IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1. CWP. No. 14103 of 2008 Date of Decision: 17.9.2010. Devi Lal Sihag and others --Petitioners Versus State of Haryana --Respondents 2. CWP. No. 14232 of 2008 Yogesh Kumar Mehta and another --Petitioners Versus State of Haryana --Respondents 3. CWP. No. 14081 of 2008 Satish Kumar Jain --Petitioner Versus State of Haryana --Respondents 4. CWP. No. 14114 of 2008 Subhash Chand Gaba and another --Petitioners Versus State of Haryana --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Ashok Aggarwal, Sr. Advocate with Mr. J.S. Sidhu, Advocate. Mr. Suman Jain, Advocate. Mr. Rajiv Atma Ram, Sr. Advocate with Ms. Sunita Chauhan, Advocate. Mr. H.S. Hooda, Advocate General, Haryana with Mr. R.S. Kundu, Addl. A.G., Haryana. *** PERMOD KOHLI.J (ORAL) Questioning the validity, legality and propriety of order dated CWP. No. 14103 of 2008 -2- 5.8.2008 passed by the Govt. of Haryana (Annexure P-11) (hereinafter referred to as the impugned order), these writ petitions have been filed for its quashment and other directions. The impugned order being common in all the writ petitions, these petitions were heard and are being disposed of by this common order. The facts are being noticed from CWP No. 14103 of 2009. These petitioners were working in different capacities in the State of Haryana. They were selected and consequently appointed to Haryana Civil Services (Executive Branch) (hereinafter referred to as the service) from Register A-1, A-II and C on 4.10.2004 in terms of Rule 5 of the Punjab Civil Services (Executive Branch) Rules, 1930 (hereinafter referred to as the Rules) as applicable to the State of Haryana. Their appointment was in consultation with the H.P.S.C. (hereinafter referred to as the Commission). The petitioners were placed on probation for one year under Rule 22 (1) of the rules. Petitioners completed 3 years and 10 months service on their selection/appointment and thus completed the probation period. However, no formal order of their confirmation came to be passed. Options were sought from the petitioner vide communication dated 7.8.2005 for their confirmation under Rule 3.15 (b) of the Punjab Civil Services Rules Vol.I Part II and the petitioners conveyed their options for such confirmation. The State fixed the pay of the petitioners by granting two increments in advance on passing of the departmental examination, a pre-condition for such confirmation. All the petitioners claim to have qualified the departmental examination entitling them confirmation to the service. A tentative seniority list of the members of the service also came to be issued vide order dated 12.12.2006. CWP. No. 14103 of 2008 -3- While the petitioners were performing their duties as H.C.S Officers, they were served with show cause notice dated 17.4.2007 to show cause why they be not repatriated to their parent departments. The petitioners were communicated that the State Govt. has re-determined the cadre strength of the service and the same has been reduced from 300 posts to 230 posts rendering 19 vacancies non-existent and surplus, necessitating repatriation of the petitioners to their parent cadres. It was indicated in the show cause notice that the surplus vacancies include 8 from A-1 Register (District Revenue Officers, Tehsildars and Naib Tehsildars), 6 vacancies from A-II Register (members of Class-III service) and 5 vacancies from Register C (B.D.Os and Panchayat Officers). Replies of the petitioners were sought within 15 days from the receipt of the aforesaid show cause notice. Petitioners challenged the aforesaid show cause notices before this Court in CWP No. 6578 of 2007. Repatriation of the petitioners was stayed vide order dated 3.5.2007. Finally, the said writ petition came to be disposed of vide order dated 20.12.2007 and petitioners were relegated to the remedy of filing objections to the show cause notice within 10 days and the Chief Secretary to Govt. Haryana was directed to pass a speaking order meeting all the objections raised by the petitioners. It was further directed that in case any adverse order is passed, it will not be acted upon for a period of 10 days. As a consequence of the aforesaid order petitioners submitted their objections dated 16.5.2008 indicating the details of the vacancies under various registers and pleaded that their appointment is still within the reduced cadre strength and they cannot be declared as surplus. It appears that the replies of the petitioners did not weigh with the respondents. Resultantly the impugned order dated 5.8.2008 came to be CWP. No. 14103 of 2008 -4- passed. When these writ petitions were filed, reversion of the petitioners was stayed vide order dated 11.8.2008 till the next date of hearing while putting the State to notice and inviting objections. Respondents were directed to file a detailed affidavit giving break up of the