C.W.P.No.3800 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.3800 of 2011(O&M) Date of decision : 17.11.2011 Shamsher Singh ...Petitioner Versus Haryana Vidhan Sabha Secretariat, Chandigarh and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present : Mr. Madan Pal, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana Mr. P.S.Jammu, Advocate for respondent no.3. MAHESH GROVER, J. This is a petition under Article 226/227 of the Constitution of India praying for issuance of appropriate writ in the nature of Certiorari quashing the impugned order dated 20.12.2010 (Annexure P-7) vide which respondent no.3 has been appointed as a Law Officer on 89 days basis w.e.f 20.12.2010 and is continuing thereafter on similar terms. The petitioner contends with reference to the rules which have come in existence in the year 1981 and known as Haryana Vidhan Sabha Secretariat Service Rules, 1981 (hereinafter referred to as the 'Rules') that according to the Rules and Appendix B thereto post of Legal Assistant as now re-designated as Law Officer is to be filled up from the persons possessing LL.B degree with 3 years practice at the Bar in the case of direct recruits, while in the case of promotees the essential qualification prescribed is LL.B professional with three years experience on any Class III (Group C) post in the Haryana Vidhan Sabha Secretariat having pay scale less than Legal Assistant. For the purpose of reference the relevant item no.6 to Appendix B is extracted hereunder:- C.W.P.No.3800 of 2011(O&M) 2 Sr,No. Designation Academic Qualification and experience, if any for direct recruitment Academic qualification experience for appointment other than by direct recruitment 6 Legal Assistant (i) LL.B (professional) (ii) Three years Practice at Bar By promotion (i) LL.B (professional) (ii) Three years experience on any Class III (Group C) post in the Haryana Vidhan Sabha Secretariat having pay scale less than Legal Assistant Rule 9 governs the method of recruitment to any post in the service other than the post of secretary and such method of recruitment has to be determined by the Speaker. It has further been stipulated in Rule 9 sub clause 2 that the appointing authority shall determine the method of appointment as and when vacancy arises. For the purpose of reference, Rule 9 is extracted as under:- “9. The method of recruitment to any post in the service other than to the post of Secretary, shall be determined by the Speaker. Method of recruitment – (1) Recruitment to the service shall be made:- (i) by direct recruitment ; or (ii) by promotion; or (iii) by transfer or deputation of an officer/official already in the service of any State Government or the Government of India. (2) The appointing authority shall determine the method of recruitment as and when a vacancy arises. (3) All promotions, unless otherwise provided, shall be made on seniority-cum-merit basis and seniority alone shall not confer any right to such promotion, in respective cadres.” The grievance of the petitioner is that the post of Legal Assistant has been filled up by way of direct recruitment ever since 1982 and the promotees have not been given a fair chance. He further contends that he had impugned the advertisement dated 20.6.2010 by filing a writ petition before this Court and upon an assurance being given by the Speaker he had C.W.P.No.3800 of 2011(O&M) 3 withdrawn the writ petition giving up his challenge to the filling up of the post subsequent to the advertisement dated 20.6.2010 but instead of honouring such an assurance the Speaker, Vidhan Sabha has again decided to fill up the post on ad hoc basis from direct recruits. Such arrangement has come in existence since 20.12.2010 and is continuing. It is thus contended before this Court that this is in complete violation of the rules and the petitioner who is a promotee has been denied the legitimate expectation of a promotion. On due consideration of the matter, I am of the opinion that the action of the respondents ipso facto cannot be faulted with for the simple reason that the rule as it exists today vests a complete authority in the Speaker/Appointing Authority who is to determine the method of recruitment as and when vacancy arises. The Rule has not been challenged before this Court and in such an eventuality the action of the respondents cannot be termed to be erroneous if they resort to filling up post on ad hoc arrangement. However, since item no.6 to Appendix B visualizes the filling up of post from promotees as well then a joint reading of the Rule 9 and item 6 to Appendix B to the Rules makes it desirous for the appointing authority to atleast conduct an exercise at the time when the vacancy arises to decide whether such a post has to be filled up by way of direct recruitment or by promotion or by transfer or deputation. Such an exercise is essential so as to lend legitimacy to the fitness of the procedure as to why the promotee has been denied the right of consideration. It will also reflect an application of mind by the appointing authority to the proper recruitment. Since there is no legal impediment in the way of an appointment by respondent no.3, action and consequent appointment per se cannot be quashed however the writ petition is disposed of with an expectation from the appointing authority that it shall fill up the posts as and when regular vacancy C.W.P.No.3800 of 2011(O&M) 4 arises by resorting to provisions of Rule 9 and record reasons as to why the post is required to be filled up by any of the modes prescribed in the said rule. Disposed of. November 17 2011 (Mahesh Grover) rekha Judge