IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 16016 of 2000 DATE OF DECISION: 3.12.2007 Jai Parkash and others …Petitioners Versus State of Haryana and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR Present: Mr. Rajiv Atma Ram, Senior Advocate, with Mr. Abhishek Shukla, Advocate, Mr. Ram Kumar Malik, Advocate, for the petitioners. Mr. Sanjiv Bansal, Additional AG, Haryana, for the respondents. JUDGMENT M.M. KUMAR, J. C.W.P. No. 16016 of 2000 This judgment shall dispose of C.W.P. Nos. 16016 and 16188 of 2000, 150, 1765 and 6341 of 2001, 6985 of 2004 and 8057 of 2005. However, the facts are being taken from C.W.P. No. 16016 of 2000. The petitioners have approached this Court seeking a writ in the nature of mandamus directing the respondent State to appoint them against the posts of Assistant Engineer (Civil) in the respondent Department in pursuance to their selection and recommendation made by the Haryana Public Service Commission. The Haryana Public Service Commission (for brevity, ‘the Commission’) issued an advertisement in English Daily ‘The Tribune, ‘Indian Express, Chandigarh’ on 17.7.1996, ‘Times of India’ on 19.7.1996,and Hindi Daily ‘Dainik Tribune, Chandigarh’ on 18.7.1996 for filling up 6 temporary posts of Assistant Engineer (Civil) Class-II in the P.W.D. (B&R Branch) Haryana, in the pay scale of Rs. 2200-4000 plus usual allowances as sanctioned by the Haryana Government. One post each was kept reserved for Scheduled Castes of Haryana (Block A) and Backward Class of Haryana. The age prescribed was not below 20 years and not more than 35 years as on 1.8.1996. Relaxation in upper age limit was admissible to various reserved categories as per Government instructions. The candidates were required to possess (i) Degree in Civil Engineering of a recognized University or one of the other equivalent qualifications in Civil Engineering as specified in Appendix ‘B’ to the HSE Class-II, PWD (B&R) Branch Rules, 1965 (Annexure P-1). Thereafter the Commission issued a corrigendum in 2 C.W.P. No. 16016 of 2000 September, 1999 for increasing the total number of posts for Assistant Engineer (Civil) P.W.D. (Buildings and Roads Branch) from 6 to 39 with the following breakup:- General 24 S.C. of Haryana (Block A) 4 S.C. of Haryana (Block B) 4 B.C. of Haryana 4 ESM of Haryana 2 Physically handicapped of 1 Haryana with 40% disability The last date of submission of applications was extended upto 30.11.1999 and the date for the purposes of age was fixed as 1.8.1999 instead of 1.8.1996. The petitioners being eligible submitted their applications. It is admitted position that they were called for screening test and after successfully clearing the same, interviewed by the Commission on different dates in March, 2000. The final result of the selection was published on 31.5.2000 (P-4). On 31.5.2000, the Secretary of the Commission sent a letter to the Financial Commissioner and Secretary to Government Haryana, P.W.D. (B&R) Department recommending the names of the candidates including the petitioners categorywise in order of merit for appointment to the post of Assistant Engineer (Civil) Class-II in P.W.D. (B&R) Department, Haryana (P-4/A). On 8.8.2000, letters were issued by the respondent Department to the Director, Health Services Haryana, Chandigarh, 3 C.W.P. No. 16016 of 2000 with a copy to the concerned selected candidates asking them to appear before the Director, Health Services for their medical examination (P-5). Similarly, letters were also issued to the concerned District Magistrates for verification of character and antecedents of the selected candidates for the post of Assistant Engineer for illustration, one such letter dated 10.8.2000 has been placed on record (Annexure P-6). It is pertinent to mention that respondent No. 1 issued an order dated 21.8.2000, mentioning therein that in pursuance of sub- rule 3 of Rule 5 of the Punjab Service of Engineers Class-II PWD (Buildings and Roads) Rules, 1965, the Governor of Haryana was pleased to promote 42 Junior Engineers (Diploma Holders) and 1 B.E./AMIE qualified member of Draftsman/Tracer Service as Sub Divisional Engineers on ad hoc basis as a stop gap arrangement for a period of six months in the scale of Rs. 8000-135000, in public interest subject to the approval of the Commission and with the condition that they were to be reverted to their original post as and when direct recruits join (P-7). Thereafter, the petitioners made representations Annexures P-8 (Colly) and even claims to have personally met with various concerned authorities but of no avail and ultimately instant petition has been filed on 22.11.2000. On 17.1.2001, a short written statement was filed by the Under Secretary to Government Haryana, Public Works (B&R) Department, Chandigarh, on behalf of respondent No. 1 taking the stand that no legal or fundamental rights of the petitioners have been 4 C.W.P. No. 16016 of 2000 infringed nor any substantial question of law