C.W.P No. 3860 of 2003 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 3860 of 2003 Date of decision : July 01, 2009 Anil Kumar and others ...... Petitioner (s) v. State of Haryana and another, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. R.S.Ponghal, Advocate and Mr.Baldev Singh, Rathee, Advocate Ms. Alka Chatrath, Advocate Mr. A.K.Gupta, Addl.A.G Haryana for the respondents. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J The petitioners have claimed appointment to the posts of Patwari by way of this writ petition. On 11.12.1997, an advertisement was issued by the Director, Land Records, Haryana (respondent No.2) for filling up 33 posts of Patwari, which were reserved for Physically Handicapped persons in view of the Handicapped (Equal Opportunity, Reservation of Rights with full Participation) Act, 1995 (for short “the Act”). The petitioners, being C.W.P No. 3860 of 2003 ::2:: handicapped persons, applied for the said posts. They were called for interviewed between 18.5.1998 to 3.6.1998. The result was declared on 27.10.1998 and all the petitioners were selected. Thereafter, they completed their training in the Patwar Training School and appeared for the test. After completion of the Patwar training, the petitioners also went for six months field training. The result of the Patwar training examination was declared on 3.1.2000, wherein only petitioner No.5 cleared all the papers, while the other persons got compartments in one or two papers. On 7.3.2001, all the other petitioners appeared in the compartment exams also. At this stage, it would be apposite to refer to some related collateral facts also. By an earlier advertisement dated 7.9.1997, the Haryana Staff Selection Commission had advertised 1055 posts of Patwari. The applicants against that advertisement participated in the written test, which was held on 29.11.1998 followed by interviews between 8.4.1999 to 20.4.1999. The result was announced on 22.5.1999. Since appointment letters had not been issued to those selected candidates, they filed CWP No.16605 of 1999. The State had taken a plea that due to increased expenditure liability on account of pay revision, there was rise in fiscal deficit of the State and the Government had taken a decision not to offer appointments to the selected candidates. The said writ petition was initially disposed of by order dated 23.5.2000, whereby a direction was issued to the respondents therein to send for training to atleast that number of candidates who were equal to those sent for training in the last session. The said order was challenged by the respondents by way of SLP No.13397 of 2000, State of Haryana vs Jai Bhagwan and others and by order dated 9.2.2001, the Hon’ble Supreme Court remanded the matter back to this Court for a fresh C.W.P No. 3860 of 2003 ::3:: decision and further directed that pending disposal status quo would be maintained regarding filling up of the posts. It is not disputed that the said writ petition bearing CWP No.16605 of 1999 was disposed of by a Division Bench of this Court by judgment dated 11.2.2009 in the following terms :- “13. We are of the view that having regard to long time which has elapsed since the selection of the petitioners i.e about 10 years and the settled law that the petitioners do not have any indefeasible right to appointment merely on the basis of selection, no case is made out for issuance of mandamus for appointment of the petitioners. The judgments relied upon being on individual facts are distinguishable. However, the petitioners having been once selected and having regard to the stand taken by the learned counsel for the State, we direct that the petitioners be given relaxation in eligibility as and when fresh selections for the said posts are made.” Coming back to the case of the petitioners, the petitioners had filed CWP No.15051 of 2002 for a direction to the respondents to declare their result of Patwar training examination, and for the issuance of appointment letters. The said writ petition was disposed of by this Court by order dated 9.2.2002 directing the petitioners to file a representation which was to be decided by the respondents within three months. By the impugned order dated 13.1.2003, the said representation has been rejected. It is in these circumstances, the petitioners are before this Court. Counsel for the petitioners has contended that their cases are totally different to the cases of those petitioners who had filed CWP C.W.P No. 3860 of 2003 ::4:: No.16605 of 1999. The reasons for this, as per the learned counsel, are that firstly, the petitioners were recruited against a different advertisement; secondly, they belong to a different class being handicapped persons; and thirdly, the petitioners in CWP No.16605 of 1999 were abandoned after the declaration of the result, whereas the petitioners in the present case undertook the Patwar training, the field training and also appeared for the compartment exams. During this time, they were paid from government funds. Thus, the government not only invested money but also spent time in training the petitioners and, therefore, the doctrine that mere selection does not give a right of appointment would not apply to these petitioners since, as per the learned counsel, they had travelled much further than the stage of mere selection. It is further argued that it is not only that the petitioners have enforceable right, it is also in the public interest that the petitioners be appointed considering the expense and time which have been spent on training the petitioners. Learned counsel for the petitioners has relied upon a decision of this Court in CWP No.16376 of 1999, Davender Kumar and others vs State and others, decided on 31.1.2007, wherein it was held as follows :- “ It may be that in the year 1999, persons selected by the Haryana Subordinate Services Selection Board as Gram Sachivs could not be appointed as Haryana State had abolished Octroi w.e.f 1.11.1999 and had proposed to absorb the surplus staff working for the Octroi in various Municipal Committees, still it is a fact that various writ petitions had been filed in the years 1999 C.W.P No. 3860 of 2003 ::5:: and 2000, which remained pending till this date and by this time, more than 600 posts of Gram Sachivs are available and are to be filled by way of new selection by the Haryana Subordinate Services Selection Board. It cannot at all be said that Gram Sachivs selected by way of duly conducted process in the year 1999, were at fault, in any way. A large number of them had