1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 12 .10.2006 1. Amended C.W.P.NO 6099 of 2005 Mohinder Singh ...Petitioner Versus State of Haryana and another ...Respondents. 2. CWP No.5437 of 2005 Jitender Kumar and others ...Petitioners Versus The State of Haryana and another ...Respondents. 3. Amended CWP No.2839 of 2005 Deepak Dahiya and others ...Petitioners Versus The State of Haryana and others ...Respondents. 4. CWP No.14371 of 2005 Lokesh Kumar and others ...Petitioners Versus The State of Haryana and another ...Respondents. 5. CWP No.6258 of 2005 Neeraj Kumar ...Petitioners Versus The State of Haryana and others ...Respondents. 6. CWP No.7683 of 2005 2 Ramesh Kumar ...Petitioner Versus The State of Haryana and another ...Respondents. 7. CWP No.14317 of 2005 Suman Lata ...Petitioner Versus The State of Haryana and another ...Respondents. 8. CWP No.4818 of 2005 Vandana Goel ...Petitioners Versus The State of Haryana and another ...Respondents. 9. CWP No.14370 of 2005 Priyanka ...Petitioners Versus The State of Haryana and others ...Respondents. 10. CWP No.16951 of 2005 Neha Bansal ...Petitioner Versus State of Haryana and others ...Respondents. 11. CWP No.18572 of 2005 Sandeep Aggarwal and others ...Petitioners Versus The State of Haryana and another ...Respondents. 12. CWP No.4457 of 2005 Devinder Singh ...Petitioners 3 Versus The State of Haryana and others ...Respondents. 13. CWP No.12540 of 2005 Rajiv Parshad and another ...Petitioners Versus The State of Haryana and others ...Respondents. 14. Amended CWP No.3768 of 2005 Subhash Chander and others ...Petitioners Versus The State of Haryana and others ...Respondents. 15 Amended CWP No.2897 of 2005 Chandi Ram and others ...Petitioners Versus The State of Haryana and others ...Respondents. CORAM: HON'BLE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE S.S.SARON PRESENT: Mr.Jaspal Singh, Sr.Advocate with Mr.J.S.Duhan, Advocate Mr.G.K.Chatrath, Sr.Advocate with Ms. Alka Chatrath, Advocate Mr.Rajiv Atma Ram, Sr.Advocate with Mr.Hemraj Mittal, Advocate Mr.P.S.Patwalia,Sr.Advocate with Mr.D.S.Patwalia, Advocate Mr.R.K.Malik, Advocate and Mr.Vivek Sharma, Advocate Mr.Jagbir Malik, Advocate Mr.Y.P.Malik, Advocate Mr.Vivek Suri, Advocate 4 Mr.Sandeep Kotla,Advocate Mr.G.P.Singh,Advocate Mr C.B.Goel, Advocate Mr.G.S.Bajwa,Advocate Mr.G.P.Singh,Advocate Mr.Hari Om Attri, Advocate for the petitioners. Mr.H.S.Hooda, Advocate General, Haryana with Mr.M.L.Saggar, Addl.A.G., Haryana and Ms. Palika Monga, AAG, Haryana for the respondents-State. Mr.H.N.Mehtani,Advocate for the respondent-Haryana Public Service Commission ... S.S.Nijjar, ACJ On the request of the counsel for the petitioners, these writ petitions (CWP Nos.6099, 5437, 2839, 14371, 6258, 7683, 14317, 4818, 14370, 16951, 18572, 4457, 12540, 3768, 2897 of 2005) are taken up for final disposal, at the motion stage. This common judgment will dispose of all the aforesaid writ petitions, as the facts as well as the legal issues are identical in all the writ petitions. The petitioners seek the issuance of a writ in the nature of Mandamus directing the respondents to issue appointment letters to them as they have all been duly selected to the Haryana Civil Services (Executive Branch) (hereinafter referred to as the “HCS (EB)”) and/or to the Allied Services, pursuant to the result declared by the Haryana Public Service Commission- respondent no.2 (hereinafter referred to as “the Commission”) on 30.12.2004. The petitioners also pray for the issuance of a writ in the nature of certiorari quashing the Notification dated 13.5.2005 (Annexure P-1) issued by the State of Haryana-respondent no.1 whereby the cadre strength of the Haryana Civil Services (Executive Branch) has been reduced from 5 300 to 230. We may notice at the threshold the essential facts culled out from the pleadings, which are relevant for the adjudication of the controversy raised in these writ petitions. The petitioners claim that they had applied in response to an advertisement issued by respondents no.1 and 2 on 24.1.2004, for filling up 102 posts in the HCS (EB) and Allied Services. The recruitment, appointment and conditions of service of the HCS (EB) is governed by the Punjab Civil Services (Executive Branch) Rules, 1930, as applicable to the State of Haryana (hereinafter referred to as “the 1930 Rules”). The appointments to the service are made on the recommendations of the Commission. The selection process consisted of written examination followed by interview. The procedure for selection and appointment is contained in the Schedule attached to the statutory rules known as Punjab Civil Services (Executive Branch) Haryana Amendment Rules, 2002 (hereinafter referred to as “2002 Rules”). The advertisement dated 24.1.2004 and the subsequent selection process was conducted in accordance with the Schedule mentioned in Rule 9 of the aforesaid 2002 Rules. The preliminary examination was held on 23.5.2004. The