IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No.96 of 2009(O&M) Date of decision: 1.9.2009 Mohan Lal and others -----Appellants Vs. State of Haryana and others -----Respondents LPA No.103 of 2009(O&M) Pardeep Kumar and others -----Appellants Vs. State of Haryana and others -----Respondents LPA No.118 of 2009(O&M) Ravish Kumar and others -----Appellants Vs. State of Haryana and others -----Respondents LPA No.119 of 2009(O&M) Satender and another -----Appellants Vs. State of Haryana and others -----Respondents LPA No.137 of 2009(O&M) Bijender Singh and another -----Appellants Vs. State of Haryana and others -----Respondents LPA No.96 of 2009 and connected appeals LPA No.258 of 2009(O&M) Jaswant Singh and others -----Appellants Vs. State of Haryana and others -----Respondents LPA No.259 of 2009(O&M) Sarabjit Kaur and others -----Appellants Vs. State of Haryana and others -----Respondents LPA No.331 of 2009(O&M) Sandeep Hooda and others -----Appellants Vs. State of Haryana and others -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON’BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. Puneet Bali, Advocate for the appellants in LPA Nos.96, 103, 118, 119, 137 of 2009. Mr.R.K.Malik, Sr.Advocate with Mr. Yashdeep Singh, Advocate for the appellants in LPA Nos.258 and 259 of 2009. Mr. Neeraj Kumar, Advocate for the appellants in LPA No.331 of 2009. Mr. Rameshwar Malik, Additional Advocate General, Haryana for the State. ----- Adarsh Kumar Goel,J. 2 LPA No.96 of 2009 and connected appeals 1. This order will dispose of Letters Patent Appeal Nos.96, 103, 118, 119, 137, 258, 259 and 331 of 2009, which have been preferred against judgment of learned Single Judge dismissing a group of writ petitions against orders of termination from service on the ground of abolition of posts and on the ground that appointments were illegal. LPA No.96 of 2009 has been preferred by 12 persons and total number of appellants in all the eight appeals is 43. 2. Advertisement dated 7.8.2004 was issued by the Haryana Staff Selection Commission inviting applications for 80 posts of Sub inspectors of Police in Haryana Police from the eligible candidates. The procedure for selection was written test followed by interview. After the appellants qualified the written test, they were called for interview and finally, letter of appointment dated 12.12.2004 or thereabout were given to them. In pursuance thereof, the appellants joined service and underwent training but after about six months, vide letters dated 5.7.2005 and around the said 3 LPA No.96 of 2009 and connected appeals date, appointments were rescinded on the ground that Haryana State Industrial Security Force Act, 2003 was repealed and Haryana State Industrial Security Force (HSISF) Battalions was disbanded w.e.f 29.6.2005. 3. Aggrieved thereby, the writ petitions were filed in this Court and were disposed of on different dates including by order dated 8.8.2005 on the short ground that no Show Cause Notice had been given before passing of the impugned order. Liberty was given to pass a fresh order. Accordingly, vide order dated 3.10.2005 or other similar orders, the services of the appellants were again dispensed with by repeating the same ground. It was mentioned that posts of Sub Inspectors were sanctioned in the HSISF in pursuance of sanction granted by Central Government vide letter dated 7.10.2003. The concept of appointments in HSISF was that it did not cast any financial burden on the State exchequer as expenditure incurred by the State was reimbursed in the form of user charges recovered from the Industrial houses for whom the security was 4 LPA No.96 of 2009 and connected appeals deployed. Though, requisition was for Sub Inspectors in HSISF, the Staff Selection Commission made a mistake in mentioning that appointments were to the posts of Sub Inspectors in Haryana Police as per advertisement dated 7.8.2004 and for the same reason, there was a mistake in the letters of appointment and in the giving of training to the appointees. This mistake was noticed and the order was passed, after disbanding the HSISF. 4. In the second round of litigation challenging order dated 3.10.2005 and other similar orders, contention raised by the aggrieved terminated employees was that their appointments were for Haryana Police Force under the provisions of the Punjab Police Rules, 1934 and the development of disbanding of HSISF could not be a ground to dispense with their services. Real reason was that they were appointed by the previous government. 5. The contention was opposed by filing reply submitting that the posts which were advertised and to which appointments were made, were infact meant for 5 LPA No.96 of 2009 and connected appeals HSISF cadre, though by mistake in the advertisement as well as in the appointment letters, it was mentioned that the appointments were for Haryana Police Force. In doing so, there was a fraud to appoint pre-selected candidates. The State Government had appointed a Commission of Enquiry headed by a former Judge on following terms of reference:- “1. Whether the Legislature was misled on the issue of demand and necessity for the creation of Haryana State Industrial Security Force. 2. Whether circumstances prevailed upon the Government to hurriedly go through the recruitment of Haryana State Industrial Security Force even without notifying the commencement of the Haryana State Industrial Security Force Act, 2003. 