IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:10.1.2008 CWP.NO.3006 of 2007 Ashwani Kumar and Others ....Petitioners Versus State of Haryana and Others ....Respondents AND CWP No.3107 of 2007 Satish Kumar and Another ....Petitioners Versus State of Haryana and Others ....Respondents CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Sanjay Bansal, Sr. Advocate with Mr. Prashant Bansal, Advocate and Mr. Ashwani Talwar, Advocate for the petitioners. Mr. Harish Rathee, Sr. DAG, Haryana. JASWANT SINGH,J This judgment will dispose of CWP No.3006 of 2007 and CWP No.3107 of 2007 since common questions of facts and law are involved in the said writ petitions. CWP.NO.3006 of 2007 Petitioners, who are six in number, by way of filing present writ petition, have challenged the legality of the impugned orders dated 21.2.2007 (Annexures P.17 to P.23) passed by the District & Sessions Judge, Kaithal whereby the services of the petitioners from the posts of Process Servers have been dispensed with. The formal impugned termination orders dated 21.2.2007 (Annexure P.17 to P.23) of six petitioners are based upon the order of even date i.e 21.2.2007 (Annexure P.23) vide which the representations made by eight candidates including the present six petitioners have been rejected and their appointments were held to be illegal and the same were cancelled and their services as Process Servers were ordered to be dispensed with. Broadly, the facts giving rise to the matter in controversy are that vide notification/letter dated 22.12.2001 (Annexure P.1), two posts of Process Servers (General Category), including other posts, were advertised CWP No.3006 of 2007 and #2# CWP No.3107 of 2007 by the office of District & Sessions Judge, Kurukshetra and the last date of receipt of the applications was fixed as 25.1.2002. It was also mentioned in the notification dated 22.12.2001 (Annexure P.1) that number of posts are subject to increase or decrease for any reason including withdrawal/creation of new courts. In total, 605 applications were received for the two posts of Process Servers. Interviews were held on 2nd and 3rd February, 2002 and selection process was completed on 3rd February, 2002 itself by preparation of the merit list on the basis of interview. It is necessary to mention here that one more vacancy for the post of Process Server became available on 29th January 2002 on account of dismissal of one Process Server from service and another vacancy arose on 4th February 2002 due to the promotion of another Process Server as Clerk. Consequently, four selected candidates in order of merit namely (i) Anup Gupta son of Sh. Ramesh Kumar, (ii) Kuldeep Sanyal son of Sh. Balraj Sharma, (iii) Raj Kumar son of Shri Jagdish Chand (iv) Satish son of Sh. Jai Pal were appointed as Process Servers vide order dated 22.4.2002 by the District & Sessions Judge, Kurukshetra. Thereafter, seven more posts of Process Servers were created in the Sessions Division of District & Sessions Judge, Kurukshetra by the High Court vide letter dated 24.4.2002 and the present six petitioners along with one Ramesh Kumar son of Sh. Punjab Singh were also appointed as Process Servers by the District & Sessions Judge, Kurukshetra vide orders dated 9.5.2002 (Annexures P.2 to P.7). All the six petitioners, in pursuance of their appointment letters dated 9.5.2002 joined their duties on the post of Process Servers on 20.5.2002. The aforesaid selection/appointments made by the then District & Sessions Judge, Kurukshetra were challenged by one unsuccessful candidate namely, Shiv Dayal by way of filing CWP No.14598 of 2002, interalia, on the grounds that appointments were made in excess of the advertised posts. Thereafter, the matter was brought to the notice of this Court regarding the appointment of eleven Process Servers. As a sequel thereto, a report was called through District & Sessions Judge (Vigilance), Haryana and the same was supplied by the said officer on 22.5.2002. The matter was pending for scrutiny before this Court when the successor CWP No.3006 of 2007 and #3# CWP No.3107 of 2007 District & Sessions Judge, Kurukshetra also sent his report dated 30.7.2002 to the High Court and as per the same, the appointment of Process Servers were not made as per law, as only two posts of Process Servers were advertised and therefore, appointments could only be made against two advertised posts and not against the remaining posts, which became available at a later stage. It was proposed therein that the appointment of first two candidates in the merit list namely Anup Gupta and Kuldeep Sanyal be accepted and the remaining nine candidates be cancelled. Further it transpired that as per High Court letter dated 17.9.2002, the District & Sessions Judge was informed that the Hon'ble the Inspecting Judge was pleased to advise him to dispense with the services of the candidates appointed in excess of the advertised vancancies forthwith in accordance with law. Ultimately, appointment of those nine candidates including the present six petitioners was cancelled by the District & Sessions Judge, Kurukshetra vide orders dated 24.9.2002 (Annexure P.8) and their services were dispensed with forthwith. Accordingly the aforesaid CWP No.14598 of 2002 was disposed of as having been rendered infructuous. Aggrieved against the order dated 24.9.2002 (Annexure P.8), present petitioners filed a petition bearing