IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: 14 -07-2008 LPA No.96 of 2008 in CWP.NO.16016 of 2000 Jai Parkash & Others ....Petitioner(s) through Sh. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate. Versus State of Haryana and Others .....Respondent(s) LPA No.97 of 2008 in CWP.NO.6985 of 2004 Suresh Pal & Others ....Petitioner(s) through Sh. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate. Versus State of Haryana and Others .....Respondent(s) LPA No.108 of 2008 in CWP.NO.1765 of 2001 Vinod Kumar and Another ....Petitioner(s) through Sh. R.K. Malik, Sr. Advocate with Mr. P.K. Rohilla, Advocate. Versus State of Haryana and Others .....Respondent(s) LPA No.109 of 2008 in CWP.NO.16188 of 2000 Suresh Pal and Others ....Petitioner(s) through Sh. R.K. Malik, Sr. Advocate with Mr. P.K. Rohilla, Advocate. Versus State of Haryana and Others .....Respondent(s) CORAM: HON'BLE MR. JUSTICE VIJENDER JAIN,CHIEF JUSTICE HON'BLE MR. JUSTICE JASWANT SINGH .*.*. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? VIJENDER JAIN, CHIEF JUSTICE The judgment in the present Latters Patent Appeal shall also dispose of three other connected LPAs bearing No.97 of 2008, 108 of 2008 and 109 of 2008 since common questions of facts and law are involved, as also these are directed against a common judgment dated 3.12.2007 passed LPA No.96 of 2008 in #2# CWP.NO.16016 of 2000 by the learned Single Judge dismissing the writ petitions. For the sake of convenience and with the consent of learned counsel for the parties, the facts from LPA No.96 of 2008 are being taken. Briefly, the facts are that the Haryana Public Service Commission (For short “HPSC”) issued an advertisement in various newspapers in June-July 1996 to fill up six temporary posts of Assistant Engineers(Civil) (Class II) in the PWD (B&R Branch), Haryana in the pay scale of Rs.2200-4000/- plus usual allowances as sanctioned by the Haryana Government. The selection, however, could not be made in time and number of posts advertised were increased by issuance of a corrigendum in September 1999 from 6 to 39. The last date of submission of applications was extended upto 30.11.1999 and the date for the purpose of age limit was fixed as 1.8.1999 in stead of 1.8.1996. The appellants-petitioners submitted their applications and were selected as per the result of the selection declared/published on 31.5.2000 (Annexure P.4). A letter dated 31.5.2000 came to be issued by HPSC to the Secretary, Government of Haryana, PWD, B&R, Department recommending the names of the candidates including the petitioners categoriwise in order of merit for appointment to the post of Assistant Engineers(Civil) (Class II) in PWD, B&R Department Haryana (Annexure P4/A). Letters dated 8.8.2000 were issued to the candidates by the respondent-Department to appear before the Director Health Services, Haryana, Chandigarh for their medical examination and letters were also issued for verification of character and antecedents of selected candidates. In the meanwhile, an order dated 21.8.2000 was issued by respondent No.1 vide which 42 Junior Engineers/Draftsmen were promoted as Sub Divisional Engineers on ad hoc basis, subject to the approval of HPSC, with a condition that they will be reverted to their original posts as and when direct recruits join. The appellants-petitioners, aggrieved by the action of the respondent-Department in not permitting them to join their duties, were constrained to file CWP No.16016 of 2000. Similarly, other writ petitions bearing CWP Nos.16188 of 2000,1765 of 2001 and 6985 of 2004 were filed. Respondent-Department contested the same on the grounds, inter-alia, that restructuring adopting austerity measures had taken place in 55 Departments on the report dated 17.1.2001 of a committee of Secretaries of various Departments and accepted by the Council of LPA No.96 of 2008 in #3# CWP.NO.16016 of 2000 Ministers in its meeting held on 15.3.2001, which resulted into reduction of posts of Assistant Engineers (Civil)/Sub Divisional Engineers in the respondent-department from 235 to 159. According to the respective quota provided in Rule 6 to the Haryana State Engineers, Class II, PWD (B&R) Branch Rules, 1965 (hereinafter to be referred as “1965 Rules”), out of 159 posts, 91 posts fell to the share of direct recruits whereas 68 were meant for promotees. It was stated that against 91 posts meant for direct recruitment, 109 Assistant Engineers (Civil)/Sub Divisional Engineers are/were already in position and against promotion quota of 68, 126 incumbent are working and as such, the appellants-petitioners could not be appointed in pursuance of the recommendations made by the HPSC. It was further stated that the excess incumbent are being adjusted against the resultant vacancies arising after 31.5.2001. 