has been raised by the petitioners. It was further pleaded that mere selection did not confer an indefeasible right to seek appointment. The factual matrix of case such as issuance of advertisement, corrigendum, increase of posts and recommendation of selected candidates by the Commission and filling up the posts from Junior Engineers and other categories as a stop gap arrangement was admitted in the aforementioned short written statement. It is pertinent to notice the stand taken therein concerning austerity measures in paras 5 and 6 of the short written statement, which is reproduced as under:- “ 5. In the mean time the State Govt. constituted a committee of Secretaries on 21.9.2000 for reviewing the work load norms of one Division of Engineering Department considering the inflationary trends which have been continuing during the last few years. The work load norms of this department were revised by the Haryana Govt. in the year 1984. It was further decided by the Govt. that pending this exercise no recruitment of Engineers at any level in any department should be undertaken. This order of the Govt. superceded all earlier orders of the Govt. whereby such recruitments had been permitted. This exercise regarding down sizing had been initiated by the Govt. in all the departments keeping in view the heavy expenditure of establishment in various departments. The review of deployment of excessive 5 C.W.P. No. 16016 of 2000 manpower had been necessitated due to technological breakthroughs and innovations made in the Electronic Sector and introduction of Computers and other such equipment in to Govt. Sector. In fact in some Govt. controlled Boards/Corporations etc., this exercise has already been completed. A committee of Secretaries was constituted for revision of workload norms of one Division of Engineering Department which has held 3 meetings under the Chairmanship of Financial Commissioner & Secretary to Govt., Haryana, Finance Department. The proceedings of these meetings are annexed herewith at R-I, R-II and R-III. First report of the Committee is enclosed at Annexure R-6. In view of the above developments the Govt. has reverted the Sub Divisional Engineers promoted vide Endst No. 4/50-B&R(E)-5/99 dated 21.8.2000 to the posts of Junior Engineers (diploma – holders) – AMIE/qualified – Junior Engineers, qualified Head Draftsman, B.E./AMIE qualified member of Draftsman/Tracers services vide order No. 4/50-B&R (E)-5/99 dated 16.1.2001 which is annexed at R-4. 6. In the meantime Govt. has revalidated the selection list of candidates recommended by Haryana Public Service Commission for appointment as Sub Divisional Engineers on 21.5.2000 for a further period of 6 C.W.P. No. 16016 of 2000 six months beyond 30.11.2000 for the purpose of appointment of selected candidates of the commission to the extent of advertised posts, if the need arises. A copy of this advice of Chief Secretary is annexed at R-5. Thus no prejudice is being caused to the petitioners.” A perusal of paras 5 and 6 would reveal that the stand of respondent No. 1 is that since a Committee of Secretaries was reviewing the work load norms of the department for down sizing of the establishment in the department keeping in view the inflationary trends, heavy expenditure of establishment, innovations made in the electronic sector and introduction of computers & other such equipment in to Government Sector etc., therefore, the petitioners were not appointed as the number of posts was likely to decrease. In order to substantiate this, proceedings of three meetings and first report of the Committee has been placed on record as Annexures R-I, R-II, R-III and R-VI respectively. The select list of candidates recommended by the Commission for their appointment as Sub Divisional Engineers on 21.5.2000 was revalidated for a further period of six months beyond 30.11.2000. At this juncture it would be relevant to refer to various interlocutory orders passed by this Court and the stand taken by the respondents from time to time. In this case notice of motion was issued on 23.11.2000. On 5.2.2001, learned State counsel made a statement that the State Government was considering the claim of the petitioners as the 7 C.W.P. No. 16016 of 2000 Committee had submitted its report which was under consideration. The respondent State had sought time to place before the Court the final position emerging out of adoption of austerity measures. On 21.3.2001, on the statement made by learned Advocate General, Haryana, a Division Bench of this Court passed the following order:- “ The learned Advocate General, Haryana has made a statement that State Council of Ministers has taken a policy decision for re-structuring of the Engineering Department which is likely to do away with certain un- necessary posts in the department. As a follow up action, some time is required to know if the petitioners have a chance for issuance of appointment letters. The learned Advocate