417 3 Xsl IN TF 1UGH COURT OF PUNJAB HARYANA AT CHANDIGARH 1 CWP No 34290f2009 Date Dhanna Singhand others Petitioners Versus 1 StateofHaryana and another 1 2 CWP No 53 of2009 DarshanSinghand others Petitioners 0 C0 Versus I C5 Stateof Haryana and another I CORAM HONBLE MRJUSTICE PERMOD KOHLI Z Present Mr RajivAtma Ram Sr Advocate with Mr Vikas Kuthiala Advocate C Mr RS Mittal Sr Advocate with Mr Sudhir Mittal Advocate and I Mr Atul Gaur Advocate 08 0 Mr RS Kundu Addl AG Haryana mmo 8 84 Z PERMOD KOHLIJ IORALI tl Thepresentpetitions are 5 in the seriesof litigationarisingout of selection of Clerks made in the year 1999 It is essential to notice the factual leadingto the filingof the presentpetitionsSince the facts and law pointsinvolved are common both thesepetitions were heard and are beingdisposedofbythis common order C The Service Selection Board Haryanaissued Advertisement NoA of 1987 dated 2271987 inviting for recruitment of Clerks for various of the Stateof HaryanaPetitionersin these petitions appliedin responseto the said advertisement It is positivecase of thepetitioners thattheir names were included in the merit list dated Parkash Om 2014.03.07 14: 58 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 418 Il v 1 CWP No 3429 of2009 e 1 150989 wherein total number of 5373 candidateswere selected The Stateof Haryana candidatesup to merit no 4645 It is alleged that petitioners merit in the sele2tlist was abovethe last appointee at merit 4 In noA645but despite ofthat theywtredenied byadoptingpick and choosepolicyin a totalmalafideand illegalmanner The petitioners 1 tr accordingly filed CWP No 8187 of 1990titled as SudeshKumari Vs State 0 of HaryanaThis wnt petitionwas allowed by a Division Bench of this 0 Court The ofthe Division Bench is reported as 1991 lI SCT I C0 322 While allowingthewrit petitionfollowingdirections were issuedl 6 By directingthe Board at this stageto recommendthe Z names of thepetitioners and other similarlysituatedpersonwho are higher 2 in merit and whose names have been received back from the as I theycould not be appointed would at this juncturedisturb the personswho otj 00 havealreadybeen appointed in the other who are thoughlower mW3 in merit We would not like to disturb such person who have been Z appointed in the other who are lower in merit Under the Clrcumstances we direct that from now onwards whenever a requisition 1S received from any for flllingthepostsofClerks all personswho are higherin merit as compared to the last person who mighthave been the selection list prepared on 15 October 1989 would not lapse of any instructions to the contraryissued by the State of eee Haryanaif any This attainedfinalityin absenceof any challenge to the same In the meantime another writ petitionBijenderSinghand othersVs StateofHaryana and otherscame to be filed beforethis Court Parkash Om 2014.03.07 14: 58 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 41 419 t 0 1V 1 0 CWP No 3429 of2009 3 seeking of the waitinglist of Clerks out of the select list dated 150989 The Statein replyto e aforesaidwrit petitionrefened to the ln Sudesh Kumaris case The bench hearingthe Bijender SingWs case referredthe matter to a LargerBench A Full Bench of this Court in BijenderSinghscase reported as 19943 SCT 382 while m C with the directions ln Sudesh Kumaris case regarding the 0 survivalofthe list issuedfollowing directionsl C 19 Havingconsideredthe matter and keepingin view the I C peculiarfactsofthis case we hold that I 6i1 The Selection Board cannot makethe selection in excess ofthe Z numberofpostsfor which a requisition has beenplacedbefore it The waitinglist prepared bythe Board hasto be confined to 2 the numberprescribed bythe Govt ii The selectedcandidatesdo not have any idefeasiblerightto be appointed to the postsfor whichtheyhavebeen selected 08 ClO iii The directionsgivenbythe bench in SudeshKumaris case particularly to the effect that the selectionlist prepared on m October 15 1989would not lapseare not in conformity with Z law iv The respondenttate examinethe cases of persons who were appointed even thoughtheyhad not attained the requisite percentage of marksfor inclusion in the merit list and were not within the number of postsfor which a requisition had been sent to the Board It would passordersin accordance with law Vl The list prepared bythe Board on October 15 1989 was valid for a periodof one year If a candidatewhose name appeared e uptoSr No 662 hasnot been so far the Stateshall consider his claim and appointhim All