main written examination was held from 1.8.2004 to 10.8.2004. The result of the main written examination was declared on 7.12.2004. Interviews were held from 15.12.2004 to 18.12.2004. The result was declared on 30.12.2004. As noticed earlier, all the petitioners were declared to have been duly selected. They were, therefore, awaiting appointment orders when the Election Commission of India (hereinafter referred to as “the Election Commission”) announced the elections to the Legislative Assembly in the State of Haryana 6 on 17.12.2004. Polling was to be conducted on 3.2.2005. The Election Commission also issued a Notification dated 17.12.2004, enforcing the Model Code of Conduct which was to be observed during the period of election. Clause 3 (d) of the Model Code of Conduct provided that from the date elections are announced by the Election Commission, ministers and other authorities shall not make any ad hoc appointments in Government, Public Undertakings etc. which may have the effect of influencing the voters in favour of the party in power. Clause 4 of the Notification banned the transfer of officers/officials connected with the conduct of the elections, in a number of departments. It was further provided in Clause 4 (vi) that the ban shall be effective till the completion of elections. On 23.12.2004, the Election Commission issued another letter to the Chief Secretary of the Government with the following directions:- “.....The Commission has therefore directed that the State Government shall not issue appointment letters to the selected candidates without the permission of the Commission so long as the model code of conduct is in operation. The Commission further directs that this directive of the Commission be implemented immediately and a compliance report sent by return fax. Yours faithfully sd/-K.Ajaya Kumar, Secretary.” This letter was followed by another letter to the Chief Secretary dated 27.12.2004, in which the following directions were issued:- “.... I have been directed by the Commission to clarify 7 that the ban on appointments imposed by the Commission is equally applicable to the candidates selected by the Haryana Public Service Commission and/or by any other agency in the State. Accordingly, the Commission hereby directs that the State Govt. shall not offer appointments to candidates selected by the Haryana Public Service Commission or any other recruiting agency including the Ministries and Departments without the prior permission of the Commission till the completion of the elections in the State. Appropriate instructions to this effect may be issued to all concerned immediately.” After the issuance of these instructions, the State of Haryana did not offer appointments to the selected candidates. The petitioners approached this Court by filing writ petitions challenging the instructions issued by the Election Commission. During the pendency of these writ petitions, the State of Haryana issued Notification dated 13.5.2005 whereby the cadre strength of the service has been reduced from 300 to 230 posts. The petitioners allege that the aforesaid exercise has been conducted only to defeat their claim. Thus, the writ petitions have been amended and the Notification dated 13.5.2005 has also been challenged. All the learned counsel for the petitioners have argued in unison that the respondents have illegally and arbitrarily reduced the cadre strength from 300 to 230. The reduction in cadre strength has been made in violation of 1930 Rules. The procedure prescribed under Rule 3 has not been followed. The Cadre Review Committee has not been formed. 8 Mr.Jaspal Singh, learned Sr. Counsel submits that the cadre strength had been fixed by Notification dated 18.11.2003. The same strength was to remain intact till December 2006, as under the Rules, the Cadre strength is to be reviewed every three year. Therefore, even if the Notification dated 13.5.2005 is to be held valid, it can have only prospective effect. It cannot affect the vested rights of the petitioners to be appointed on the vacancies which had existed prior to the Cadre Review that has been done by Notification dated 13.5.2005. The whole exercise, according to the learned Sr. Counsel, is mala fide, and therefore, vitiated. In support of these submissions, learned Sr. Counsel relies on the judgment of the supreme Court in the case of P.Mahendran and others vs. State of Karnataka and others, (1990) 1 Supreme Court Cases 411. Learned Sr. counsel also made a reference to the detailed charts of the vacancies which have been attached with the pleadings. These charts, according to the learned Sr. Counsel, clearly establish that the vacancies actually exist. Since the vacancies were available, the vested rights of the petitioners for consideration for appointment could not be taken away. Learned Sr. counsel relied on the observations of the Supreme Court in the case of N.T.Devin Katti and others vs. Karnataka Public Service Commission and others, (1990) 3 Supreme Court Cases 157. Learned Sr. Counsel further submits that some officers have been discharging functions of more than one post. Some posts have been and are, occupied by Officers who do not even belong to the HCS (EB)/Allied Services. This, according to the petitioners, would clearly establish that the action of the respondents in reducing the cadre strength from 300 to 230 is an eye-wash. The exercise has been conducted only to defeat the claims of the petitioners. 