General seeks time for making up the final shape of the decision of the Committee. As requested, two months time is given for final report of the Committee in respect of the re- structuring of the cadre strength of the P.W.D. department. Adjourned to 28.5.2001.” On 28.5.2001, further time was sought by the learned State counsel to place on record the final order supported by an affidavit. Thereafter the case was adjourned for 31.5.2001, 9.7.2001, 25.7.2001 and on 25.7.2001 the same was admitted. During the pendency of the writ petition, respondent No. 1 has sent a requisition to the Commission, vide letter dated 3.3.2006, 8 C.W.P. No. 16016 of 2000 for filling up 44 posts of Assistant Engineer (Civil) in Haryana PWD (B&R) Department. The petitioners then filed Civil Misc. Application No. 7543 of 2006 for staying the aforementioned requisition. On 30.5.2006, while dealing with C.M. No. 7543 of 2006, this Court passed the following order:- “ Reply to application on behalf of respondents filed in the court today, is taken on record. This is a Civil Misc. application for staying the requisition (Annexure A) whereby the Financial Commissioner and Principal Secretary, Government of Haryana Public Works (B&R) Department on 3.3.2006 made a requisition of 44 posts of Assistant Engineer (Civil) in Haryana P.W.D. (B&R) Department. Learned counsel for the petitioners contends that the posts of Assistant Engineers had earlier been duly notified by the Haryana Public Service Commission and the petitioners were recommended for appointment as Assistant Engineers. However, when the petitioners were not being appointed, the present petition was filed seeking issuance of a writ in the nature of mandamus to appoint the petitioners as Assistant Engineers. Now during the pendency of the writ petition, the requisition dated 3.3.2006 (Annexure A) has been sent and in case the said posts are filled up, the petitioners would suffer irreparable loss. 9 C.W.P. No. 16016 of 2000 In response learned counsel for the respondents has submitted that the posts which have been requisitioned in terms of Annexure A dated 3.3.2006 have nothing to do with respect to the posts against which petitioners have raised a claim, as these posts have arisen after the expiry of the validity period of the earlier select list. He has further referred to the order dated 4.2.2005 passed by this court in C.M. No. 2119 of 2005 filed in the present petition wherein this court observed that no ground to stay the order dated 17.1.2005 or grant the prayer for restraining the lapsing of the select list dated 31.5.2000 was made out. It was further observed that the same would be subject to the result of the writ petition. I have given my thoughtful consideration to the matter. The prayer of the petitioner for restraining the respondents from lapsing of the select list dated 31.5.2000 has already been declined by this court vide order dated 4.2.2005. In the circumstances, no ground is made out for restraining the respondents from filling the posts which have been requisitioned in pursuance of Annexure ‘A’ dated 3.3.2006. Prayer for grant of stay is, therefore, declined. However, the appointments, if any, made 10 C.W.P. No. 16016 of 2000 pursuant to the requisition (Annexure ‘A’) shall be made subject to the decision of the writ petition. Learned counsel for the petitioner has, however, submitted that in the circumstances, an early actual date of hearing of the writ petition may be fixed in terms of the second alternative prayer made in the Civil Misc. application. After giving my thoughtful consideration, I find the said prayer to be reasonable. Accordingly, the writ petition be listed for hearing in August, 2006. C.M. stands disposed of.” When the matter came up for consideration on 13.12.2006, this Court passed a detailed order, which reads as under: “ During the course of arguments it emerged that the facts have been disputed with regard to number of vacancies available on 31.5.2001 for the direct recruits Sub Divisional Engineer (Civil) and thereafter. The respondent State has taken the plea of restructuring for refusing to appoint the petitioners who were selected against 39 vacancies advertised. How the restructuring has reduced the number of vacancies/posts concerning direct quota has not become clear because the respondent State has relied upon the decision of the Council of Ministers, dated 15.3.2001, wherein the proposal made 11 C.W.P. No. 16016 of 2000 by the Financial Commissioner and Secretary to Government, Public Works Department (B&R) Department was approved by the Council of Ministers in its meeting and the same reads as under:- “2. The Council of Ministers in its meeting held on 15.03.2001 has taken the following decision in this matter:- “The proposal was approved subject to the following modifications:- i) Divisions would not be constituted on the basis of financial norms of work to be handled. ii) Same divisions would look after the work of both roads and buildings. iii) Reduction in number of posts of different categories would be as per the recommendations of the Committee headed by the Finance Secretary in its meeting held on 17.1.2001. The Department would work out proposals for their deployment subject to this ceiling. iv) A Common policy would be formulated for the staff rendered surplus as a result of restructuring 12 C.W.P. No. 16016 of 2000 exercise carried out in various Government departments.” 