vacanciesarisingfrom October15 1990 onwardsshallbereeadvertisedand recruitmentagainst thosevacanciesshall be made from amongst the selectedcandidates The Board did not recommendany name out of the select list of 15 10989 and issued another Advertisement No 9 of 1995 dated 1111995to fill up the availablepostsofClerks It appearsthat the Full Parkash Om 2014.03.07 14: 58 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 420 G 1 6 d J CWP No 3429of2009 1 4e Bench lll BijenderSinghscase was before the t Honble Supreme Court in various appealsIn case of Roshni Devi Vs State of Haryanaappeals were deided vide dated 189998 1 The Honble Supreme Court lilodlfied the Full Bench of this Court in BijenderSinghscase witli the followingdirectionsl a 44 We issue the followingdirections substitutionof the 111 0 directionsmadebytheHighCourt in the impugned C3 I 11 The alreadymadefrom out ofthe list on C 15101989 will not be anliulled 1 Z 62 The last personwho is statedto havebeen appointed beingat Sr No 4645 personsoccupying higherpositionthan him could Z be considered for appointment to the postofClerk ifthere existsany vacancy for them m L 3 The vacancy in this context would mean thevacancieswich C were availablein the Stateof Haryanapriorto the I advertisementissuedfor selecting persotis for the said postfor c5 the year 1995 It is to bemadeclear that ifno vacancies exiSt co on the aforesaiddate then no further wouldbe madefromout ofthe list prepared on 1510989 7 the directions ofthe Punjaband Hyana High Z Court in SudeshKumaris case f 49 Ifvacancies did exist on the dateas aforementionedthen the from out ofthe list prepared on 15101989 could be madestrictlyon the basisoftheir merit positionin the list 51 We strongly thepractice and preparing an unusually largelist compared to thevacancypositionand the StateGovt should either amendthe recruitmentrules in that respectandtill then should issuepositiveadministrative instructionsgivingtherightto the Selection Board to select onlysomepersonsin excess than the for which the eeeo Board is goingto select people 669 We also do not approveofthe inaction on the partof the State Govt in not assailing ofthe Punjab c Haryana HighCourt in SudeshKumaris case and now comingup before us making submissionsthatthe is practically incapable ofbeing It appearsthat the directions of the Honble Apex Court were not forcingthepetitioners to file a ContemptPetition No 203 Parkash Om 2014.03.07 14: 58 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 421 On J t8 CWP No 3429 of2009 5 1 9 of 1999 titled as Sita Ram Vs 2S Verma another before the Honble Supreme Court In responseto thec5ntempt notice thethen to the Govt ofHaryana filed an affidavitstatingthereinthat as many as 145 vacancies pertaining to the 1510989 to 1811 995 were ascertainedThe vacancieswere intimatedto the Board It is furtherstated 111the said affidavitthat 92 candidatbswere recommendedfor appointment 0 0 as Clerks in various againstthe select list dated 150989 111 0 C accordance with the merit 111 respective The affidavit lrther 0 discloses that names against25 vacanciescould not be recommendedowing C to of candidatespossessing higher meant for E r A ClassOffices Similarlyvacanciesbelonging to exvice man category P C 28 could not be filled up due to of the category C candidates In the meantime anotherContemptPetition No 4902 of 1998 8 Q titled as Sheila Devi and others Vs Vishnu Bhagwan 8eotherscame to be t 2 flled by43 of the presentpetitionersThe contemptpetition was disposed P 0 of with libertyto the forum vide order dated L 15122000 passedbythe Honble Court The presentpetitioners who were not appointed under anyof the categoriesOled another writ petitionbeingCWP No 2391 of 2001 titled as Ramesh Chand and others Vs State of Haryanaand others This writ petitionwas decided vide ew judgement dated1432002 with thefollowing directions 64 As this Court has already dealt with the matterand in order dated11122001 theHonble Judgehas clearlystatedthat he is primafacie satisfiedthat the writ petitionis indefensible and the petitionhas to be e allowed Thus thereis nothingleft for discussion in this petitionThe writ petition is allowed as per ofthe Honble ApexCourt and in Parkash Om 2014.03.07 14: 58 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 000 1 4 422 t 7 CWP No 3429 of2009 Vlew of the order of this Courlated 1122001 the are directedto complywith the orders of theHonble ApexCourt in Roshani Devis case dated1811998 in letterand spirit With the above observationsthe writ petitionis