9 Mr.Jaspal Singh, learned Sr. Counsel has also submitted that in the guise of alteration, the respondents have redetermined the cadre strength. The Notification dated 13.5.2005 states that it is in modification of the order dated 18.11.2003. It actually determines the strength and composition of the cadre for a period of three years from 13.5.2005 to 12.5.2008. According to the learned counsel, the term “alter” is not synonymous with the word “change”. The term “to change” is “to substitute one thing with another”; whereas the term “alter” is merely to do with “some change”. Therefore, the term “alter” in Rule 3(2) and the proviso of the 1930 Rules means not a drastic change in the cadre. It envisages only some change in the cadre. It does not mean that the composition of the cadre can be changed beyond recognition. In support of this submission, the learned Sr. Counsel has relied on a Full Bench judgment of the Patna High Court in the case of Fulo Singh and others v. State, AIR 1956 Patna, 170 ((FB) and the judgment of the Allahabad High Court in the case of Zamir Qasim v. Emperor AIR (31) 1944 Allahabad 137 (FB). In Fulo Singh's case (supra), it has been observed as under:- “(9)....... According to some, the word “alter” has a very wide significance, whereas, according to others, it is far more limited than what is conveyed by the word “reverse”. The majority view in the Full Bench case of the Allahabad High Court concedes that the word “alter” is a less radical expression than the word “reverse” and means “change in form” without changing the underlying character of the thing to be changed. The 10 dissentient view in that case appears to be that the word “alter” has been used in juxtaposition with “reverse” and this implies that alteration is a process of a much more limited scope than “reversal”. XXX XXX XXX The word “alter” has merely to do with some change, while maintaining the form, the shape or figure. It has the shade of meaning similar to the word “modify” and is opposed to such meanings constituted by such words like “reverse”, “annul” or “rescind”. I am not prepared to accept the majority view of the Allahabad High Court that, so long as the sentence is not enhanced, there is no change in the form, although the order of acquittal has been substituted by an order of conviction.” To emphasize the distinction, learned Sr. Counsel relied on the entries with regard to the terms “alter, alteration and determined” as given in RANDOM HOUSE UNABRIDGED DICTIONARY (NEWLY REVISED AND UPDATED). The aforesaid entries are as under:- “Alter, v.t. 1. to make different in some particular, as size, style, course, or the like; modify: coat; to alter a will; to alter course. 3. to change, become different or [1350-1400; ME < OF alterer < LL alterare to worsen, deriv. Of L alter other}- alter.er, n-Syn. 1. see adjust, change. 11 Alteration, n. 1. the act of altering, the state of being altered: Alteration prove the dress. 2. a change, modification or to determine, determining- n. 2.something determines. 3.a graphic symbol used in ideographic writing to denote a semantic class and written to a word to indicate in what semantic category word is to be understood, thus at times distinguisable homographs. Determined 1.resolute; staunch; the determined defenders of the Alamo. 2.decided; settled; resolved. 3.Gram. (of a phonetic feature) predictable from its surrounding context. Learned Sr. counsel submitted that the first exercise for redetermination of the cadre strength was done in the year 1990. Rule 3 was violated when the strength was reduced from 300 to 230 as earlier it was 240. This, according to the learned Sr. Counsel, is not an alteration, but determination. He submitted that alteration would only permit a certain amount of variation. He relies on the definition of the term “variation” as contained in the Oxford English Dictionary which is as under:- “Variation 3.The act of varying in condition, character, degree, etc. over time or distance, or among a number of instances; the fact of undergoing change or alteration, esp. within certain limits: the degree or amount of this. 4.An instance of varying or changing; a change in 12 something, esp. within certain limits; a difference due to some change or alteration E17. 