40 Junior Engineers/Circle Head Draftsmen were given only additional charge to look after the post of Sub Divisional Engineers(Civil) in addition to their own duties without any extra remuneration vide orders dated 7.12.2004. It was further stated that it was only a stop gap arrangement. During all this process, the select list, in which name of the appellants-petitioners figured elapsed. Respondent-Department had sent a requisition dated 3.3.2006 for filling up 44 vacancies, which arose during the period from 1.6.2001 to 3.3.2006 i.e after the expiry of the validity period of the select list dated 31.5.2000 and the said vacancies had nothing to do with the vacancies occurring prior to 31.5.2001, on which the appellants-petitioners would have any claim. It is to be noticed that the life of the select list dated 31.5.2000 had been extended till 31.5.2001 and the prayer of the appellants- petitioners for restraining the respondent-Department to elapse the select list was declined by this Court vide order dated 4.2.2005. In view of the aforesaid facts, respondent-Department had put forth their case that since there was no post for their appointment due to restructuring, appellants- petitioners had no right for appointment merely on the basis of their empanelment, more so after the select list had expired in November 2001. Learned Single Judge framed three issues, which are as under: I. Whether restructuring of cadre by the government to downsize the cadre strength for austerity measures is LPA No.96 of 2008 in #4# CWP.NO.16016 of 2000 permissible under the 1965 Rules and the General law? II. Whether the petitioners have acquired indefeasible or vested right to seek appointments to the posts of Assistant Engineer, which could be enforceable by issuance of a writ in the nature of mandamus? III. Whether the select panel after 31.5.2001 would continue to be alive with the consequence that appointments to the post of Assistant Engineer may be made from that select panel? On issue No.1, the learned Single Judge observed that once the government while framing the rules in pursuance to proviso to Article 309 of the Constitution has kept a power reserved to itself to determine and re- determine the cadre strength at specified intervals, then the exercise of such a power, in the facts of the present case, cannot be challenged, specially in view of the austerity measures undertaken by the Department. Placing reliance on N. Ramanatha Pillai v. State of Kerala, AIR 1973, SC 2641, State of Haryana v. Shri Des Raj Sangar, AIR 1976, SC 1199 and K. Rajendran v. State of Tamil Nadu (1982) 2 SCC, 273, it was observed that a post can be abolished in good faith but if it is done with malafide intentions or as a mask of some penal action, such action is not permissible. When the said action taken is legislative or executive in nature, it is always subject to judicial review. The decision of the respondent-Department to reduce the cadre strength of the cadre of Assistant Engineers (Civil) in pursuance of the decision of Council of Ministers dated 15.3.2001 cannot be regarded as illegal, more so when austerity measures resulting into down sizing of cadre strength have been adopted in many Departments. On the dispute of calculation of number of vacancies raised by the appellants- petitioners, it was observed that in view of the affidavit dated 9.1.2007 filed by Sh. Dharamvir, Financial Comissioner and Principal Secretary to Government, Haryana, it is not deemed necessary to go into calculations based on gradation list since it is not possible for the Court to go into such determination of facts, especially when a responsible officer of the rank of Financial Commissioner, has filed an affidavit about the number of vacancies. In regard to the plea of the appellants-petitioners that if the ratio of 57:43 of direct recruits viz-a-viz promotee is implemented, more posts would fall to the share of direct recruits, the Court held that the posts were LPA No.96 of 2008 in #5# CWP.NO.16016 of 2000 advertised in July 1996 and then in September 1999 and thus in view of the affidavit dated 9.1.2007 filed by the Financial Commissioner and Principal Secretary to Government of Haryana, there is no room to entertain any doubt regarding the calculation of vacancies. The