C.W.P No.17202 of 2005 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : February 03 , 2009 1. C.W.P No.17202 of 2005 Pardeep Kumar and others vs The State of Haryana & others 2. C.W.P No.17232 of 2005 Jaswant Singh and others vs The State of Haryana & others 3. C.W.P No.17249 of 2005 Mohan Lal and others and others vs State of Haryana & others 4. C.W.P No.17536 of 2005 Rajesh Kumar vs State of Haryana & others 5. C.W.P No.17590 of 2005 Sushila Devi and others vs State of Haryana & others 6. C.W.P No.18591 of 2005 Satender and another vs State of Haryana & others 7. C.W.P No.18980 of 2005 Ravish Kumar and others vs State of Haryana & others 8. C.W.P No.1458 of 2006 Ajay Kumar Mor vs State of Haryana & others 9. C.W.P No.4488 of 2006 Sandeep Hooda and others vs State of Haryana & others 10. C.W.P No.14626 of 2006 Yogvender Singh and another vs State of Haryana & others 11. C.W.P No.15871 of 2007 Bijender Singh and another vs State of Haryana & others *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI C.W.P No.17202 of 2005 ::2:: *** Present : Mr. D.S.Patwalia, Advocate and Mr.Sumeet Sheokand, Advocate for the petitioners in CWP Nos.17202 and 18591 of 2005. Mr.R.K.Malik, Sr. Advocate with Mr.Yashdeep Singh, Advocate for the petitioners in CWP No.17232 of 2005 Mr.Raghuvinder Singh, Advocate for Mr. Puneet Bali, Advocate for the petitioners in CWP Nos.17249 & 18980 of 2005. Mr.G.P.Singh, Advocate for the petitioners in CWP Nos. 17536 and 17590 of 2005 Mr.R.P.Rana, Advocate for the petitioner in CWP No.1458 of 2006. Mr.L.R.Nandal, Advocate for the petitioner in CWP Nos. 4488 and 14626 of 2006. Mr.D.S.Rawat, Advocate for the petitioner in CWP No.15871 of 2007. Mr.Randhir Singh, 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 This order shall dispose of CWP Nos. 17202, 17232, 17249, 17536, 17590, 18591, 18980 of 2005, 1458, 488, 14626 of 2006 and 15871 of 2007. For the sake of convenience, facts are being extracted from CWP No.17202 of 2005. The Haryana State Industrial Security Force Act, 2003 (for short “the Act”) was passed by the Haryana Assembly in 2003. Section 1(3) of the Act lays down that the Act would come into effect from the date specified by the Government in this behalf. It is not disputed that such notification C.W.P No.17202 of 2005 ::3:: was never issued. Thereafter, two Battalions of the said force were sanctioned by the Government and by an advertisement dated 5.2.2004, 1400 posts of Constables were advertised by the Director General of Police Haryana and 1339 persons appointed. Before the said appointments were finalized, three more Battalions were sanctioned and advertisements dated 23.7.2004 and 24.7.2004 for recruitment of 2050 Constables were announced. On 2.8.2004, the Director General of Police approved a proposal to send a requisition for recruitment of 71 male and 9 female Sub Inspectors through the Haryana Staff Selection Commission. A note dated 30.7.2004 had recorded that the Government had sanctioned 100 posts of Sub Inspectors for the Haryana State Industrial Security Force (for short “the Force”) and that apart from that 50 posts were also sanctioned for 2 IRB Battalions, and that 13 posts in GRPF and 7 posts of S.Is in Gurgaon Range were lying vacant. Consequently, a requisition for 80 posts of Sub Inspectors for direct recruitment in Haryana police including IRB and the Force was sent. The said posts were advertised by an advertisement dated 7.9.2004. After completing the selection process, the Haryana Staff Selection Commission recommended the names of 69 candidates by letter dated 17.12.2004. It needs to be kept in mind that the Election Model Code of Conduct came into force in Haryana on 17.12.2004 which happened to be a Friday. Notwithstanding this fact the recommendation was processed and appointment orders were issued on 19.12.2004. The Haryana State Industrial Security Force Act was repealed by the Haryana State Industrial Security Force (Repeal) Act, 2005 vide Haryana Act No.5 of 2005. The Services of such Sub Inspectors were terminated, and the said orders having been set aside by this Court, were C.W.P No.17202 of 2005 ::4:: terminated again in October 2005 after giving them show cause notices and by passing speaking order, dated 10.10.2005. It is this action which has been impugned in these writ petitions. Before proceeding further, it has to be noticed that the posts of Constables for the Force had also been abolished and the services of the persons recruited had been terminated. That action had been challenged before this Court by way of CWP No.248 of 2006, which was dismissed by a Division Bench by judgment dated 9.1.2006 by holding as follows :- “ ........ learned counsel for the petitioners states that the action of the authorities in repealing the Act, referred to above, is violative of the fundamental rights vested in the petitioners under Article 21 of the Constitution of India, and in violation of the Directive Principles of State Policy, contained in Articles 38 and 41 of the Constitution have been deprived of their right to life through the employment which they had gained under the provisions of the Act. It is not possible for us to accept the aforesaid contention of the learned counsel for the petitioners. Employment will be available only when there is a requirement or need. In the absence of any requirement or need, it is not possible for any citizen to claim or demand any employment. Since the Act under reference was never enforced, the very appointments of the petitioners were not in consonance with law and as such by the repealing of the provisions of the Act, we find that no illegality has been committed by the C.W.P No.17202 of 2005 ::5:: respondents by terminating the services of the petitioners as the posts against which they were appointed, came to be abolished.” (Emphasis supplied). It is against this factual landscape that learned counsel for the petitioners have argued this matter. Learned counsel for the petitioners have contended that under the directions of this Court, the Principal Secretary to Government of Haryana, Home Department had filed an affidavit dated 12.12.2006 wherein it was brought out that more than 80 posts of Sub Inspectors were available to be filled up on 4.8.2004. It is their further contention that in these circumstances the selections of the petitioners (regarding which there is no specific allegation) could easily be held to have been made against such posts, more so since at that time they had served for almost one year and had received training. It is further argued that there is only one omnibus allegation that the Haryana Staff Selection Commission recommended pre- selected candidates and, therefore, the action of the respondents in not terminating the services of 12 Sub Inspectors, who were appointed along with them as a result of the same selection, as indeed thousands of other persons whose names had been recommended by the same Commission for different posts, is clearly discriminatory. It has further been urged that no fault can be attached to the petitioners and that some of them had resigned their government jobs to join these posts. It is also argued that as per the note put up to the Director General of Police, 7 posts of Sub Inspectors were available in the Gurgaon range and, therefore, atleast 7 such vacancies could not be said to be not existing. It has been next argued that the State cannot be permitted to add additional grounds which were not part of the C.W.P No.17202 of 2005 ::6:: first order. Violation of principles of natural justice has also been urged on the ground that in response to the show cause notices, the petitioners had filed interim replies requesting for some more information but without giving information, stereotyped and cyclostyled termination orders were passed. Another argument, which has been raised, is that the respondents have spent lacs of rupees on training and salary of the petitioners which would all go waste. Much has also been sought to be made from the fact that originally the respondents kept insisting that there were no vacancies and it was only under the insistence of this Court that additional affidavit dated 12.12.2006 was filed whereby it was revealed that in fact more than 80 posts of Sub Inspectors were available to be filled on 4.8.2004. Learned counsel for the petitioners have relied upon the judgments of the Hon'ble Supreme Court of India in P.V.Jagannath Rao and others vs. The State of Orissa and others, 1971(1) SLR 746, Mohinder Singh Gill and another vs The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851, State of Punjab and others vs Harcharan Singh & others, CA No.3521 of 2006, judgments of this Court in CWP No.2896 of 2005, Rachna and others vs State of Haryana and another, decided on 22.1.2007, CWP No.16376 of 1999, Davender Kumar and others vs State and others, decided on 31.1.2007, and a judgment of the Allahabad High Court in State of U.P vs Rakesh Kumar (Allahabad) (DB), 2004(1) SCT 34. In P.V.Jagannath Rao and others' case (supra), the Hon'ble Supreme Court of India held as follows :- “7. It is well settled that if a statutory authority exercises its power for a purpose not authorised by the C.W.P No.17202 of 2005 ::7:: law the action of the statutory authority is ultra vires and without jurisdiction. In other words, it is a mala fide exercise of power in the eye of law i.e., an exercise of power by a statutory authority for a purpose other than that which the Legislature intended. But the question arises as to what is the legal position if an administrative authority acts both for an authorised purpose and for an unauthorised purpose. In such a case where there is a mixture of authorised and unauthorised purpose, what should be the test to be applied to determine the legal validity of the administrative act? The proper test to be applied in such a case is as to what is the dominant purpose for which the administrative power is exercised. To put it differently, if the administrative authority pursues two or more purpose of which one is authorised and the other unauthorised, the legality of the administrative act should be determined by reference to the dominant purpose........” In the case of Mohinder Singh Gill (supra), the Election Commission had cancelled the election for the Ferozepur Parliamentary Constituency by passing an order dated 22.3.1997, which was challenged by the petitioner therein. The Hon'ble Supreme Court held as follows :- “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so C.W.P No.17202 of 2005 ::8:: mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise......” In