3. Whether any financial loss has been caused to the State Exchequer due to acts of omission and commission. If so, the persons responsible for the same. 6 LPA No.96 of 2009 and connected appeals 4.Whether any extraneous factors have played role in the selection/recruitment of the candidates of Haryana State Industrial Security Force, if so, persons responsible for the same.” The Commission submitted its report dated 29.1.2007. The Commission observed that creation of Haryana State Industrial Security Force was without any occasion. It was further observed that recruitment was made in a hurry. Financial loss was caused by putting unnecessary burden on the State exchequer by recruiting Sub Inspectors. Persons responsible for the above acts were the then Chief Minister, the then Finance Minister and Director General of Police. However, it was held that no extraneous factor was suggested against any person. Elections to the State Assembly were announced on 17.12.2004 and the Model Code of Conduct came into force. Appointments were made in violation of the Code of Conduct. The list of candidates was received on 18.12.2004. Reliance was also placed on judgment of 7 LPA No.96 of 2009 and connected appeals this Court dated 9.1.2006 in CWP No.248 of 2006 (Sanjay Kumar and others v. State of Haryana and others) upholding order of termination of Constables recruited for HSISF, which force was later disbanded. In the said judgment, it was observed that in absence of any requirement for employment by the State, appointments were illegal and could be cancelled. 6. The writ petitions came up for hearing on 18.10.2006 when it was directed that a detailed affidavit be filed disclosing the number of vacancies of Sub Inspectors of Haryana Police existing on the date of advertisement dated 7.8.2004 and number of vacancies in October 2005 when order terminating services of appellants was passed. Accordingly, an affidavit dated 8.10.2006 was filed by the Principal Secretary to the Government of Haryana, Home Department, inter-alia, stating that there were only 9 vacancies of Sub Inspectors as on 7.8.2004 but as in October 2005, 62 posts meant for direct recruitment under Rule 12.3 of the Police Rules were available. Requisition sent to the 8 LPA No.96 of 2009 and connected appeals Staff Selection Commission was for 80 posts for the HSISF and India Reserve Battalion out of which seven posts were for Sub Inspectors in Haryana Police. The Staff Selection Commission wrongly advertised posts for Sub Inspectors for Haryana Police. Clarification was sought from the Staff Selection Commission on 6.11.2006 to which the said Commission vide letter dated 8.11.2006 replied that though, requisition received was for appointments to State Industrial Security Force and India Reserve Battalions, apart from seven posts of Sub Inspectors in Police Force, in the advertisement, inadvertently, all the posts were mentioned as being for Haryana Police. Thereafter on 22.11.2006, further direction was issued by this Court requiring explanation for the variance in different affidavits about the vacancy position. As per affidavits filed by various Inspector Generals of Police in the State under the direction of this Court, the figure of vacancies of Sub Inspectors in the Haryana Police was worked out to be 92 on the date of appointment for the direct quota while as per affidavit of 9 LPA No.96 of 2009 and connected appeals the Home Secretary, number was different. In further affidavit dated 12.12.2006, clear and precise figure of vacancies is not mentioned. 7. The learned Single Judge held that though seven of the writ petitioners were entitled to be reinstated on the ground that they had resigned from regular government service for applying for these jobs, there was no illegality in termination of services of the appellants. Reliance was placed on judgment of this Court in Sanjay Kumar (supra). 8. We have heard learned counsel for the parties. 9. Learned counsel for the appellants submitted that there was no scope for any mistake as pleaded. The advertisement was clear and specific. After holding written test, interview and selection, not only appointment letters were given, training for about six months was also imparted. In any case, the appellants were not party to any such mistake and even as per the report of the Commission of Enquiry, there was no extraneous consideration in their appointments. Posts were available on the date of appointment as well as on 10 LPA No.96 of 2009 and connected appeals the date of passing of order of termination. The said vacancies were sought to be filled up by fresh advertisement, after terminating services of the appellants. Advertisement notifying 100 vacancies was placed on record vide C.M.No.19548 of 2007 as mentioned in para 18 of LPA No.96 of 2009. There was no justification for passing the order of termination. Plea of Model Code of Conduct could also not be a ground to justify the termination of services of appellants. The object of Model Code is to regulate the conduct of persons contesting elections. Violation thereof may be a ground to take any action by the Election Commission but will not per se invalidate the appointments. In any case, the appointments were not terminated immediately after election. Once appointments were openly advertised and made, posts were available, appointees were qualified and were duly selected, they had not committed any misconduct or fraud, the same could not be annulled. In such a case, concept of estoppel was attracted. Learned counsel for the appellants has relied 11 LPA No.96 of 2009 and connected appeals upon following judgments in support of his submissions:- i) H.C.Puttaswamy and others v. The Hon’ble Chief Justice of Karnataka High Court, Bangalore and others, AIR 1991 SC 295, Para 13. To submit that appointment having been made, termination was not called for if vacancy was available. ii) Director S.C.T.I. for Med. Sci. and Tech. and another v. M.Pushkaran,AIR 2008 SC 559 To submit that even if there was no right to seek appointment against a vacancy, there should be some reason for not giving appointment. iii) State of Punjab and others v. Harcharan Singh and others, Civil Appeal No.3521 of 2006, decided on 7.2.2007. To submit that after the election, the selected persons could not be denied appointment on the ground of Model Code of Conduct. 