr.No. Category No. of posts 1. General 12 2. Scheduled Castes of Haryana 4 3. Backward Classes of Haryana 1 4. Ex-Servicemen of Haryana 2 5. Physically Handicapped (Ortho) of Haryana 1 It was also stipulated that number of vacancies may vary. Selection was to be made on the basis of (i) preliminary examination; (ii)Main examination; (iii)Viva-voce. It is admitted case of the CWP No.3584 OF 2008 etc. 6 parties that all the petitioners applied within stipulated period. After qualifying the preliminary examination, they were permitted to appear in the main examination and viva-voce vide notification dated 30.2.2008. Final result (general merit list) was issued on 13.2.2008 (Annexure P-7). Thereafter, on the basis of the recommendations made by the Selection Committee, appointments were made by the Government vide Memo dated 13.2.2008 (Annexure P-8). The petitioners could not be selected/appointed. Names of the appointees were accordingly entered in the concerned register maintained at High Court. The category wise status of the petitioners is as under:- Sr.No. Name of the petitioner CWP No. Category 1. Neha Yadav 3584 of 2008 Backward Class (one) 2. Niranjan Singh 1197 of 2009 General (one) 3. Sandeep Singh Sihag, Mohit Sondhi, Gagandeep Singh Garg 9738 of 2009 General (one) 4. Pradeep Yadav 16118 of 2009 General (one) 5. Sanjeev Tinjan 15455 of 2009 General (one) 6. Baljinder Singh 271 of 2010 General (one) 7. Arvind Kumar 1822 of 2009 General (one) 8. Abhishek Goyal, Neeraj Goyal, Nitin Mittal and Surender 20315 of 2008 General (four) 9. Mukesh Yadav 21821 of 2008 Backward Class (one) 10. Nitin Pratap Singh 1236 of 2009 General (one) Total: General: 12 B.C. : 2 In view of their non-selection, some of the petitioners claimed their selection and appointment by filing representations. However, receiving no CWP No.3584 OF 2008 etc. 7 response to such representations, these writ petitions have been filed claiming following reliefs:- “XXX XXX XXX (iii)issue a writ in the nature of mandamus directing the respondents to consider and appoint the petitioner as Civil Judge (Jr.Division) in the Haryana Civil Services (Judicial Branch) in pursuance to the selection conducted by it, the result of which has been declared vide Annexure P-6 with effect from 13.2.2008 when other similarly situated selected in the same process have been selected and appointed and grant all consequential reliefs that flow therefrom including seniority, pay fixation, arrears of pay along with interest etc.” The petitioners are claiming their selection/appointment on the following grounds:- (i)Out of six posts advertised for Backward Class, (5 actual + 1 anticipated) only three posts have been filled in the first instance vide notifications dated 13.2.2008 and 14.3.2008; (ii) 12 persons have been promoted on regular basis as Additional District Judges whereas five persons were appointed as Additional District Judges on ad hoc basis for the Fast Track Courts in Haryana whereas five notified vacancies from Scheduled Caste Category remain unfilled; 12+5+5=22 (iii)On 21.11.2007, 65 posts of Civil Judges (Jr.Division) were created by the respondents, which inter alia, includes six posts for Backward Class and 13 for Scheduled Caste candidates. (iv)As against 13 advertised vacancies for Scheduled Caste only five have CWP No.3584 OF 2008 etc. 8 been filled and remaining 9 vacancies could be utilised for appointment from the Backward Class category candidates, in view of the government instructions dated 17.8.1976, which, inter alia, provides for inter-changing of reserved category vacancies, in the event of non-availability of candidates from a particular reserved category. In this case, 9 Scheduled Caste category vacancies were to be utilized for appointment of Backward Class candidates due to non-availability of Scheduled Caste candidates. (v)Resignation of five appointees before 31.10.2008 and one candidate from Backward Class Category on 17.4.2009 (5+1=6). Resultant vacancies on account of resignation are also to be filled in on the basis of the same selection. It is contended on behalf of the petitioners that all the available posts are required to be filled in on the basis of select list dated 13.2.2008, in view of the Hon'ble Supreme Court judgment in the case of Malik Mazhar Sultan (supra). The petitioners have given the details of the vacancies filled in and available vacancies under various categories as under:- 1 2 3 4 “No.of Posts advertised Category Posts Filled by Balance vacant posts Selection ------------------------------------------------------------------------------------------- General Category =16+12= 28 Posts filled up = Balance Remaining vacant posts = (i) Posts advertised for Scheduled Caste (Annexure P-5 (9+4)): =13 Posts filled up: =5 Balance remaining vacant =8 (ii) Posts advertised for Backward Classes (Annexure P-5 (5+1)) =6 CWP No.3584 OF 2008 etc. 9 Posts filled up =3 Balance remaining vacant =3 (iii) Members of Scheduled Caste appointed in February, 2008 =5 Members of the Backward Class promoted in 2008 =3 (iv) Posts created on 21.11.2007 =65 General = Scheduled Caste Posts =13 