cadre posts registerwise. Interim order came to be continued from time to time. The State-respondents filed a detailed reply in CWP No. 14103 of 2009 besides two more affidavits dated 13.8.2008 and 17.8.2009 of one Sh.P.Raghavindra Rao, Special Secretary to Govt. Haryana, Personnel Department. Stand of the respondents in the impugned order as also the reply/affidavits is briefly noticed hereinafter. It is stated that the total authorized strength of the service was 240 posts as fixed by the Govt. of Haryana vide order dated 7.11.1990. A cadre review was due in the year 2002. A Cadre Review Committee was constituted by the Govt. The Committee considered the requirement of posts received from various departments and also the representation of the Haryana Civil Services (Executive Branch) Association. The Association requested for 48 posts to the cadre. The request was accepted by the Committee and recommended 198 posts and total authorized cadre strength as 271. The Govt. accordingly decided to increase the cadre strength from 240 posts to 300 posts. Accordingly, the cadre strength was fixed at 300 posts vide Haryana Govt. order dated 18.11.2003. It is further stated that the Govt. decided to fill up 77 vacancies including 16 vacancies from the earlier year from Register B of the accepted candidates on the basis of the competitive examination. 61 CWP. No. 14103 of 2008 -5- vacancies became available from various registers due to increase in the cadre strength from 240 to 300 posts. Out of these 61, 19 vacancies became available on account of increased strength in the following manner:- Sr. No. Register Number of vacancies Category of officers 1. A-1 8 vacancies District Revenue Officers, Tehsildars and Naib Tehsildars. 2. A-II 6 vacancies Members of Class-III service. 3. C 5 vacancies Block Development Officers and Panchayat Officers. On completion of the process of selection, 19 officers from these registers were appointed. Out of 19 officers 2 officers expired and one reverted back to the parent department due to fake B.A. Degree certificate. In respect to the vacancies from Register-B, it is stated that 42 vacancies for Register-B became available on account of increase in the cadre strength and 16 vacancies of earlier year were advertised by the Commission for direct recruitment and recommendations were made in December, 2004. In the meantime, in the year 2005 the Govt. reviewed the cadre strength of the service and it was observed that the cadre strength was artificial and not commensurate with the requirements of the administration. Therefore, the Govt. vide order dated 13.5.2005 re-determined the cadre strength and fixed the same as 230 posts including 10 additional posts for unforeseen demands. Thus, the cadre strength was reduced from 300 to 230 posts. The recommendees of the Commission against the direct recruitment quota (Register-B) could not be appointed on account of reduction in cadre strength. They filed various writ petitions including CWP Nos. 2897 of 2005 and 6099 of 2005 Mahinder Singh Vs. State of Haryana and others and they sought their appointment on the basis of their CWP. No. 14103 of 2008 -6- selection/recommendation by the Commission. They also challenged the Govt. order re-fixing the cadre strength from 300 to 230. These writ petitions were dismissed by the High Court vide order dated 12.10.2006 upholding the validity of the Notification dated 30.5.2005, re-fixing the cadre strength and also held that selectees have no right of appointment. The petitioners therein filed S.L.Ps before the Hon'ble Supreme Court and Civil Appeals came to be dismissed by the Hon'ble Supreme Court vide judgement dated 11.12.2007. It is further stated that after the judgement of the High Court the Govt. considered the entire matter and found that 19 vacancies against which the petitioners herein were appointed have gone non-existent due to reduction of the cadre strength from 300 to 230 and thus the 19 officers who were appointed on 4.10.2004 were rendered surplus and it was decided to repatriate them. Accordingly, after giving show cause notice the order of their repatriation has been passed. In sum and substance the contention raised on behalf of the respondents can be summed up in the following manner:- (i) Validity of Notification dated 13.5.2005 reducing the cadre strength from 300 to 230 stands upheld by the High Court in case of Mahinder Singh (supra) in judgement reported as 2001 SCT 579 and judgement of Hon'ble Supreme Court reported as 2008(2) SCC 161. (ii) Petitioners' appointment was against the increased vacancies from 240 to 300. On reduction of the cadre strength from 300 to 230 the vacancies stand abolished and thus the petitioners are rendered surplus. (iii) Even if, the vacancies are available, petitioners have no right as their appointment was against the vacancies created on account of the increase of