disposed of accordingly t Lr In the meantime the petitioners flled a mercy petitionbefore 0 the GovernorofHaryana on 2832003 prayingfor their against C the postsofClerks on the basisoftheir selection Office ofthe Governor of I C Haryanapassedthefollowing orderl I 5 HE the Governor todayie 2962004 has desired that Z Chief Secretaryto Govt Haryanabe asked to all the 43 n mercy petitioners on humanitariangroundsagainstthe vacancies in Govt I or in surplus poolofthe Govt c 6 As desired X aboveis submittedto HE the Governor 0 for vm Z Sdl DSRB Qm 292004 HE Govemor Approved enne Sdle117 SDle172004 It is stated that even the order of the Governor was not emented by the State The successor in the office of the Governor however reviewed the aforementioned order and passedthe following orderl Parkash Om 2014.03.07 14: 58 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 423 91 ee Y CWP No 3429 of2009 7 It would not be a standalone decision to offer to these43 applicants as thousandsof applicants placedsenior to them in the select list would to demanda similar relief and this would invite a spateof similar requestsopeninga Pandoras box resultingin severe legal for the State 33 1 f Present petitionshave been filed challenging the order dated 0 22004 passedbythe Gvernor of Haryanarejecting the mercy petitionin 0 Z review The petitioners have furthersoughtdirectionsfor their C5 in ofthe Honble ApexCourt Z The petitions are beingresisted and seriouslyopposedby the Z State of Haryanawhile admitting the sequence of events and directions issued bythe Court from time to time The standofthe is that X there are no vacanciesavailable to accommodatethepetitioners 111the light a5 r12 ofthe ofthe Honble Supreme Court in Roshni Devis case Vmo The has 61rther admitted that the Z recommendationsof the Board were not in accordance with the merit Q preparedby the Board and the recommendeeswere much beyondthe numberofpostsavailable with the It is also admittedposition t that some ofthe recommendeeswere at the bottomofthe select list ignoring 4V manyamongst1 100 meritoriouscandidates An additional affidavit dated 14122009 has been filed on behalf of the State The details of 145 vacancies identifted duringthe periodspecifiedby the Honble Supreme Court in Roshni Devis case has beengivenin thefollowing mannerl Parkash Om 2014.03.07 14: 58 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 424 41 f 1 CWP No 3429 of2009 8 U Gene SC BC ESM Total AClass 27 10 7 13 65 BClass 26 26 13 15 80 Totall 145 35 1 It is Slrther statedthat 22 vacanciesout of 145conveyed bythe C DeputyCossioner Bhiwani were not available same havingbeen filled 0 1 0 up duringthe periodfrom 1591989 to 301995 The Deputy I Commissioner Bhiwani vide lettersdated210999 and 2562001 clarified C5 that these 22 vacancies were shown to be existingdue to mistake The Z affidavit 8irther states that 1992 candidates were recommended for merit wise in 1999 and a8er 1992 recondees 31 vacancies remained of A Class Offices for which higher I 05 was requiredThe affldavit 61rtherstatesthat in view of the directions in 00 Ramesh Chanders case CWP No to be taken from page 769no distinction 7 Z could be made between A Class and B Class Offices and accordingly 31 Il balancevacancies were also recommended in 2002 category Wlse It is statedOlatexcluding 22 vacancieswrongly shown to beavailable by the office of DeputyCommissioner Bhiwani 111 vacancies already stand recommended though12 vacancles relatingto ESM category 94eeee remained vacant for of this categoryof candidates It is finallystated that no vacancyis available in terms of the directions in Roshni Devis case In the affidavit merit positionof thepetitioners is also indicated From the disclosure made it is evident that all the writ have merit higherthan the last selecteeat 4645 The havealso placedon recordthe names ofthe appointeeswho were appointed to the directions in Roshni Devis case against the available Parkash Om 2014.03.07 14: 58 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 425 4 4eP CWP No 3429 of2009 9 vacancies I have heard learned counsel for the partiesat length Followingquestions need to be determined 1e Validityofthe order ofGovernor in review 2 The ofthe order ofGovernor dated2962004 1 tr 3 ofthe directionsofthe Honble ApexCourt 111 Roshni Devis case 0 C Order of the Governor dated 22004 askingthe Chief I Secretary to appoint43 writ petitioners has been recalled by C0 I orderdated22004 bythe successor incumbentin the offlce It is argued Z that a successor