Backward Class posts =6 Thus total number of vacancies available for members of the Scheduled Caste and Backward Classes are as under:- General = Scheduled Caste Category =26 Backward Class Category =12 Petitioner, namely, Neha Yadav in CWP No.3584 of 2008 submits that she is at Sr.No.10 in the list of Backward Class Category candidates and after appointment of three candidates from this category, she figures at Sr.No.7 next in the order of merit. It is stated that out of 54 advertised posts (34 actual and 20 anticipated), only 34 appointments have been made in the following manner:- General 23 Scheduled Caste 5 Backward Class 6 During the pendency of these petitions, various applications were made, in view of subsequent events. Accordingly, on the basis of the further CWP No.3584 OF 2008 etc. 10 information, additional affidavits have been filed on both the sides. On the basis of the additional information, five appointees resigned before 31.10.2008 and one Mr.Loveleen resigned on 17.4.2009. Their resignations have been accepted, as is evident from the affidavit dated 29.4.2008 filed by petitioner, Neha Yadav. It is further alleged that High Court decided to appoint one Mona Singh candidate, next in the order of merit vide decision of the Committee dated 14.7.2008 on the basis of her merit in the selection from General Category. On 5.2.2009, the High Court passed following interim order in CWP No.3584 of 2008:- “Adjourned to 26.2.2009. In the meantime two posts of HCS (Judicial) shall be kept vacant. It is further made clear that it would not be open to the respondents to take the plea of the select list having expired due to efflux of time.” There are four petitioners in CWP No.20315 of 2008, all from General Category. They are at Sr.Nos.42 to 45 in the merit list dated 13.2.2008. It is stated that General Category candidates upto merit no.40 already stands appointed and Mona Singh who was next in the merit at Sr.No.41 also stands appointed. One candidate, namely, Arvind Kumar in CWP No.1822 of 2009 belongs to General Category and figures at Sr.No.50 in the merit list. It is alleged that candidates from Sr.Nos.42 to 45 are writ petitioners in CWP No.20315 of 2008 whereas candidate at Sr.No.46 has not approached the Court. Candidate at Sr.No.47 has joined Punjab Civil Services (Judicial Branch) whereas candidates at Sr.Nos.48 and 49 belonging to Backward Class Category stand appointed vide subsequent notification dated 14.3.2008 and this petitioner is next in the merit in CWP No.3584 OF 2008 etc. 11 General Category. Petitioner, Pradeep Yadav in CWP No.16118 of 2009 who also belongs to General Category falls at Sr.No.63 in the merit list. In CWP No.9738 of 2009, there are three petitioners, namely, Sandeep Singh, Mohit Sondhi and Gagandeep Singh belonging to General Category. They stand at Sr.Nos.432, 267 and 128 respectively in the final result (not the merit list). Petitioner Niranjan Singh in CWP No.1197 of 2009 belonging to General Category is at Sr.No.79 in the merit list. Petitioner Mukesh Yadav in CWP No.21821 of 2008 belonging to BC Category is at Sr.No.11. Petitioner Baljinder Singh in CWP No.271 of 2010 belonging to General Category is at Sr.No.47 in the final select list. Petitioner Sanjeev Tinjan is General Category candidate. His merit position is not reflected. Recruitment to the HCS Judicial Service is governed and regulated by statutory rules, namely, Punjab Civil Services (Judicial Branch), Haryana Rules, 1951 including the amendments made by the State of Haryana. By virtue of an amendment notification dated 23.3.2007, Punjab Civil Services (Judicial Branch) Rules 1951 were amended. 34 posts of Civil Judges (Jr.Division) lying vacant were to be filled up through special recruitment on the recommendations of the Selection Committee constituted for the purpose. The Selection Committee was constituted under the rules comprising of: (i) three Judges of the High Court of Punjab and Haryana nominated by the Hon'ble the Chief Justice, of whom the senior most has to be the chairman; (ii) the Chief Secretary to Government of Haryana and (iii) the Advocate General, Haryana and four legal remembrancers and Secretaries to Government of Haryana and Legislative Department. All other provisions in the existing rule regarding eligibility, age, educational qualifications, conduct of examination etc. were to remain same. Part B of CWP No.3584 OF 2008 etc. 12 the original rules deal with the submission of applications whereas Part C deals with the examination of candidates. Rule 8 of Part D was amended pursuant to the judgment of the Hon'ble Supreme Court in Malik Mazhar Sultan (supra). Amended Rule reads as under:- 5.In the said said Rules, in part D- (i)for rule 1, the following rule shall be substituted, namely- “1.The names of candidates selected by Government for appointment as Civil Judges (Junior Division), under rule 10 and 11 of the Part C shall be entered in the High Court Register in the order of selection to the extent of 30% more than the advertised vacancies, so as to meet any contingency for the advertised post remaining unfilled for any reason.” (ii)rule 