CWP No.16179 of 2002 titled Ashwani Kumar and Others v. State of Haryana and Others and the same was dismissed vide order dated 7.10.2002 (Annexure P.9). It is necessary to mention here that Ramesh Kumar son of Sh. Punjab Singh had not challenged his termination. However, another petition bearing CWP No.19264 of 2002 (Satish Kumar and Another v. State of Haryana and Others) was also filed by two of the candidates (now petitioners in the connected petition bearing CWP No.3107 of 2007), who were also removed from the posts of Process Servers and had challenged the legality of the termination orders dated 24.9.2002 (P.8) and the same was allowed by this Hon'ble High Court vide order dated 20.2.2003. Present six petitioners aggrieved against the High Court order dated 7.10.2002 (Annexure P.9) filed a Special Leave Petition before the Hon'ble Supreme Court and it was allowed vide order dated 20.1.2005 (Annexure P.10) and the case was remanded back to the High Court for decision on merits by passing a speaking order after giving them an CWP No.3006 of 2007 and #4# CWP No.3107 of 2007 opportunity of being heard. In pursuance of the directions dated 20.1.2005, petition bearing CWP No.16179 of 2002 (Ashwani Kumar and Others v.State of Haryana and Others) was decided afresh and the same was allowed vide orders dated 10.5.2005 (Annexure P.11), in view of the decision dated 20.2.2003 passed in CWP No.19264 of 2002 (Satish Kumar and Others v. State of Haryana and Others). It is necessary to mention that while allowing the writ petition vide order dated 10.5.2005 (Annexure P.11), liberty was granted to the respondents to pass a order afresh after complying with the principles of natural justice. In pursuance of the High Court orders dated 10.5.2005 (Annexure P.11), the petitioners were allowed to join their duties on 14.5.2005 and were granted consequential benefits. It is necessary to mention here that in the meanwhile, Sessions Division, Kaithal was created and the present petitioners were ordered to report to the District & Sessions Judge, Kaithal,(respondent No.3) for their respective adjustments vide order dated 21.6.2005 (Annexure P.14) of the District & Sessions Judge, Kurukshetra. In compliance thereof, the petitioners joined their duties on 22.6.2005 by submitting their joining reports before respondent No.3. After joining, identical show cause notices dated 28.6.2005 (Annexure P.15) were served to the petitioners to show cause as to why their appointments as Process Servers be not cancelled and services dispensed with on account of being in excess of total vacancies. Petitioners filed their replies dated 11.7.2005 (Annexure P.16). They were offered opportunity of personal hearing on 16.8.2005 by respondent No.3. Ultimately, reply/representations of all the eight candidates including the present six petitioners and Raj Kumar son of Sh. Jagdish Chand and Satish Kumar son of Sh. Jai Pal (petitioners in CWP No.3107 of 2007 being decided along with the present writ petition) were considered and it was held that appointment of only first two candidates namely Anup Gupta and Kuldeep Sanyal could be considered as legal and valid and appointment of the remaining nine candidates to the post of Process Servers were illegal and resultantly in view of the orders dated 21.2.2007 (Annexure P.23), appointments of the present petitioners were cancelled and their services were dispensed with vide CWP No.3006 of 2007 and #5# CWP No.3107 of 2007 orders of even date (Annexures P.17 to P.23). Aggrieved against the termination/cancellation order dated 21.2.2007, the petitioners have filed the present writ petition. In the writ petition, the termination orders have been assailed, inter-alia, on the ground that although two posts of Process Servers were advertised but in the advertisement, it was specifically mentioned that number of posts were subject to any increase/decrease for any reason including withdrawal/creation of new courts, and seven more posts of Process Servers having been created by the High Court vide letter dated 24.4.2002, besides two posts becoming otherwise available on account of dismissal/promotion, the petitioners' appointment, as per their merit prepared, on 22.4.2002 and having joined their duties on 20.5.2002, the petitioners had a right to continue in service. The impugned orders have been passed in violation of the doctrine of Legitimate Expectation and the Wednesbury rule and hit by the principles under Article 14 and 21 of the Constitution of India. It is further stated that the impugned orders have been passed after they had put in more than five years of service and their being no adverse material against them in equity also they be retained in service. Reliance has been placed on the law laid down by the Hon'ble Supreme Court of India in case of Sandeep Singh v. State of Haryana and Another in Civil Appeal No.7422 of 1999 (Annexure P.24) and Suvidya Yadav and Others v. State of Haryana and Others in Civil Appeal No.6976-6977 of 1999 (Annexure P.25) as also Prem Singh v. Haryana State Electricity Board, 1996(3), S.C.T 563 wherein it has been held that the vancancies available in any particular service could be filled up if the post available upto date of selection or within reasonable time are available from that very selection unless there is any statutory embargo for the same. The respondents, upon notice have filed their written