10. Learned counsel for the State supported the impugned judgment by submitting that the State had absolute right to abolish the posts and that appointments having been made for HSISF and the said force having been disbanded, orders of termination were fully justified. Learned counsel for the State has relied upon following judgments in support of his submissions:- 12 LPA No.96 of 2009 and connected appeals i) M.Ramanatha Pillai v. The State of Kerala and another, (1973) 2 SCC 650; ii) State of Haryana v. Shri Des Raj Sangar and another,(1976) 2 SCC 844; iii) Rajendra and others v. State of Rajasthan and others, (1999) 2 SCC 317; iv) Avas Vikas Sansthan and another v. Avas Vikas Sansthan Engineers Assn. and others, (2006) 4 SCC 132; v)All India ITDC Workers’ Union and others v. ITDC and others, (2006) 10 SCC 66. vi) State of Haryana and others v. Navneet Verma, (2008) 2 SCC 65. To submit that abolition of posts was exercise of sovereign power and was not hit by principle of estoppel. 13 LPA No.96 of 2009 and connected appeals vii) Hoshiar Singh v. State of Haryana and others, 1993 Supp (4) SCC 377. viii)Virender Singh Hooda and others v. State of Haryana and another, (2004) 12 SCC 588. ix) Jitendra Kumar and others v. State of Haryana and another, (2008) 2 SCC 161. To submit that appointment beyond advertised posts was not permissible. x) P.V.Jagannath Rao v. State of Orissa, AIR 1969 SC 215 To submit that exercise of power for a purpose not authorized by law was without jurisdiction. 11. The question which arises for consideration is whether the impugned order of termination could be upheld on the ground that requisition by the State was for Industrial Security Force and not for the Police Force and the Industrial Security Force stood disbanded. 12. Having duly considered the rival submissions, we are of the opinion that appointments having been made in pursuance of an open advertisement for posts of Sub Inspectors in Haryana Police by following the 14 LPA No.96 of 2009 and connected appeals procedure of written test and interview and vacancies for the said posts being available, the persons appointed who had also undergone training could not be thrown out on the ground of disbanding of the Industrial Security Force. It is not the case of the State that the selection process was fraudulent or that the appellants are not eligible or were not qualified. As regards the Commission of Enquiry, there is no finding of extraneous consideration. In any case, the posts of Sub Inspectors in Police also being available, merely because Industrial Security Force was disbanded, could not by itself be a ground to terminate services of the appellants. The judgment in Sanjay Kumar (supra) is distinguishable as in the advertisement for the posts of Constables, the recruitment was for the Industrial Security Force while in the present case, advertisement was for police force. 13. We may now refer to the judgments relied upon by learned counsel for the parties. 15 LPA No.96 of 2009 and connected appeals 14. In HC Puttaswamy (supra), it was observed that the appointment having been made, hardship in passing order of termination ought to be taken into account even if there was any irregularity. In M.Pushkaran (supra), it was observed that even if there was no right to seek appointment, there should be valid reason for not giving appointment to a person duly selected. In Harcharan Singh (supra), it was observed that after the election, plea of Model Code of Conduct did not survive. 15. We need not discuss the judgments in greater detail in view of our finding that decision to terminate only on the ground that Industrial Security Force was disbanded, was not valid. 16. Coming now to the judgments relied upon by learned counsel for the State, we hold that no doubt it was a matter of administrative policy to create or abolish posts, the said judgments are not applicable to the present case. Even if HSISF was disbanded, the appointment and selection of the appellants was not for 16 LPA No.96 of 2009 and connected appeals the said posts. We are not concerned with the validity of decision of the authority regarding the said posts but to the termination of the appellants who were never appointed to the said posts but to the police force. As regards judgments dealing with the question of there being no right to posts which were not advertised, the posts in question were duly advertised and appointment of the appellants was against the advertised posts. The judgments are, thus, distinguishable. 17. The question has, thus, to be answered in favour of the appellants and against the State. The impugned orders are liable to be set aside. Learned counsel for the appellants fairly stated that in case of reinstatement, the appellants will not insist on financial benefits but only continuity of service. 18. Accordingly, these appeals are allowed, the impugned orders are set aside and the State is directed to pass a fresh order in accordance with law within one month from the date of receipt of a copy of this order. 17 LPA No.96 of 2009 and connected appeals (Adarsh Kumar Goel) Judge September 1, 2009 (Daya Chaudhary) ‘gs’ Judge 18