cannot review the order To supporttheir contentions m reliance is placedupon a of the PrivyCouncil reported as AIR 1937PrivyCouncil 27 titled as RT Rangachari Vs Secretaryof State I 06 wherein it has beenheld as under1 0 In thesecircumstancesthe case becomesa case in which after V 2 Govt offtcials dulycompetentand duly authorized in that behalf have Q arrivedhonestly at one decision their successors in offlce afterthe decision has been acted upon and 1S 111effective operationpurportto enter upon a reconsiderationof the matter and to arrive at another and totallydifferent decision 17 r Following the aforesaiddecision a Division Bench ofthis Court 1111992 62 PLR 53 held that the decision once taken by a competent authoritycould not be reconsidered and recalled without affordingan ofbeingheard The has taken a stand that the order dated 2962001 was never communicated to the State and it was under this scenariothat the ChiefMinister ofthe State also passed order Parkash Om 2014.03.07 14: 58 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 426 t71 CWP No 3429 of2009 0 dated 2992008 agreeingwith the order of Governor dated 2282004 which order is also underchallenge in thepresentpetition Assumingthe order of the Governor dated 282004 is not according to law suffering from vlolationofthe principles ofnatural justice and want of valid reasonsthe obvious resultwould be the revival of the 1 r order dated 2962004 Thus the 2 questionwhich falls for consideration 0 1S the of the order dated 2962004 Vide order dated C I 2962004 the then Govemor onlyaccepted the mercypetitionand askedthe 0 I Chief Secretary to adjustthe 43 petitioners againstthe 8iture vacancies This order was nothing more than an administrativeorder Its Z through the Mandamus in exerclse of jurisdiction under Article 226 1S a doubt811propositionThe order came to be passed without the I rnerit positionof the 43 petitioners of their categoryand a5 ril without the vacancy positionIt would not be incorrect to say 7 that perhapsthe order may be in contravention to the judicialdirections Z issued in Roshni Devis case Under such circumstances even if the orders Qm of the Govemor passedin review and that of the Chief Minister dated 2992008 are set aside the l order of the Govemor dated2962004 is not enforceableby w5Mandamus Such a Mandamuscould be contraryto ttt 4 laWe Now the onlyquestionremainsto be decided111thesepetitions is the rightof thepetitioners for appointmentagainst the vacancles ln terms of the directionsof the Honble Supreme Court in Roshni Devis case The then Chief Secretary had indicated 145 vacancies identified duringthe period1581989 to 301995 in his affldavit dated300999 filed before the Honble Supreme Court in Contempt Petition No 203 of 1999 Parkash Om 2014.03.07 14: 58 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document 427 CWP No 3429 of2009 11 However in the affidavit dated 14112009 flled by Mr lvL Kaushik Joint Secretary to Govt Haryanabeforethis Court in CWP No53 of 2009 it has been finallyadmitted that 12 vacancies relatingto ESM categoryremained vacant due to noravailabilityof the candidates to this categoryIt hasalso been brought on record that none of thepetitionersbelong to ESM categoryMost of them are from generaland BC categoryand one from SC category 1 0 I haveperused the directionsin Roshni Devis case There was 1 0 no directionto make categoryWtse Assumingthe category C wise merit is to be adheredto admittedly no candidatein ESM categoryis eJsa available and 12 vacancies are still lying vacant out of the identified C5 naa vacancies There is no prohibitionfor dereservationof these vacancies Admittedlythe petitioners have had highermerit than a number of 2 appointeesDirections in Roshni Devis case were primarilyon account of violationof the merit positionAt least these 12 vacancies could be filled f bygrantingappoint to thepetitioners on thebasisof theirinr se merit 51 in thetotalmerit list eti These petitions are accordingly ofwith a direction to C3 the to appointthe petitionersagainst12 ESM category e vacancies on the basis of their inter se merit from the merit list dated 1 150989 The first 12 meritoriouspetitioners would be appointed against Daa thesevacancies ofthe categorywithin a periodoftwo months Copyof this be placed on each connectedfile 9 Ir 1 13QtAJJAA eae PERMOD KOHLII JUDGE 802010 lucky 8r4 Whether to be 1No 1 Cl Parkash Om 2014.03.07 14: 58 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:25 I attest to the accuracy and integrity of this document