LPA No.147 of 2009 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. LPA No.147of 2009 in CWP No. 20413 of 2002 Date of decision:16.3.2009 State of Haryana and others ...Appellants. vs. Raj Singh ..Respondent. CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MR.JUSTICE NAWAB SINGH. --- Present: Mr.Surinder K.Bishnoi, DAG,Haryana, for the appellants. -- J.S.KHEHAR,J. (Oral) In disposing of the present appeal, it is necessary to notice, that respondent Raj Singh was inducted into the service of the appellants, as a Lineman Instructor ( Theory) on ad hoc basis on 10.11.1987. Just a little while prior to his direct recruitment, four posts in the same cadre, were advertised on 14.7.1987. As a consequence of process of selection in which respondent Raj Singh participated, the Subordinate Services Selection Board Haryana finalised the selection list on 25.5.1989. It is not a matter of dispute, that in the aforesaid advertisement four posts of Lineman Instructor (Theory) were advertised, so as to be filled up from amongst the category of Ex-servicemen. In the merit list of the aforesaid category, the name of respondent Raj Singh figured at serial No.3. As a consequence of his continuation in service based on his appointment on ad hoc basis respondent Raj Singh came to be regularised LPA No.147 of 2009 2 vide order dated 22.4.1992 with effect from 1.1.1991. In other words, even shorn of any benefits, in furtherance of the writ petition filed by him the judgment whereof is subject matter of challenge in the present appeal, respondent Raj Singh had acquired a substantive right to occupy the post of Lineman Instructor (Theory). Through CWP No. 20431 of 2002, the claim of respondent Raj Singh was based on the selection process wherein, he came to be placed at serial No. 3 in the merit list from amongst the candidates belonging to the Ex -servicemen category. A learned Single Judge of this Court, while disposing of CWP No.20413 of 2002,had accepted the claim of the respondent, and based on his selection at the hands of the Subordinate Services Selection Board, Haryana, had directed the appellants herein, to appoint him as such. The first contention advanced by the learned counsel for the appellants, is based on the principle of constructive res judicata. In this behalf, learned counsel for the appellants has invited this Court's attention to the averments made in paraph 8 of the written statement filed in response to CWP No.20431 of 2002. Paragraph 8 is being extracted hereunder:- “That the facts and circumstances of the present petition, Sh.Raj Singh was not similar and identical with the facts and circumstances of Smt. Saroj Kumari's case. One Smt.Manju Kumari who was junior to Smt. Saroj Kumari in this selection list issued by Subordinate Services Selection Board Haryana on 19.1.88 for the post of language Teacher (English)have been appointed regularly w.e.f. her selection where as the services of Smt.Saroj Kumari by the Hon'ble High Court in para no.3 in the order dated 19.8.96 in CWP No.15308 of 1995. Sh.Raj Singh present petitioner was also selected as Lineman Instructor by the Subordinate Services Selection Board,Haryana LPA No.147 of 2009 3 in the category meant for Ex-serviceman. The Subordinate Service Selection Board,Haryana recommended 5 Candidates and the name of the present Petitioner was shown at Sr.no.3 ( a copy of selection list for the post of Lineman (Theory) Instructor for ex-serviceman is enclosed as Annexure R-3) one Sh.Jagbir Singh s/o Sh.Jagdish Lal who was at Sr.1 in this list was offered appointment. The senior of the petitioner in this list Sh. Jagat Singh S/o Sh.Zile Singh was not offered appointment. In view of this the service of the present petitioner cannot be regularized w.e.f. 25.5.89 From the date of recommendation was made by S.S.S.Board,Haryana ignoring his senior candidate mention above. Therefore, the services of Sh.Raj Singh in present petitioner was rightly regularized w.e.f. 1.1.91 in accordance with the govt. instruction dated 28.1.91 and after that he was also given the benefit of Military service as detail mentioned in para no.3 above.” Having examined the plea raised by the learned counsel for the appellants in conjunction with the averments made in paragraph 8 aforesaid, we are satisfied, that the plea of constructive res judicata is not available to the appellants herein, so as to repell the claim of respondent Raj Singh. In the earlier writ petition bearing No.777 of 1998 filed by Raj Singh, he had claimed military service benefits. In yet another writ petition bearing No.9847 of 1998, he had claimed regularisation in service. In none of the earlier writ petitions the claim of respondent Raj Singh was for appointment as a consequence of his selection at the hands of the Subordinate Services Selection Board. In our considered view, the claim based on the said selection could not be raised by respondent Raj Singh on account of the fact, that as a matter of an