cadre strength from 240 to 300, the strength having been reduced, their appointments become surplus. CWP. No. 14103 of 2008 -7- To the contrary the contentions of the petitioners are as under:- (i) On increase of the cadre strength, additional vacancies are added to the total cadre of service. (ii) On appointment, the petitioners became members of the cadre of service irrespective of the source. (iii) Even after the reduction of the cadre strength from 300 to 230, the petitioners' appointment remained within the reduced cadre strength on account of availability of sufficient number of vacancies from different sources (Registers). Appointment to the service is governed and regulated by the statutory rules namely Punjab Civil Services (Executive Branch) Rules, 1930. Some of the relevant provisions of the rules are noticed hereunder:- “ 2(c) “The Service” means the Haryana Civil Service (Executive Branch).” xxx xxx xxx “3. Strength of cadre-(1) The strength and composition of the Haryana Civil Service (Executive Branch) Cadre shall be such as may be determined by the Govt. from time to time. (2) The Govt. shall, at the interval of every three years, re- examine the strength and composition of the Haryana Civil Service (Executive Branch) cadre and may make such alterations therein as it deems fit: Provided that nothing in this rule shall be deemed to affect the power of the Govt. to alter the strength and composition of the cadre at any time.” xxx xxx xxx 5. Members to be appointed by the Governor of Haryana from among accepted candidates- Members of the service shall be appointed by the Governor of Haryana from time to time as required from among CWP. No. 14103 of 2008 -8- accepted candidates whose names have been duly entered in accordance with these rules in one or other of the registers of Accepted Candidates to be maintained under these rules: Provided that if in the opinion of the State Govt. the exigencies of the service so require, the State Govt. may make special recruitment to the service by such methods as it may be notification specify, after consultation with the Public Service Commission.” xxx xxx xxx 6. Registers to be maintained-The following Registers of Accepted Candidates shall be maintained by the Chief Secretary, namely:- (a) Register A-I of District Revenue Officers, Tehsildars and Naib Tehsildars accepted as candidates; (b) Register A-II of members of Class III service accepted as candidates; (c) Register-B of persons accepted as candidates on the result of a competitive examination; and (d) Register C of Block Development and Panchayat Officers.” xxx xxx xxx 17. Appointment of registered candidates to service- The Governor of Haryana shall ordinarily make appointments to the service in pursuance of rule 5 from amongst candidates whose names are entered in the various registers in rotation as follows:- From Register B two candidates From Register A-I one candidates From Register B two candidates From Register A-II one candidate From Register B three candidates From Register A-I one candidate CWP. No. 14103 of 2008 -9- From Register B two candidates From Register A-II one candidate From Register C one candidate From Register B three candidates From Register A-I one candidate From Register B two candidates From Register A-II one candidate From Register B two candidates From Register A-I one candidate From Register B three candidates From Register C one candidate and thereafter in the same rotation beginning again from Register-B.” xxx xxx xxx 20. Seniority of members of service-(1) The seniority of members appointed to the service shall be determined from the date of their appointment; Provided that the order of merit determined by the Public Service Commission or the Selection Committee as the case may be, in respect of persons appointed from registers prescribed in rule 6 or through special recruitment under the proviso to rule 5 shall not be disturbed. (2) If the name of a candidate is removed from the register of accepted candidates or the list of special recruits or the order of appointment is cancelled under the provisions of rule 19, and such candidate is subsequently appointed to the service, his seniority shall be determined from the date of such subsequent appointment.” xxx xxx xxx 23. Services of members on probation liable to be dispensed with for unsatisfactory work or conduct-If, in the opinion of the Governor of Haryana, the work or conduct of a member appointed to the service during the period of probation is not satisfactory, he may- CWP. No. 14103 of 2008 -10- (a) if such member is recruited by direct recruitment, dispense with his service; and (b) if such person is appointed otherwise than by direct recruitment, (i) revert him to his former post; or (ii) deal with him in such other manner as the terms and conditions of his previous appointment permit.” xxx xxx xxx 24. Substantive permanent