C.W.P. No.15100 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.15100 of 2011 Date of Decision: 06.09.2011 Surinder Mohan Sharma ....Petitioner Versus State of Haryana and another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. V.K. Sharma, Advocate for the petitioner. ***** 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 ? ** NIRMALJIT KAUR, J. (ORAL) The petitioner herein is seeking promotion to the post of Executive Engineer with effect from 02.08.1991 with all consequential benefits of pay and allowances and seniority and other consequential benefits flowing therefrom including arrears with interest @ 18%. The petitioner made a representation dated 23.04.1991 seeking promotion to the post of Executive Engineer as he was the only eligible SDO in the year 1991. The said representation was not decided. Accordingly, the petitioner filed CWP No.8006 of 1991 which was disposed of on 04.06.1991 by passing the following orders :- “After hearing learned counsel for the petitioner, we dispose of this writ petition by issuing a direction to the Haryana State Agricultural Marketing Board, Panchkula, through its Chief Administrator that the representation dated 23.04.1991 (Annexure P-10) with the writ petition made by the petitioner shall be considered and decided by the respondent-Board by passing a speaking order in C.W.P. No.15100 of 2011 2 the light of the instructions dated 17.08.1971 and order dated 21.12.1990 (Annexure P-9/F) within two months.” The said representation was rejected vide order dated 02.08.1991. Meanwhile, the juniors to the petitioner were promoted w.e.f. 06.11.2003. The name of the petitioner was also considered in the panel of promotion but he was ignored on the ground that he was facing charge sheets under Rule 7 and adverse remarks in the ACR of the year 1994-95. Subsequently, the adverse remarks in the ACR of Sh. Surinder Mohan Sharma for the year 1994-95 were quashed and various charge sheets were finally decided on various dates and the petitioner was exonerated vide various orders commencing from 1999 onwards and the last order dropping the charge sheet was passed on 09.08.2006. Only a simple warning “to be careful in future” was passed while deciding the charge sheet dated 20.07.2004. Accordingly, the case of the petitioner was taken up for promotion to the post of Executive Engineer from the date he was ignored for the first time on the basis of pending enquiry or charge sheet i.e. 02.08.1991. Finally, the matter was put up before the Board of Meeting held on 10.11.2006 and the Board after taking the entire matter into consideration dropped the adverse remarks in the ACR of the petitioner for the year 1994-95 and granted promotion w.e.f 06.11.2003 i.e the date when his junior was promoted without any back arrears of pay. The petitioner has, therefore, filed the present writ petition praying that he should be granted the said promotion from 02.08.1991 instead of from 06.11.2003 as he was the only eligible candidate for the year 1991 and that even the post of Executive Engineer was available. After taking into consideration the arguments and the facts as narrated above, it is an admitted position that no junior to the petitioner was promoted before 06.11.2003. The case of the petitioner for promotion was C.W.P. No.15100 of 2011 3 kept pending in view of various charge sheets against him. His case was duly considered for promotion after the finalization of the last charge sheet. Thereafter, he was promoted w.e.f. 06.11.2003 i.e from the date his juniors were promoted. The petitioner has not been able to show as to how he has a right to be promoted w.e.f. 1991 just because the post was available on the said date. Hon'ble the Supreme Court in the case of S.S. Balu and Anr. vs. State of Kerala and Ors. reported in AIR 2009 Supreme Court 1994 held that it was an employer who has a right to fill up all the posts or not to fill them up. Mandamus cannot be issued unless any discrimination is made in regard to the filling up of vacancy. While relying on various judgments rendered by Hon'ble the Apex Court, the Hon'ble Supreme Court in the case of S.S. Balu and Anr. (supra) held in para 16 of the said judgment as under :- “ 16. The State as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the concerned candidate will have no legal right for obtaining a writ of or in the nature of mandamus. In Shankarsan Dash vs. Union of India [(1991) 3 SC 47], a Constitution Bench of this Court held : “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona C.W.P. No.15100 of 2011 4 fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates as reflected at the recruitment test, and no discrimination can be permitted.” In State of Haryana vs. Subhash Chander Marwaha [(1974) 3 SCC 220], his Court held : “The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect... 11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived.” In Pitta Naveen Kumar vs. Raja Narasaiah Zangiti [(2006) 10 SCC 261], this Court held : “....A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise....” In State of Rajasthan and Ors. vs. Jagdish Chopra [(2007) 8 SCC 161], this Court held : C.W.P. No.15100 of 2011 5 “9. Recruitment for teachers in the State of Rajasthan is admittedly governed by the statutory rules. All recruitments, therefore, are required to be made in terms thereof. Although Rule 9(3) of the Rules does not specifically provide for a period for which the merit list shall remain valid but the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year. Vacancies which arose in the subsequent years could be filled up from the select list prepared in the previous year and not in other manner. Even otherwise, in absence of any rule, ordinary period of validity of select list should be one year. In State of Bihar v. Amrendra Kumar Mishra (2006) 12 SCC 561, this Court opined: “9. In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel.” It was further held : “13. The decisions noticed hereinbefore are authorities for the proposition that even the wait list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period.” xxx xxx xxx 11. It is well-settled principle of law that even selected candidates do not have legal right in this behalf.” Coming back to the present case, the petitioner was promoted w.e.f. 06.11.2003 i.e from the date his juniors were promoted. No junior to the petitioner was promoted before this date. Applying the law laid down in the case of S.S. Balu and Anr. (supra), no discrimination is evident and nor any right of the petitioner has been infringed. Dismissed accordingly. (NIRMALJIT KAUR) 06.09.2011 JUDGE gurpreet