3. The Administrative Department is requested to kindly implement the decision of the Council of Ministers at the earliest and to send a copy of the orders issued in this regard, if any, to the Cabinet Section, within a fortnight, positively.” Mr. Rajive Atma Ram and Mr. R.K. Malik, learned counsel for the petitioners have submitted that restructuring as per the decision of the Council of Ministers at para 2(iv) has not been implemented in any other department except the Public Works Department (B&R) only qua the posts of Assistant Engineer (Civil). The decision has not been implemented with regard to reversion of Class-I officers to the post of Assistant Engineer nor it has been effected in any other department, is the argument raised by the learned counsel for the petitioners. It has further been suggested that even after the restructuring the vacancy position in accordance with the rules of quota between the promotee and direct recruits has not been correctly depicted and some of the vacant posts belonging to direct quota have been permitted to be occupied by giving additional charge of the post of Assistant Engineer to the Junior Engineers on ad hoc basis or to existing Assistant 13 C.W.P. No. 16016 of 2000 Engineers who belong to the promotee quota in the Service as additional charge. However, the facts are being disputed by the learned State counsel. In order to resolve the controversy on facts, it has become necessary to seek specific affidavit of an officer not below the rank of Financial Commissioner and Secretary to Government Haryana, PWD (B&R) Department, on the following issues:- (i) Whether the restructuring has been effected only with regard to the post of Assistant Engineer in the PWD (B&R) Department and as to whether it has been applied to Class-III and Class-I posts as well? If the restructuring/down sizing has been confined only to Class-I Assistant Engineers then the reasons for such partial implementation? (ii) Whether the restructuring has been carried out in any other department? (iii) How many posts have been reduced as a result of restructuring/down sizing as per the decision of the Council of Ministers, dated 15.3.2001 and what is the effect on the direct quota vacancies/posts? (iv) How Junior Engineers/Assistant Engineers were permitted to continue on ad hoc basis 14 C.W.P. No. 16016 of 2000 by giving them additional charge of the post of Assistant Engineer from 31.5.2001 onwards? (v) It must also be specified how many persons have been promoted so as to clearly bring out the ratio of 57:43 as per the rule of quota for direct recruit and promotee respectively and the amended quota rule w.e.f. 29.1.2004. (vi) If there are any posts created by the Government in the cadre of Assistant Engineer before or after restructuring, the same should also be specified in the affidavit. (vii) It may also be specified in the affidavit as to how many posts of Assistant Engineer Civil, Mechanical, Horticulture and Electrical are there. This information is required to be given in addition to the information earlier pointed out, which allegedly postulate only one cadre of Assistant Engineer. Let the needful be done within three weeks with a copy in advance to the learned counsel for the petitioners in the instant case as well as to the learned 15 C.W.P. No. 16016 of 2000 counsel for the petitioners appearing in the connected petitions. Part heard for 10.1.2007. Undertaking given by the learned State counsel on 29.11.2006 shall continue.” In pursuance to the order dated 13.12.2006, an affidavit of Shri Dharamvir, IAS, Financial Commissioner and Principal Secretary to Government Haryana, PWD (B&R) Department, Chandigarh, dated 9.1.2007, giving parawise information on the queries made by this Court was filed. A counter affidavit dated 8.2.2007 was also filed on behalf of the petitioners In compliance with the order dated 13.12.2006 passed by this Court, Sh. Dharamvir, IAS, Financial Commissioner & Principal Secretary, Government of Haryana, PWD (B&R)Department, Chandigarh filed an affidavit dated 9.1.2007 asserting that the restructuring of the staff has been effective in all categories of posts of the Department from class I to IV thereby reducing the sanctioned posts for each cadre or category as per the chart. It has further been submitted that restructuring has not been confined only to PWD (B&R) Department and the same has been carried out in other departments as well. In that regard reliance has been placed