interim order passed in a pending writ petition (filed at the hands of the persons appointed on ad hoc basis) LPA No.147 of 2009 4 this Court had stayed appointments consequent upon the publication of the selection at the hands of the Subordinate Services Selection Board, Haryana on 25.5.1989. It is only after the culmination of the proceedings in the aforesaid writ petition, and the consequential vacation of the interim orders passed by this Court, that respondent Raj Singh filed representations claiming the appointment by way of direct recruitment on the basis of the select list dated 25.5.1989. It is not a matter of dispute that the aforesaid representations were considered and rejected. The final rejection of the claim raised by respondent Raj Singh is dated 17.5.2002. The respondent Raj Singh therefore, availed of his remedy of claiming appointment by way of direct recruitment as soon as the State took a final decision not to accept his claim of appointment by way of direct recruitment. It is, therefore, not possible for us to accept the plea of constructive res judicata at the hands of the appellants. The second contention advanced by the learned counsel for the appellants is based on a judgment rendered by the Apex Court in State of U.P. and others vs. Harish Chandra and others, 1996(2) Service Cases Today 712. Learned counsel for the appellants has invited the pointed attention of this Court to the conclusions drawn by the Supreme Court in paragraphs 9 and 10 of the aforesaid judgment. Paragraphs 9 and 10 relied upon by the learned counsel for the appellants are being extracted hereunder:- “Coming to the merits of the matter, in view of the Statutory Rules contained in the Rule 26 of the Recruitment Rules the conclusion is irresistible that a select list prepared under the Recruitment Rules has its life only for one year from the date of the preparation of the list and it expires thereafter. Rule 26 is LPA No.147 of 2009 5 extracted hereinbelow in extenso:- “26. Appointment by appointing authority- The select list referred to in sub-rules (6) and (7) of Rule 23 shall be forwarded by the Selection Committee to the appointing authority mentioning the aggregate marks obtained at the selection by each candidate. The names of general and reserve candidates shall be arranged by the appointing authority in a common list according to the merit of the candidates and the appointment shall be offered in the order in which the names are arranged in the list and the list shall hold good for a period of one year from the date of selection”. “ Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Coourt relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the writ petitions. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.1987 and the list no longer survived after one year and the rights, if any, of persons LPA No.147 of 2009 6 included in the list did not subsist. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the Administrative Authority have made the appointments from list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases in pursuance to the direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority. Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the Appointing Authority from a select list even after the expiry of one year from the date of selection but such illegal action of the Appointing Authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have also no hesitation in coming to the conclusion that such appointments by the Appointing Authority have been made contrary to the provisions of the Statutory Rules for some unknown reason and we deprecate the practice adopted by the Appointing authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given by the High Court since admittedly, the life of the select list prepared on 4.4.1987 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction, if the writ petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one vacancy in the year 1987 is correct or not”. It is not possible for us to accept the plea raised by the learned counsel for LPA No.147 of 2009 7 the appellants on the basis of the judgment rendered by the Supreme Court in the case relied upon. The appellants may have been justified in denying the appointment to respondent Raj Singh at their own. The denial of appointment to respondent Raj Singh as a consequence of his selection at the hands of the Subordinate Services Selection Board, Haryana was however, based on interim orders passed by this Court. Had the aforesaid interim orders not been passed by this Court, respondent Raj Singh would have been appointed to the post for which he had been selected at serial No.3 in the merit list. It is also clear from the factual position noticed hereinabove, and confirmed by the learned counsel for the appellants during the course of hearing of the appeal, that the writ petition wherein the interim order was passed by this Court, was not eventually allowed. Had it been allowed there would