the case of State of Punjab and others vs Harcharan Singh and others' (supra), the dispute was with regard to posts of Lascars wherein selection process was completed but appointment letters could not be issued because of promulgation of the Model Code of Conduct. In those circumstances, the Hon'ble Supreme Court of India held as follows :- “For the reasons aforesaid, we set aside the impugned order of the Division Bench of the High Court. We are, however, of the opinion that since the respondents have been selected by a duly constituted Subordinate Services Selection Board and they could not be appointed because of the ban imposed by the Government, in the fitness of things and in the interest of justice and fair play if the respondents could be accommodated to the posts of Lascars for which they have been duly selected as and when the ban of the Government is relaxed or when the posts are revived. We make it clear that in such event the case of the respondents shall be considered first before calling for the fresh candidates by way of advertisement or otherwise.” In the case of Rachna and others (supra), Staff Nurses who had been selected could not be appointed on account of coming into force of Election Model Code of Conduct and subsequently the selection was set aside only on the ground that the result was declared after the issuance of Model Code of Conduct. In those circumstances, the Division Bench held C.W.P No.17202 of 2005 ::9:: as follows :- “To be or not to be” may have been a dilemma faced by Hamlet. The position in the present scenario was plainly converse and did not admit any doubt whatsoever. The issuance of orders for appointment of selected Nurses not compulsively eclipsed by the promulgation of Code of Conduct, a bright feature of Indian Republic. It is not a case where the appointments were held up by any other cause. That being so, the moment the election process was over and need was felt for filling up the vacancies aforementioned, the competent authority was duty bound to appoint those already selected by the Commission.” In the case of Davender Kumar and others (supra), the controversy was with regard to filling up posts of Gram Sachivs, in a situation where selections could not fructify because the Government had abolished octroi and consequently absorbed all those surplus employees as Gram Sachivs. Thereafter fresh posts of Gram Sachivs were sought to be filled up. A Division Bench of this Court 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 and 2000, which remained pending till this date and by this time, C.W.P No.17202 of 2005 ::10:: 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.” Even the case of State of U.P vs Rakesh Kumar (supra) deals with a situation where there was no controversy with respect to the recruitment. In their turn, the respondents, apart from relying upon the decision in CWP No.248 of 2006 (supra), have also relied upon the report of the Commission of Inquiry headed by a retired Judge of this Court set up with regard to the creation of Haryana State Industrial Security Force, which had, inter-alia, the following terms of reference :- “2. What circumstances prevailed upon the Government to hurriedly go through the recruitment of Haryana State Industrial Security Force even without C.W.P No.17202 of 2005 ::11:: notifying the commencement of the Haryana State Industrial Security Force Act, 2003.” With regard to the above question, the Commission held as follows :- “......Shri Gobind Ram (CW1), when recalled, in his statement recorded on 11.10.2006 has stated that he was called from his house by the Director General of Police on 18.12.2004, which was holiday, being Saturday, and asked to put up the file relating to recruitment of Sub- Inspectors on the same day. It is also clear from his statement that signatures of Shri K.K.Mishra, D.I.G. Headquarters, were obtained on 19th of December, 2004, which was Sunday, and Shri M.S.Malik made the final order in his hand on the same day. He has further stated that the file came to him through Shri K.K.Mishra on 19.12.2004 itself and letter was issued on the same day as directed......” ...... “T.P.M Ex. CW34/2 by which actual demand was sought from various districts to work out the strength of the Force too mentioned that reply be sent within three days positively, which for obvious reasons was not practicable if the Industrial institutions, banks and other public undertakings were to be sounded or consulted for the purpose, without which actual requirement/demand could not be worked out. Aforesaid discussion makes it crystal clear that process of setting up of Haryana State C.W.P No.17202 of 2005 ::12:: Industrial Security Force was gone through with extraordinary speed........” ....... “ As pointed out above, deployment of the police force before setting up of the Haryana State Industrial Security Force ranged from 150 to 400 only. Despite that about 5,000 persons were recruited under that force with great speed without bothering for justification of the creation of that large number of posts. For that purpose, consolidated demand, as shown in Ex.CW 34/1 was prepared in the office of Director General of Police. This was done after seeking actual requirement from various district of the State of Haryana. It is clear