on an intimation sent by Worthy Chief Secretary, Haryana dated 4.1.2007 (Annexure A-1). The aforementioned intimation shows that restructuring has been carried out in 55 departments, which includes Public Relations, Environment, Fisheries, I.T.Is, Supplied and 16 C.W.P. No. 16016 of 2000 Disposals, Printing and Stationary, Development and Panchayats, Secondary Education, Rural Development, Excise and Taxation, Town and Country Planning etc. The details of restructuring have been furnished in a tabulated form in respect of PWD (B&R) Department, which reads as under:- Sr. No. Name of the post No of sanctioned posts before restructuring Strength approved after restructuring 1 Chief Engineer 5 4 2. Superintending Engineer (Civil) Superintending Engineer (Elect.) Superintending Engineer (Mech.) 18 1 1 15 1 1 3. Executive Engineer (Civil) Executive Engineer(Elct.) Executive Engineer (Mech.) Executive Engineer(Hort.) 76 8 8 2 58 5 5 1 4. Assistant Engineer (Civil) Assistant Engineer(Elect.) Assistant Engineer(Mech.) Assistant Engineer(Hort.) 235 27 26 7 153 22 12 5 5. Junior Engineer (Civil) 846 611 6. Circle Head Draftsman (Civil) 22 18 7. Head Draftsman (Civil) 77 60 8. Assistant Draftsman (Civil) 203 106 9. Tracers (Civil) 128 63 10. Road Inspector 127 76 11. Clerks (Head Office) 98 72 12. Restorer (Head Office) 10 5 13. Dy. Superintendent (Civil/ Elect./ Mech.) 71 55 14. Head Draftsman (Elect./ Mech.) 12 9 15. ADM (Elec./ Mech.) 29 15 16. Tracers (Elec./ Mech.) 29 11 17. Senior Accounts Clerk 192 162 18. Steno-typist 58 55 19. SDCs. 229 169 20. Clerk 886 506 21. J.E.(Elect.) 117 95 22. J.E.(Mech.) 103 50 23. J.E.(Hort.) 28 22 17 C.W.P. No. 16016 of 2000 Sr. No. Name of the post No of sanctioned posts before restructuring Strength approved after restructuring 24. Peon 702 542 25. Chowkidar 309 55 26. Sweeper 260 To be outsourced 27. Ferro Khallasi 76 67 28. Divisional Accountant 56 53 The affidavit further asserts that after restructuring the posts, the number of posts of Sub Divisional Engineers/Assistant Engineers (Civil) have been reduced to 159 and according to Rule 6 of 1965 Rules, the direct recruits become entitled to 91 posts and the promotees acquire the right to appointment to 68 posts. It is claimed that against the quota of 91 Assistant Engineers by direct recruitment 109 direct recruits were already in position and there was no post available which could be filled up out of the recommendations made by the Haryana Public Service Commission in respect of the petitioners. It was on that account that the petitioners who although recommended by the Haryana Public Service Commission, were not offered appointment on 31.5.2001 i.e. the date of expiry of the select list. The affidavit further explains that on the date of expiry of select list on 31.5.2001, as prepared by the Haryana Public Service Commissioner there were total 107 direct recruits and 126 promotees (Assistant engineers) in position against the cadre strength of 91 and 68 respectively. The excess number of Assistant Engineers (Civil) were continued to be adjusted against the resultant vacancy arising 18 C.W.P. No. 16016 of 2000 after 31.5.2001 in their respective quota. On account of administrative exigencies, 48 Junior Engineers/Circle Head Draftsmen were given additional charge to look after the work of the post of Sub Division Engineers (Civil) in additional to their own duties without any extra remuneration vide Government order dated 7.12.2004. It is claimed that no promotion was made and it was only a stop gap arrangement. However, it is admitted that out of 48 Junior Engineers, the ad hoc promotions of 40 officials as Sub Division Engineers(Civil) have been made vide Government order dated 31.12.2005 against their quota posts as per the restructured cadre and that promotions of 20 official as Sub Divisional Engineers (Civil) has also been made vide Governments order dated 6.10.2006 and 28.12.2006 against their respective quota posts. It has further been submitted that from 15.3.2001 to 7.12.2004 neither any ad hoc promotion nor additional charge was given in the cadre of Assistant Engineers (Civil) and that the practice of assigning current duty charge has been stopped by the Government with effect from 9.6.2005. A list depicting the names of the Assistant Engineers (Civil) from both sources as on 31.5.2001 has been placed on record as Annexure A-II and A-III (107 direct recruits and 126 promotees). It has also been clarified that no post in the cadre of Assistant Engineers before or after restructuring has been created by the Government. The affidavit further claims that the Government is filling up the posts of Assistant Engineers separately from amongst the candidates having qualification of respective trades like Civil, 19 C.W.P. No. 16016 of 2000 Mechanical, Horticulture and Electrical and that their seniority lists are also maintained separately. In other words, the Government claims that there was no common cadre