6.The action or an act of making some change or alteration, esp. (LAW) in the terms of an order, trust, contract etc.” Learned Sr. Counsel for the petitioners further submitted that the respondents cannot be permitted to argue that the petitioners have no right to be appointed. All the learned counsel are agreed that the petitioners do not have an indefeasible right to be appointed. They, however, submitted that the respondents cannot be permitted to act arbitrarily only to deny appointment to the petitioners. It is submitted that the respondents are deliberately denying the appointment as the selection had been made during the regime of the previous government. Learned Sr. Counsel submitted that the power conferred on the State Government under Rule 3 cannot defeat the provisions of Haryana Civil Services (EB) and Allied Service and other Services Common/Combined Examination Act, 2002 (hereinafter referred to as “the 2002 Act”). According to the learned Sr. Counsel, by virtue of Section 4(1) of the 2002 Act, no appointment can be made to any post or service to which the said Act applies beyond the number of posts advertised. Section 4(2) provides that notwithstanding anything to the contrary contained in any judgment, order or decree or decision of court of law, Act, Rule, Regulation or Executive instructions, no candidate shall have right to seek appointment beyond the number of advertised posts. Therefore, the petitioners having been duly selected would have a right to be appointed against the advertised posts. Mr.Jaspal Singh, learned Sr. Counsel also submitted that the 13 petitioners are entitled to seek appointment on the equitable principle of promissory estoppel. In support of this submission, the learned Sr. Counsel has relied on the judgments of the Supreme Court in the case of Bhim Singh and others vs. State of Haryana and others (1981) 2 Supreme Court Cases 673 and a judgment of the Division Bench of the Delhi High Court in the case of Kanishka Aggarwal v. University of Delhi and others, AIR 1992 Delhi 105. Certain additional points were also raised by Mr.Chatrath, learned Sr. Advocate appearing on behalf of the petitioners in CWP No.14371 of 2005. Learned Sr. Counsel submits that he will adopt the arguments advanced by Mr. Jaspal Singh, learned Sr. Advocate. He, however, emphasized that the pleas taken by the respondents are not only fallacious, but are against the record. The respondents have wrongly stated that 48 posts were increased in the Cadre at the instance of the HCS (EB) Officer's Association (Regd.). In fact out of these 48 posts, 35 have been retained. Posts which existed prior to 1990 have been abolished. Higher duties have been given to Officers of the lower cadre. All the nominees from Registers A-I, A-II and Register C have been appointed. Only candidates selected against Register B, as a result of the competitive examination, have been denied appointments. Factually, he submitted that vacancies are still available against which the petitioners can be appointed. Procedure prescribed under the Rules has to be meticulously followed. In support of this submission, learned Sr. Counsel relies on the judgments of the Supreme Court in the cases of State of Uttar Pradesh v. Singhara Singh and others, AIR 1964 Supreme Court 358, Hukam Chand Shyam Lal v. Union of India and others, AIR 1976 Supreme Court 789, Chandra Kishore Jha v. Mahavir Prasad and Ors, 14 JT 1999 (7) SC 256, M.S.Ahlawat v. State of Haryana and Anr. JT 1999 (8) SC 530. Learned Sr. Counsel also submitted that the Commission is a constitutional body. In normal circumstances, recommendations of the Commission deserve to be given full respect and accepted in the absence of proven mala fide. In support of this submission, learned Sr. Counsel relied on a Division Bench judgment of this court in the case of Raj Kumari v. State of Punjab and others, 2005(1) SCT 287 and a single Bench judgment of this court in the case of Paramvir Singh and others v. State of Punjab and others, 2003 (4) RSJ 162. As a parting shot, learned counsel has relied on the latest judgment of the Supreme Court in the case of Inderpreet Singh Kahlon and others v. State of Punjab & Ors., JT 2006 (5) SC 352. He submits that pendency of the Vigilance or CBI enquiry is no justification to deny appointments to the petitioners. Such a decision could only be taken on completion of the enquiry; that too, only after giving an opportunity to the petitioners to meet, any adverse findings that may be recorded in the enquiry. Learned Sr. Counsel further submitted that the reliance placed by the respondents on the Full Bench judgment of this Court in the case of Amarbir Singh and others vs. State of Punjab and others, 2003 (5) SLR 398 is misplaced. The aforesaid judgment has been specifically over-ruled by the Supreme Court. Mr. Rajiv Atma Ram, learned Sr. Advocate appearing on behalf of the petitioners in CWP No.5437 of 2005, has also adopted the arguments of Mr. Jaspal Singh, learned Sr. Advocate. He has, however, made detailed independent submissions also. Learned Sr. Counsel