position as reflected in the said affidavit had to be accepted. With regard to issue No.2, the learned Single Judge placing reliance on State of Haryana v. Subhash Chander Marwaha (1974) 3 SCC 220; Mani Subrat Jain v. State of Haryana (1977) 1 SCC 486; Jatendera Kumar v. State of Punjab (1985) 1 SCC 122, Shankarasan Dash v. Union of India (1991) 3 SCC 47; Neelima Shangla v. State of Haryana (1986) 4 SCC 268; U.P Bhumi Sudhar Nigam Limited v. Shiv Narain Gupta, 1994 Suppl. (2) SCC 541; K Jayamohan v. State of Kerala (1997) 5 SCC, 170; Rabiu Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor (1998) 7 SCC 469; Vindodan T v. University of Calicut (2002) 4 SCC 726, Bhatiarani Gramiya Bank vs. Pallab Kumar (2004) 9 SCC 100 and State of U.P v. Raj Kumar Sharma (2006) 3 SCC 330, it was held that a person does not acquire a indefeasible right for appointment on the basis of his empanelment and State is not under any legal duty to fill all or any of the vacancies and further once the select list had expired, persons could not be appointed on the basis of their names in the expired select list. In the present case, due to austerity measures, the post of the cadre of Sub Divisional Engineer/Assistant Engineers (Civil) were decreased from 235 to 159 and further the same was already over subscribed and no post was available for appointment of the appellants- petitioners. Even the select list had already expired in 2001. Thus, the appellants-petitioners had no indefeasible right to seek appointment by the process of issue of a writ of mandamus to the posts now advertised in 2006. With regard to issue No.3, it was observed that keeping in view the law laid down by the Hon'ble Supreme Court in case of State of U.P v. Ram Sarup Saroj, 2000(1) SCC 699, it was one thing to say that the select list would continue to be alive if before the date of its expiry the writ petition has been filed, it is, however, a different proposition, if after the preparation of the select list, the cadre strength has been reduced, by down sizing the cadre of Assistant Engineers (Civil) along with other cadres in the LPA No.96 of 2008 in #6# CWP.NO.16016 of 2000 same Department as well as 54 other Departments. Once, no post was available after reduction in cadre strength, then whether select list is to survive or not would pale into insignificance. In such circumstances, it is not possible to direct the respondents to offer appointment to the selected candidates/appellants-petitioners against the vacancies for which requisition was sent on 3.3.2006, as these posts/vacancies became available subsequent to the expiry of the validity of the select list i.e 31.5.2006 and that too after applying a cut on the cadre strength. Thus, the appellants-petitioners would not be entitled to seek any claim to the post advertised in 2006. The writ petition was accordingly dismissed vide the impugned judgment dated 3.12.2007 passed by the learned Single Judge. We have heard learned counsel for the appellants-petitioners. Firstly, it has been contended by learned counsel for the appellants that reduction in the cadre strength by the respondent- Department under the garb of restructuring was undertaken with the malafide intention to deny the rightful claim of the petitioner for appointment, and secondly, that even on the reduced strength after restructuring, the appellants were entitled to be appointed, because sufficient vacancies for appointment would be available if proper calculation is done, since the calculations of the vacancies for their appointment, as depicted by the Department, have not been correctly made inasmuch as the respective quota of 57:43 between the direct recruit and promotee has not been adhered, the adhoc promotees have encroached upon the quota of direct recruits etc. It is not in dispute that under 1965 Rules, the Government is empowered to increase or decrease the number of posts. In exercise of such powers, the number of posts of Sub Divisional Engineers/Assistant Engineers (Civil) as also other cadres in the Department were decreased by way of restructuring during the period of process of selection and appointment of the appellants. The appellants have levelled vague and sweeping allegations that such reduction of number of posts had been done with malafide intentions on paper only and with a view to deprive the appellants from getting appointment. No person by name has been impleaded as party against whom allegations of malafide could be levelled or proved. It is well settled that if something is to be