filed writ petitions in this Court, which have remained pending and now time has come when the respondent-State have again proposed to fill up the posts now available, which are more in number than the persons so selected in the year 1999. No defect has been pointed out as far as selection process for the posts of Gram Sachivs in the year 1999, is concerned. In the facts and circumstances of the case, it would be appropriate that the candidates selected for the posts of Gram Sachivs in the year 1999 be first absorbed now against available vacancies and then the remaining available posts be filled by further selection process. The contention of the State counsel that during this time many more persons would have become eligible and many of the selected candidates might have become over-age, cannot be given much weight as the persons already selected were not at fault and if many new persons have become eligible, they can always compete C.W.P No. 3860 of 2003 ::6:: for the remaining posts.” It is argued that the present case is similar in so much as no fault has been found in the selection of the petitioners and vacancies are available against which the petitioners can be adjusted. It may be noticed that in the impugned order, it has been recorded that total 1088 posts of Patwari were vacant in the Directorate of Land Records Haryana as on 31.3.1997. Out of them, 1055 posts were advertised by one advertisement and 33 posts (reserved for physically handicapped persons) were advertised by another advertisement. Since the selection of 1055 Patwaris was likely to take a long time, it was decided that 33 persons selected under the handicap category along with four who had been given appointments under ex-gratia scheme be sent for Patwar training. While their training etc. was going on, a select list against 1055 vacancies was also sent. Thereafter, the matter was taken up with the government for opening of Patwar schools, but at that stage the Government decided that due to revised pay scales and other factors, the fiscal deficit was increasing and, therefore, the selected candidates would not be appointed. In the result, vide letter dated 16.3.2000, the Government decided to abolish all posts which had been lying vacant for two years as on 29.2.2000. As a consequence of this decision, 1069 posts of Patwaris were abolished. The impugned order further records that in the meanwhile, CWP No.16605 of 1999 had been disposed and, as mentioned above, the Hon’ble Supreme Court remanded the case and had directed maintenance of status quo. Ultimately, it was held as follows :- “ From the above mentioned facts, it is clear that in the orders of the Hon’ble High Court dated 9.2.2001, the directions are C.W.P No. 3860 of 2003 ::7:: that for filling up the vacancies of Patwari status-quo be maintained, therefore, by declaring the result of the departmental examination of the handicapped candidates they cannot be appointed on the post of Patwari.” In the written statement, filed by the respondents, all these factors have been pleaded in defence. Learned counsel for the petitioners has also argued that since in the impugned order ultimately the reason mentioned for denying appointments to the petitioners was the fact of status quo, the respondents could not be heard to urge any further ground in the written statement. Reliance is placed on Mohinder Singh Gill and another, v. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851, wherein a Constitution Bench of the Hon’ble Supreme Court held as follows :- “ When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Other-wise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.” Learned counsel for the petitioners further relied upon a judgment of this Court in Naveen Kumar vs Union of India and others, 2007 (1) RSJ 270, wherein a Division Bench again reiterated the principles expounded in the case of Mohinder Singh Gill and another (supra). I have given my anxious consideration to the matter. As regards the first contention of the petitioners that their cases are entirely C.W.P No. 3860 of 2003 ::8:: different to the cases of those persons who had filed CWP No.16605 of 1999 is concerned, I am of the opinion that merely because a separate advertisement was issued for the petitioners or that the petitioners are handicapped persons would not mitilate against the fact that 30 posts which were advertised for the petitioners were an integral part of those 1069 posts which were abolished. Once that fact is established it would be necessary to have a bird's eye view on the litigation spawned by that event. Originally, CWP No.16605 of 1999 was disposed of with a direction to the respondents to send for training at least that number of candidates equally to those sent for training in the last session. Meaning thereby this Court had held that the selected candidates would have a right at least to be considered for a certain number of posts. That judgment was set aside by the Hon'ble Supreme Court when the matter was remanded, thus, accepting the primary contention of the State that the matter regarding entitlement of the selected candidates had to be re-determined. Once I have reached the conclusion that the posts against which the petitioners were selected were amongst those posts which were abolished, the petitioners would definitely be covered by the extracted para of the judgment in CWP No.16605 of 1999 (supra). The allegation that the petitioners were recruited against a different advertisement or that they belong to a different class, being handicapped or that they undertook the training or the examination and were paid from government funds would not have the effect of placing them on a completely different footing than the petitioners in CWP No.16605 of 1999. As regards the argument that in the impugned order, the only reason mentioned for denying appointment to the petitioners was the effect of status quo and that the respondents could C.W.P No. 3860 of 2003 ::9:: not be heard to urge any further ground in the written statement, the same is also fallacious. As has been noticed above, in the impugned order it has been clearly mentioned that out of total number of 1088 posts of Patwaris 1055 were advertised by one advertisement and 33 posts were advertised by another advertisement. Thus, the observations in the case of Mohinder Singh Gill and another (supra) would not apply to the impugned order. In the circumstances, this writ petition is disposed of in the same terms as CWP No.16605 of 1999. ( AJAY TEWARI ) July 01, 2009. JUDGE `kk'