submitted that under Clause 7 (vi) (d) of the Model Code of Conduct for elections, only an ad 15 hoc appointment cannot be made. Appointment on regular basis can be made. Learned Sr. Counsel relied on a Division Bench judgment of this Court in the case of Babita Gupta vs. State of Punjab and others, 1998(4) RSJ 408 and a judgment of the Supreme Court in the case of I.J.Divakar and others v. Government of Andhra Pradesh and another, AIR 1982 Supreme Court 1555. Learned Sr. Counsel further submitted that requisition once sent to the Commission for making recommendations for appointment could not be subsequently withdrawn. In the aforesaid case, a direction was given to complete the selection and make the appointments. It was further directed that only on exhaustion of the list, other appointments could be made. Learned Sr. Advocate further reiteriated that appointments cannot be denied without legal justification. He relied on the judgment R.S.Mittal v. Union of India, JT 1995 (3) S.C. 417. Learned Sr. Counsel further reiterated that even if cadre review is accepted, vacancies are still available against which the petitioners can be appointed. He submitted that in accordance with 1930 Rules in a block of 28 vacancies, 19 would fall to the share of the direct recruits. It is accepted by the respondents that promotees are working in the service in excess of their quota. However, the respondents plead that the excess is due to the unrealistic inflation of the cadre strength by the previous government. Learned Sr. Counsel pointed out that direct recruitment in this case is also open to candidates from the different Registers. Government cannot challenge the correctness of the orders passed by the previous government being successors in office and now as respondents in the present writ petition. In support of the proposition, learned Sr. Counsel relied on a judgment of the Supreme Court in the case of State of Assam and anr. v. Raghava Rajgopalachari, 1972 16 SLR 44, a judgment of the Delhi High Court in the case of Joginder Pal Singh v. Union of India and others, 1983 (3) SLR 252 and a judgment of this Court in the case of Punjab Tourism Development Corporation vs. Presiding Officer, Labour Court, Amritsar and others, 1997 (1) AIJ 15. Learned Sr. counsel has thereafter emphasized the adverse effects of the denial of appointments at this stage and also the prejudice it would cause to the petitioners. They would be adversely affected in the fixation of their salary, seniority and benefit of experience. He submitted that in this case, interim orders restraining the appointments ought not to have been given as the selected candidates cannot be compensated. He relied on a Full Bench judgment of this Court rendered in the case of Sukhdev Singh Sidhu and others v. State of Punjab and others 2003 (3) RSJ 299. Learned Sr. Counsel further submitted that appointment on 37 posts in the executive branch and all the 44 posts of allied services cannot even be denied on the ground of cadre review. The cadre review is limited only to the certain number of posts falling in the Executive Branch. There is no finding till today that selection is vitiated. Enquiry is still going on. Mere allegations of irregularities are not sufficient to deny appointment to the petitioners. Learned Sr. Counsel relied on a Division Bench judgment of this Court in the case of Girish Arora v. State of Haryana, 1997 (3) SCT 240. Reiterating the submissions of the petitioners on the arbitrariness of the cadre review committee, the learned Sr. Counsel submitted that in this exercise, posts which fall to the share of direct recruits have been deliberately reduced to accommodate promotees. Otherwise, those promotees working in excess of the quota would have to be reverted. It is further submitted that a closer look of the cadre review would show that the 17 posts deleted are not the posts which are alleged to have been increased by the former regime. The plea raised by the respondents is, therefore, against the record. The respondents have no legal justification for denying the appointment to the petitioners. The instructions issued by the Election Commission in letters dated December 23, 24 and 27 of 2004 are beyond their jurisdiction. The Model Code of Conduct for holding elections does not cover regular appointments. It only covers ad hoc appointments. Mr.P.S.Patwalia, learned Sr. Counsel appearing on behalf of the petitioners in Amended CWP No.2839 of 2005 has also adopted the arguments of the earlier counsel appearing for the petitioners. Mr. Patwalia, learned Sr. Counsel has further made a grievance that prior to elections, it had been announced at political rallies as well as in the newspapers that if the Congress Party came to power, it would not make any appointments on the basis of the selections made during the time of the previous regime. This, according to the learned Sr. Counsel, is a clear indicator that the