have been justification in the passing of the impugned order. The interim order under reference came to lapse with the disposal of the aforesaid writ petition with a direction to the petitioners there to raise a claim for regularisation under the prevailing instructions issued by the State Government. It is not the case of the appellants before this Court, that vacancies advertised to be filled up by way of direct recruitment (wherein the respondent Raj Singh came to be selected at serial No.3) came to be fully exhausted as a consequence of regularisation of such employees. Despite being posed a query on the aforesaid issue, during the course of hearing in the instant appeal, no reply could be tendered by the learned counsel for the appellants. Thus viewed, it is natural to assume that the vacancies advertised by the Subordinate Services Selection Board Haryana were still subsisting, and the claim of respondent Raj Singh thereto as a consequence of his selection had remained unredressed. Since undisputedly LPA No.147 of 2009 8 Raj Singh was selected at serial No.3 in the merit list of the the category for which there were four vacancies, we are satisfied that the learned Single was fully justified in directing the respondents to to allow Raj Singh's appointment with effect from a date he was entitled to as a consequence of his selection by way of direct recruitment. This determination at the hands of the learned Single Judge would only relate back the appointment of Raj Singh to the post of Lineman Instructor ( Theory) from the year 1991 ( based on his regularisation) to the year 1989 ( based on his selection by way of direct recruitment). Yet another contention was advanced by the learned counsel for the appellants. In this behalf, the contention of the learned counsel for the appellants is based on the decision rendered by this Court in Smt.Saroj Kumari v. Director, Industrial Training and Vocational Education, Haryana (CWP No.15308 of 1995, decided on 19.8.1996). The factual position pertaining to Saroj Kumari is apparent from the first paragraph of the aforesaid judgment, which is extracted hereunder:- “ The petitioner was working as a language Teacher under the Department of Industrial Training and Vocational Education Haryana. She was appointed as a teacher in English on adhoc basis and she joined as such on 25.6.86 the Subordinate Services Selection Board Haryana advertised 57 posts of Language Teacher (English). The petitioner who also applied for the same and was selected. Her name was shown by the Selection Board in merit list of general candidates at Sr.No.20, published on 19.1.1988. She requested the departmental authorities to give her appointment on a regular basis. Such on appointment was however not issued on the ground that certain adhoc employees had obtained stay orders from the High Court in their writ petition”. LPA No.147 of 2009 9 There is nothing whatsovever, to distinguish the facts of this case from that of Saroj Kumari's case (supra). It is therefore, that the learned Single Judge accepted the claim of respondent Raj Singh in terms of the decision rendered by this Court in Saroj Kumar's case (supra). To be fair to the learned counsel for the appellants, it needs to be noticed that while referring Saroj Kumari's case (supra) learned counsel for the appellants pointed out that a candidate lower in the merit list than Saroj Kumari had been appointed, whereas, that was not so in the present case. Learned counsel for the appellants also pointed out that in the present controversy the candidate placed at serial No.1 in the category of Ex servicemen had admittedly been appointed. The claim of respondent Raj Singh having been accepted it is apparent, that the candidate placed at serial No.3 in the merit list of the category of Ex servicemen has also been appointed. This, according to the learned counsel for the appellants, is not permissible on account of the fact, that a candidate with a better merit, namely, the one placed at serial No.2 in the merit list, has been left out. It is not possible for us to accept any of the submissions advanced by the learned counsel for the appellants (as have been noticed in the foregoing paragraphs). It was open for a candidate higher in the merit list to raise a claim in a Court of competent jurisdiction. No candidate at a higher position in the merit list having not raised a challenge to the action of the respondents, cannot preclude the claim of respondent Raj Singh, which was based on his own individual merit namely at serial No.3. Had the person placed higher in the merit list (at serial No.2) been desirous of appointment, since 4 vacancies from the category of Ex-servicemen had been advertised, he would not have effected the right of the respondent Raj Singh. LPA No.147 of 2009 10 For the reasons recorded hereinabove, we find no merit in this appeal and the same is accordingly dismissed. ( J.S.Khehar) Judge (Nawab Singh ) Judge March 16, 2009 rk