8 shall be omitted. Separate replies have been filed by the State and on behalf of the High Court. While admitting the vacancies notified through the brochure and creation of 65 vacancies during the pendency of the writ petitions, the only contention raised by the State is that all unfilled vacancies on completion of the selection process and occurring/created after advertisement are to be advertised again to enable all eligible candidates to apply and seek their consideration for appointment. It is further stated that the grievance made by the petitioners has no legal basis. High Court also filed a short affidavit. One of the pleas raised is that vacancies more than the advertised number cannot be filled. To support this contention, learned counsel for the State relies upon the judgment in Virender Singh Hooda and others vs. State of Haryana and another 2005(1) RSJ 70. Affidavit filed on behalf of the High Court reveals that out of 54 advertised vacancies (34+20), 53 stand CWP No.3584 OF 2008 etc. 13 filed up and one post has been reserved which is subject matter of CWP No.15130 of 2007. Referring to the judgment of Hon'ble Apex Court in Malik Mazhar Sultan (supra), the stand of the High Court is that in compliance with the orders of the Supreme Court, 20 anticipated vacancies were advertised and have also been filled up. Further stand of the High Court is that mere selection does not create a right in favour of the petitioners. Due to certain ambiguities regarding the vacancy position, which, inter alia, also includes the new creations, resignations and fresh appointments etc., this Court passed an order dated 3.9.2009 seeking information from the High Court in respect of the points indicated therein, the same shall be referred to here-in-after. Pursuant to the aforesaid directions, the High Court filed affidavit dated 18.9.2009 of Virinder Aggarwal, Registrar (Rules), Punjab and Haryana High Court, point wise reply contained in the affidavit is as follows:- Point (i)category-wise vacancy position on the date of issuance of fresh advertisement dated 14.9.2008 for Haryana PCS (Judicial) General 42 Scheduled Caste 39+(3) 24 23+1 Backward Class 02 Ex-serviceman 06 Physically handicapped (Ortho) 04 Total 78 74+4 CWP No.3584 OF 2008 etc. 14 Point (ii)whether any unfilled vacancy from the earlier selection arising out of advertisement notification dated 23.3.2007 was included in the fresh advertisement, if so, the number of such vacancies with category-wise break-up; No unfilled vacancy arising out of advertisement notification dated 23.3.2007 was included in the fresh advertisement dated 14.9.2008. Point No.(iii)after filling 54 advertised vacancies, whether any vacancy became available as dropped out vacancy on account of abandoning or resignation, if so, number of such vacancies with category-wise break up One General Category vacancy accrued on account of joining of Shri Sushant Changotra in the cadre of PCS (JB) on 3.6.2008, 8 more candidates also resigned from the post of Civil Juge (Jr.Divn.) in the cadre of HCS (JB), which are as follows:- Sr.No. Name of the candidates S/Shri/Ms. Category belongs to Date of acceptance of resignation by the Haryana Govt. 1. Parshant Sharma General 24.10.2008 2. Jatindra Singh General 24.10.2008 3. Monika Saroha General 24.10.2008 4. Chetna Singh General 24.10.2008 5. Lovleen BC 28.4.2009 6. Gomati Manocha General 28.4.2009 7. Ekta Gauba General 20.7.2009 CWP No.3584 OF 2008 etc. 15 Sr.No. Name of the candidates S/Shri/Ms. Category belongs to Date of acceptance of resignation by the Haryana Govt. 8. Dheeraj Mor General 3.9.2009 Point No.(iv)whether the vacancies mentioned in paragraph (iii) above were filled up, the manner and dates of appointment with details of the candidates and the categories to which they belong Pursuant to the decision of the selection and appointment Committee of the High Court dated 28.8.2008, Ms. Mona Singh at Sr.No.41 of the select list of HCS (JB) from the General Category was appointed by the Haryana Government on 17.7.2009. Point No.(v)whether 65 additional vacancies created during the pendency of the first selection initiated in the year 2007 were notified for fresh selection vide advertisement dated 14.9.2008, category-wise details thereof. 65 Posts of Civil Judge (Jr.Division) were created by the Haryana Government vide letter dated 21.11.2007. These posts were notified in the fresh advertisement dated 14.9.2008. Category wise break up of these vacancies Category Number of Posts General 41 Scheduled Caste (20%) 13 Backward Class (10%) 06 Ex-serviceman (05%) 03 Physically Handicapped (Ortho.) (03%) 02 CWP No.3584 OF 2008 etc. 16 Category Number of Posts Total 65 Point No.VI Retire- ment Promotions from 23.3.2007 to 14.9.2008: Promotions After 14.9.2008 Death Resignation (vi)vacancies accruing due to retirement, promotion, death, resignation etc. after the completion of the process of selection initiated vide Notification dated 23.2.2007 (category wise) NIL Total 16 General- 9 S.C.