from the evidence brought on the record that no demand in writing was received from any district headquarter.......” ...... “No mandatory requirement of the Act was either satisfied. It has come in evidence that no notification was made in the Official Gazette under section 3(1) of the Act to constitute the Force to be called the Haryana State Industrial Security Force. Similarly, no notification was made under section 1(3) of the Act about the date regarding coming into force of the Act. In this situation of the matter, Haryana State Industrial Security Force was neither legally constituted nor the Act relating to that Force came into operation. Admittedly, no person was even appointed as Director General of the Force as contemplated under section 4(1) of the Act. Shri C.W.P No.17202 of 2005 ::13:: Mohinder Singh Malik (CW51) has himself admitted that he was not formally appointed as Director General, Haryana State Industrial Security Force........” The contention of learned counsel for the respondents is that the entire exercise being shrouded in illegitimacy could not confer any right on the petitioners. It is further contended by learned counsel for the respondents that as regards the posts of Sub Inspectors whose services were not terminated, that selection related to an earlier requisition for filling up of backlog of reserved category posts and, therefore, the said selection is totally different and distinguishable from the case of the petitioners. It is further contended that the speaking order passed in the case of the petitioners contains all reasons which are now being urged to support the termination orders and, thus, the judgment passed in the case of Mohinder Singh Gill and another (supra), is not applicable to the present case. It is stated that in fact the inquiry report just substantiates the grounds taken in the termination orders. It is further argued that the Haryana Government is not competent to make unilateral selections of Sub Inspectors in the Indian Reserved Battalion, in view of the letter, dated 8.10.2003 (Annexure P-9). In my opinion, these petitions must fail. The single most important factor is the decision of the Division Bench of this Court in CWP No.248 of 2006 (supra) where it has been clearly held that appointments of Constables under the Act were not in consonance with law and that termination of their services could not be faulted, since the posts against which they were appointed came to be abolished. These findings are binding on this Court. C.W.P No.17202 of 2005 ::14:: As regards the case of P.V.Jagannath Rao and others (supra), it can profitably be argued that the proposition of law laid down therein would apply with equal force to the action of the then government in making these posts haste recruitments. With reference to the case of Mohinder Singh Gill and another (supra), I find merit in the argument of learned counsel for the respondents that the speaking order contains all reasons which are now being pressed in action to deny the claim of the petitioners. Coming to the judgments passed in the cases of Harcharan Singh & others, Rachna and others and Davender Kumar and others (supra), it may be noticed that there was no allegation regarding genesis of the recruitment being peppered with illegalities as is the present case. As far as the contention that seven posts of Sub Inspectors were lying vacant in Gurgaon Range, suffice it to say that as per the office note dated 30.7.2004 (supra) it was recorded that a total number of 170 posts were lying vacant. However, only 80 posts were requisitioned. In the circumstances, applying the dictum in P.V.Jagannath Rao and others' case (supra), it is clear that the dominant purpose was to fill up the posts in the Force and in the IRB and that dominant purpose being ultra vires, the whole exercise is vitiated. There is also weight in the argument of learned counsel for the respondents that the inquiry report does not set out any new grounds but is merely substantive evidence of the reasons which weighed with the respondents. Viewed as evidence, the report is a scathing indictment of the entire process of creation and filling up of these posts. The learned Judge has graphically brought out the unholy haste and rough shod manner in which all legitimate objections were steamrolled, and the scant regard for the rule of law in rushing through with the entire process. C.W.P No.17202 of 2005 ::15:: In the circumstances, I am constrained to hold that no illegality has been committed by the respondents in terminating the services of the petitioners. There is only one peripheral matter which needs to be addressed. In CWP No.17590 of 2005, petitioners No.1 and 7 had resigned their regular government service on their selection as Sub Inspectors. For these two petitioners, there is a requirement for making a special dispensation. I consequently direct that petitioners No.1 and 7 in CWP No.17590 of 2005 would be reinstated in the jobs where there were working at the time of their resignation with all consequential benefits except arrears of pay for the period that they have remained out of job. With these observations, the writ petitions are dismissed with, however, no order as to costs. ( AJAY TEWARI ) February 03, 2009. JUDGE `kk' C.W.P No.17202 of 2005 ::16::