appointment- On the completion of the period of probation prescribed by or determined by the Governor of Haryana under the provisions of rule 22, a member of the service shall be qualified for substantive permanent appointment provided he has passed the departmental examination by the higher standard”. From the pleadings of the parties and the documents placed on record, following admitted facts emerge:- (i) Cadre strength of service was increased from 240 to 300 posts vide order dated 18.11.2003. Petitioners were appointed on 4.10.2004 against 16 vacancies from Register A-1-8, A-II,-6 and Register C-5. (ii) Petitioners completed probation period. Their salary has been re-fixed and they are included in the tentative seniority list. No order of dispensation of their services during and after probation was passed. (iii) Cadre strength was reduced from 300 to 230 vide order dated 13.5.2005. (iv) 42 direct recruits from Register-B were recommended for appointment by the Commission in December, 2004. Undisputedly, the petitioners and three other candidates were appointed against 19 vacancies from Register A-1, A-II and C as per the details given herein above on 4.10.2004 in accordance with the prescribed procedure, whereas 42 candidates against direct recruitment quota from Register-B, who were selected and recommended by the Commission were CWP. No. 14103 of 2008 -11- not appointed. In CWP No. 6499 of 2005 Mahender Singh Vs. State of Haryana and others and CWP No. 28997 of 2005 Chandi ram Vs. State of Haryana and others the recommendees of Commission challenged the action of the respondents in not offering the appointment to them and sought a direction for their appointment against the notified vacancies. They also challenged the Govt. order dated 13.5.2005 reducing the cadre strength from 300 to 230. These writ petitions were dismissed with the following observations:- “ It would, therefore, not be possible to accept the submission of the learned counsel for the petitioners that there has been any unfair motive in the issuance of the Notification dated 13.5.2005 by the respondents to fix the cadre strength. We are also unable to say that the redetermination and determination of the cadre strength is contrary to Rule 3 of the 1930 Rules.” xxx xxx xxx 32. Since there are no vacancies, no Mandamus can be issued to the respondents to appoint the petitioners. We have noticed that the efficacy of the entire selection has been doubted and enquiry is being conducted by the State Vigilance Bureau. This apart, it has been the consistent view of the Supreme Court that mere selection for appointment does not create a legal right which can be enforced by issuance of a writ in nature of Mandamus.” The aforesaid judgement was challenged before the Hon'ble Supreme Court. On consideration of the issue, the Hon'ble Supreme Court affirmed the judgement of the High Court with the following observations:- CWP. No. 14103 of 2008 -12- “ 35. We also do not see any reason to interfere with the impugned Notification dated 13.5.2005. What would be the need of the State and how an administration shall be run is within the exclusive domain of the State. The power of judicial review in such matter is very limited.” xxx xxx xxx 42. The legal principle obtaining herein is not in dispute that the selectees do not have any legal right of appointment subject, inter alia, to bona fide actin on the part of the State.” Based upon the judgement of the High Court and of the Hon'ble Supreme Court in case of direct recruits, wherein the Hon'ble Supreme Court not only upheld the validity of the Notification dated 13.5.2005 reducing the cadre strength but also ruled that the selectees have no right of appointment particularly in absence of the vacancies. Mr. H.S. Hooda, learned Advocate General, Haryana has forcefully contended that once the reduction in cadre strength is upheld by Hon'ble Supreme Court, all those selectees/appointees against the vacancies reduced from the cadre strength by virtue of above notification have to go. It is contended that since the appointment of the petitioners was against the additional vacancies on increase of the cadre strength from 240 to 300 and these vacancies now having been abolished vide Notification dated 13.5.2005, the appointees cannot remain on the posts. According to Mr. Hooda the issue having been determined by the Hon'ble Supreme Court in Mahender Singh's (supra) case, this Court should not re-determine the issue. I have carefully considered the judgement of this Court in Mahender Singh's case and judgement passed by the Hon'ble Supreme CWP. No. 14103 of 2008 -13- Court. Two issues were raised in those cases. (i) The validity of the order of reduction in the cadre strength. (ii) The right of the selectees/recommendees by the Commission to appointment. Definitely the Govt. order reducing the cadre strength has been