statement and have defended their action on the ground that the appointments were in excess of the available and advertised vancancies and, therefore, they had no right to continue at all as the appointments were contrary to law and thus illegal. It has been further submitted that if eleven posts had been advertised, then there was every likelihood of more persons having applied for being considered for appointments. It has been further submitted that CWP No.3006 of 2007 and #6# CWP No.3107 of 2007 Service Rules governing the recruitment to the post of Process Servers namely, Haryana Subordinate Courts Establishment (Recruitment and General Conditions of Service) Rules, 1998 ( For short “1998 Recruitment Rules”) have not been followed. As per Rule 7(x) of 1998 Recruitment Rules, 50% of the vacancies were to be filled up by direct recruitment and the remaining 50% were to be filled up from amongst Class IV employees having three years experience. It is further submitted that the petitioners were continuing in service under the orders dated 10.5.2005 in CWP No.16179 of 2002 titled Ashwani Kumar and Others v. State of Haryana and Others passed by the Hon'ble High Court (Annexure P.11). We have heard learned counsel for the parties. Keeping in view the facts and circumstances discussed hereinabove and the contentions of the counsel for the rival parties, the point of determination in this case is whether the appointment made vide orders dated 9.5.2002 (Annexures P.2 to P.7) on the post of Process Servers was legal and justified or not? It is not in dispute that initially two posts of Process Servers were advertised though with a stipulation that number of posts were subject to increase or decrease for any reason including withdrawal/creation of new courts. It is also not in dispute that interviews were held on 2nd and 3rd February 2002 and selection process was completed on 3rd February 2002 itself and four candidates in order of merit, who were issued appointment letters, joined their duties on 22.4.2002 with the District & Sessions Judge, Kurukshetra. There is nothing on record to show that the said posts were increased for any reason including withdrawal/creation of new courts by the competent authority. No merit list of eleven candidates including the petitioners has been placed on record. It is quite a mystery that how and under which provision of law, appointment orders dated 9.5.2002 (Annexures P.2 to P.7) were issued to the petitioners against the posts, which were created on 24.4.2002, when admittedly the selection process was over on 3rd February 2002. Even the letter dated 24.4.2002 vide which seven more posts of Process Servers were created is also not placed on record to substantiate the plea of the petitioners that any permission was granted to the then District & Sessions Judge, Kurukshetra to fill up the posts from the said merit list/selection penal completed on 3rd February 2002. CWP No.3006 of 2007 and #7# CWP No.3107 of 2007 It is necessary to mention here that the posts of Process Servers were initially advertised by the District & Sessions Judge, Kurukshetra, selection process was completed and appointment orders dated 24.9.2002 were issued by him but strangely he has not been impleaded as party for the reason best known to the petitioners. It is further not in dispute that Rule 7 clause (x) of the 1998 Rules has not been followed and no one has been appointed amongst Class IV employees having three years' experience. These undisputed facts and circumstances led to inevitable conclusion that the then District & Sessions Judge, Kurukshetra was not, at all, authorized/empowered in law to appoint the petitioners as Process Servers vide order dated 9.5.2002 (Annexures P.2 to P.7). Resultantly, it is held that the appointment was not legally permissible. So far as the plea of Legitimate Expectation and the Wednesbury rule is concerned that is not at all applicable to the facts of the present case as selection process was already over on 3rd February 2002 and the petitioners had no right to be appointed against the posts, which were created on 29.4.2002. The plea of the petitioners that they have been granted consequential benefits including seniority and pay fixation and have been in service for more than five years, therefore, in equity also they are entitled to be retained in service, is of no assistance as the same was possible only in compliance of the orders dated 10.5.2005 (Annexure P.11), vide which earlier termination order dated 24.9.2002 (Annexure P.8) was quashed and the petitioners were held entitled to reinstatement in service with all consequential benefits. It was further made clear that the respondents shall be entitled to pass a fresh order after complying with the rules of natural justice and in case, ultimately the petitioners are retained in service, then their seniority shall be counted from the date of their initial appointment. The said order dated 10.5.2005 (Annexure P.11) has not been challenged by the petitioners, therefore, the petitioners are now estopped from raising the plea that issuance of show cause notice and consequential cancellation of appointment on the ground that their appointment was in excess of the advertised posts was not justified. The aforesaid judgments relied upon by the petitioners at Annexures P.24 and P.25 are of no assistance to the petitioners as the same CWP