proved as a result of LPA No.96 of 2008 in #7# CWP.NO.16016 of 2000 malafide intention of a particular person, such person has to be impleaded as a party and allegations have to be proved on record by placing evidence or sequence of events. As regards legal malafide, it has come on record that down sizing of staff had been undertaken in various cadres not only in the respondent-Department but had taken place in 54 other departments of Government of Haryana, as such, one cannot say that such decision was a result of any legal malafide on the part of the respondent-Department/State Government so as to deny the claim of the appellants for appointment. Therefore, the allegations being vague and not supported by any material on record, the first contention raised by learned counsel for the appellants deserves to be outrightly rejected. The second contention raised by the appellants to the effect that vacancies had not been properly calculated, the prescribed quota between the direct recruits and promotee had not been adhered to while apportioning vacancies in the respective quota, ad hoc appointees had been appointed in excess of their quota and vacancies/posts were available for their appointment in the respondent-Department even on reduced strength etc, relate largely to the determination of facts. It is not in dispute that to prove the respective canvassed facts, affidavits on behalf of the respondent-State as well as the appellants were filed. The learned Single Judge placed reliance on the affidavit dated 9.1.2007 filed by Sh. Dharamvir, IAS, Financial Commissioner and Principal Secretary to Government of Haryana, which disclosed the factual position existing in the Department, clarifying that cadre of Assistant Engineers (Civil) had been restructured resulting into reduction of number of posts from 235 to 159, which was taken in pursuance of decision of the Council of Ministers dated 15.3.2001 based on report of committee of the Secretaries of the various departments. This reduction in cadre was a result of austerity measures embarked upon by the State Government. It was clarified that cadre of Assistant Engineers (Civil) was only of 159 posts and according to the quota of direct recruits, as per rules, at the relevant time, 91 number of posts fell into their share whereas 68 posts went to the share of the promotees. It is not in dispute that against the said 91 posts belonging to the direct recruit quota, 109 directly recruited Assistant Engineers were already working at that time and thus there was no post, which could be filled up out of the recommendations of HPSC from LPA No.96 of 2008 in #8# CWP.NO.16016 of 2000 amongst the petitioners-appellants. As such, 39 candidates/petitioners- appellants recommended by the HPSC could not be offered appointment. The affidavit further states that on 31.5.2001 i.e date of expiry of the selection dated 31.5.2000, there were 107 direct recruits and 126 promotees Assistant Engineers (Civil) against the cadre strength of 91 and 68 respectively. In the face of such factual matrix, could the appellants claim that they had a right to be appointed on the basis of their empanelment in question? To us, finding recorded by the learned Single Judge, on the basis of the affidavit filed on behalf of the State Government is correct and do not require any interference. A finding of fact based on evidence, arrived at by the learned Single Judge cannot be upset/set aside in appeal just because it is not favourable to the appellants. No illegality has been committed by the learned Single Judge while relying upon the affidavit filed by the Financial Commissioner-cum-Principal Secretary with regard to the calculations of vacancies/number of posts available etc and holding that in such circumstances, it is not possible to issue any direction to the respondents to offer appointment to the appellants because no post was available. Learned Single Judge has further rightly held that the appellants, on the basis of their empanelment, which in any case stood expired, had no right of appointment to 44 posts of Assistant Engineers (Civil), requisitioned on 3.3.2006 since it is well settled by catena of judgments that a selected person has no indefeasible right of appointment and further no appointment can be ordered out of the select list, which has elapsed/expired. In view of the above, we do not find any legal infirmity in the judgment passed by the learned Single Judge. Dismissed in limine. ( VIJENDER JAIN ) CHIEF JUSTICE July 14, 2008 ( JASWANT SINGH ) manoj JUDGE