- 3 BC - 2 G- 6 SC 4 BC 3 One vacancy due to the death of Ajay Kumar Aggarwal on 14.5.2008 General Category 9 G 8 BC 1 In the affidavit of Mr.Aggarwal, the number of vacancies becoming available were not specified clearly, though details of promotions were given. Thus vide order dated 12.10.2010, a further direction was issued to the High Court to file fresh affidavit giving details of the vacancies becoming available on account of promotion, retirement, resignation and death of HCS (Judicial Branch) between the date of advertisement dated 23.3.2007 to 6.8.2009, date of issuance of next select list. In response to this direction, an additional affidavit has been filed by Joint Registrar-cum- OSD, Punjab and Haryana High Court with the following details of the vacancies during the aforesaid period as under:- Sr.No. Vacancies became available Number of vacancies 1. On account of promotion of HCS (JB Officers) 35 CWP No.3584 OF 2008 etc. 17 Sr.No. Vacancies became available Number of vacancies 2. Due to resignation of HCS (JB) Officers 10 3. Due to death of HCS (JB) officers 01 4. Due to voluntary/premature retirement 01 It has come on record in the affidavit of Government of Haryana filed in CWP No.1197 of 2009 that all the 54 vacancies notified vide advertisement issued in the year 2007 have been filled up in two phases i.e. 13.2.2008 and 14.3.2008 in the following manner:- Category Vacancy shown in the advertiseme nts Actual vacancies that were available on reconciliation with the data made available by the Hon'ble High Court Posts filled up in the first phase i.e. 13.2.2008 Posts filled up in the second phase i.e. 14.3.2008 Total (1) (2) (3) (4) (5) (6) General 28 29 23 17 40 Scheduled Castes 13 11 5 - 5 Backward Classes 6 9 3 6 9 Ex- servicemen 3 2 - - - Physically handicappe d persons 4 3 - - - Total 54 54 31 23 54 Result of 2007 advertisement was declared on 13.2.2008 whereas the result of subsequent selection for which advertisement was issued on 14.9.2008 was declared on 1.7.2009 and the select list notified on 6.8.2009. The entire argument of the petitioner is based upon judgment of CWP No.3584 OF 2008 etc. 18 Malik Mazhar Sultan (supra). While considering the eligibility of the appointees to Judicial service in the State of UP, Hon'ble Supreme Court issued certain general directions to all the State Governments, U.Ts and the High Courts. These directions are contained in paragraph 23 of the judgment which reads as under:- “23.It is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of Judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that system works automatically and there is no delay in filling up of vacancies. The dates for taking these steps can be provided for on the pattern similar to filling of vacancies in some other services or filling of seats for admission in medical colleges. The schedule appended to the Regulations governing medical admissions sets out a time schedule for every step to be strictly adhered to every year. The exception can be provided for where sufficient number of vacancies do not occur in a given year. The adherence to strict time schedule can ensure timely filling of vacancies. All State Governments, Union Territories and/or High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled. All State Governments, Union Territories and High Courts are directed to file within three months details of the time schedule so fixed and date from which time schedule so fixed would be CWP No.3584 OF 2008 etc. 19 operational.” In response to the directions contained here-in-above, some of the State Governments/High Courts made responses/suggestions. Taking note of such suggestions, the Hon'ble Supreme Court in Malik Mazhar Sultan-2 (supra) issued various directions by fixing time schedule for appointments/promotions, holding the examinations etc. at different levels in the hierarchy of subordinate judicial service in respect of the High Courts/UTs. For the purpose of the present writ petition, directions in respect of appointment to the post of civil Judge (Jr.Division) only relevant. Such directions contained in paragraphs 14 and 15 which are reproduced as here under:- “14.The select list prepared for all categories of officials shall be valid till the next select list is published. 15.We further direct that ten percent of unforeseen vacancies would be in respect of sanctioned posts and not vacancies occurring in a particular year.” Apart from above judgments, petitioners have also referred to various other judgments to support their contention that the merit list prepared by the Selection Committee survives till the next selection and the candidates next in the merit are required to be appointed from the select list. In the case of Gujarat State Dy. Executive Engineers' Association v. State of Gujarat, 1994(3) SCT, the Hon'ble Supreme Court posed three questions- (i) what is waiting list; (ii)can it be treated as a source of recruitment from which candidates may be drawn as and when necessary and (iii)how long can it operate? Answering the first question, Hon'ble Supreme Court observed as CWP No.3584 OF 2008 etc. 20 under:- “8.A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate...” In respect of question no.(ii), it has been observed as under:- “9.A