upheld. It is equally true that the Hon'ble Supreme Court has denied the appointment to the recommendees despite their selection on account of non- availability of the vacancies for direct recruits as a result of the reduction in the cadre strength. The aforesaid judgement can only be put into aid by the State in so far the question of reduction of cadre strength is concerned. This Court by no stretch of imagination can go into the question of vailidity of the reduction of the cadre strength, the controversy having been finally settled by the Hon'ble Apex Court. As a matter of fact, this issue need not to be gone into. Petitioners in these petitions are not seeking determination of question of reduction of the strength de novo. To the contrary, the petitioners have accepted the reduction of the cadre strength. Their contention is that their appointment is within the reduced cadre strength. Thus, Mr. Hooda's contention not to examine the claim of the petitioners in view of the judgement of the Hon'ble Apex Court in Mahender Singh's case (supra) is irrelevant. The second contention of Mr. Hooda that selectees/recommendees have no right of appointment as held by the Hon'ble Supreme Court in view of the non-availability of the vacancies has to be seen on the basis of the admitted facts on record. In Mahender Singh's case the petitioners were the direct recruits. They were only selected and recommended for appointment and never came to be appointed allegedly due to non-availability of the vacancies from Register-B as a consequence of reduction in the cadre strength. The Hon'ble Supreme Court was only CWP. No. 14103 of 2008 -14- examining the claim of direct recruits on the basis of the pleadings in those cases. The judgement in Mahender Singh's case cannot come to the rescue of the respondents in view of the admitted factual position. Firstly the petitioners stood appointed on their selection. They were in service for a period of 3 years and 10 months when the impugned order declaring them surplus came to be passed. To deny appointment on account of non- availability of vacancies is one thing and to declare a Govt. employee as surplus on account of abolition of post is a different situation. To fair understanding of the contention of Mr. Hooda suffice it to say that both the contentions of Mr. Hooda are not sustainable both on facts and in law. Petitioners were never denied the appointment on account of non- availability of the vacancies. Rather they were appointed against the vacancies borne on the cadre of the service. Even after the reduction in the cadre strength and abolition of as many as 70 posts, the petitioners continued to hold and occupy the vacancies belonging to their quota, which are still in existence and within the reduced cadre strength of the service reference to the same shall be made hereinafter. Thus, the judgement in Mahender Singh's case has no impact on the petitioners' claim to continue in the service. To consider the next contention of Mr. Hooda that with the reduction in cadre strength, the vacancies against which the petitioners were appointed, stand abolished, it is necessary to delve in depth the vacancy position as on the date of appointment of the petitioners and the date when the cadre strength came to be reduced. Both the sides have given the details of the vacancy position in their respective pleadings and supplementary/additional affidavits. Essentially these details need to be CWP. No. 14103 of 2008 -15- examined. In the short affidavit of Sh. P.Raghvendra Rao, Special Secretary to Govt. Haryana, Personnel Department dated 13.8.2008 the vacancy position from different registers has been indicated in the following manner:- VACANCY POSITION Sr.No. Date of appointment to H.C.S. (E.B.) 4.10.2004. Date of cadre reduction. 13.5.2005 Date of show cause notice 17.4.2007. Date of passing the impugned order dated 5.8.2008. 1. Register B-19 Register A1-Nil Register AII-Nil Register C- Nil Register B -18 Register A1-Nil Register A-II-Nil Register C- Nil Register B-30 Register A1-01 Register A-II- Nil Register C - Nil Register B-36 Register A1- 2 Register A-II- 1 Register C - Nil On the basis of the aforesaid vacancy position, it is stated that on behalf of the State that as against 220 posts, 197 officers are in position including 16 who have been ordered to be reverted to their parent departments. If, the 16 appointees are reverted, a total of 181 officers will remain in position and only 39 vacancies would be available to the State out of which 36 are from Register B, 2 from Register A-1 and 1 from Register A-II. It is further stated that in CWP No. 14129 of 2004 titled as Ram Singh Vs. State of Haryana a direction has been issued to C.B.I to look into the entire process vide judgement dated 1.9.2005. However, the inquiry by C.B.I has been stayed by the Hon'ble Supreme Court on 18.11.2005 in an S.L.P filed