No.3006 of 2007 and #8# CWP No.3107 of 2007 are distinguishable due to the reason that in Sandeep Singh's case(supra), advertisement in question was issued on 24.12.1992 and the written examination was held in the year 1993 but the interviews could not be held immediately thereafter and in fact, the same were held in January to March, 1996 i.e after a delay of almost about three years. Between the date of advertisement till the date of interviews, four other posts in the service fell vacant and against these posts, the petitioners therein were claiming their right for consideration and it is, under these circumstances, the Hon'ble Supreme Court held that vacancies available up to the date of interviews should be filled up from amongst the succesful candidates of the said competitive test rather than to have carried forward those vacancies for the next competitive test. In the present case, the selection process was over on 3rd February 2002 and the sanction for seven posts was received on 24.4.2002 i.e much after the completion of the selection process and after the joining of four selected candidates in order of merit on 22.4.2002 and the present petitioners were appointed against seven posts, which were sanctioned on 24.4.2002. In Suvidya Yadav's case (supra), 12 posts of Principals were advertised on 16.12.1991 and on 1.6.1993 before the finalization of selection, Department made a fresh requisition to the Commission indicating the number of vacancies as were applicable in the year 1991, which were more than 18. The Commission ultimately vide letter dated 1.12.1993 recommended names of 30 candidates for the post of Principal. Writ petition was filed before the High Court by unsuccesful candidates, inter-alia, on the ground that initial advertisement having been issued only for 12 posts, the Commission committed a gross error in recommending names of more than 18 candidates. The Hon'ble Supreme Court in view of the stand of the State that the subsequent requisition had been made on 1.6.1993 i.e prior to the recommendations made by the Commission on 1.10.1993 and thus the requisition being , in fact, for 33 posts, the Hon'ble court, in the said circumstances held that there was no bar on the power of the Commission for recommending 30 names and were further held to be entitled to appointment, therefore, this judgment is also not helpful to the petitioners. CWP No.3006 of 2007 and #9# CWP No.3107 of 2007 The Hon'ble Supreme Court of India in the case of Hoshiar Singh v. State of Haryana, 1993 (4), Supplementary SCC, page 377 has held that appointments beyond the advertised posts are not permissible as they deprive other candidates to compete against those additional posts. Similarly in the case of Prem Singh v. HSEB, 1996, Volume 3, SCC 463, it was held that the appointments, which are made against future vacancies on posts, which were newly created, must be regarded as invalid. Therefore, the petitioners have no right to be appointed against the posts, which became available vide order dated 24.4.2002 much after selection process was over and hence their appointment made vide orders dated 9.5.2002 (P.2 to P.7) on the posts of process servers was not legal and justified. CWP No.3107 of 2007 In this connected petition, two petitioners, namely, Satish Kumar and Raj Kumar, who were appointed against two posts of process servers, which became available on 29.1.2002 and 4.2.2002 on account of dismissal of one process server and another due to promotion of another process server as Clerk respectively have challenged their termination orders dated 21.2.2007 (Annexures P.1 & P.11). The controversy involved in this case is similar to the petition bearing CWP No.3006 of 2007 except slight distinguishing features. Two petitioners herein were issued appointment orders on 26.4.2002 (Annexures P.3 and P.4) by the District & Sessions Judge, Kurukshetra. As petitioner No.2 Raj Kumar was appointed against a post, which became available on 4.2.2002 i.e after the selection process was completed on 3.2.2002 against the two advertised posts, therefore, in view of the reasoning in CWP No.3006 of 2007,petitioner No.2 has no right to be appointed against that post. As regards petitioner No.1 i.e Satish Kumar is concerned, he had been appointed against the post, which became available on 29.1.2002. As per Rule 7(x) of 1998 Rules, 50% of the vacancies are to be filled up through direct recruitment and 50% are to be filled up by way of promotion from amongst Class IV employees having three years' experience. However, in the present case, all the four posts (two advertised plus one made available on 29.1.2002 plus one which arose on 4.2.2002) CWP No.3006 of 2007 and #10# CWP No.3107 of 2007 were filled up by direct recruitment without having regard to the quota fixed under the 1998 Rules. Thus, the appointment of petitioner No.1 as well as petitioner No.2 was also in violation of the quota fixed under Rule 7(x) of the 1998 Rules and hence illegal. Lastly, counsel for the petitioners in both the above mentioned writ petitions, had prayed that in the event of the dismissal of their writ petitions, the petitioners, who have become overaged, may be considered for grant of age relaxation in case of future recruitment for the post of Process Servers on account of their having worked on the said posts for number of years. We feel that this prayer is justified and hence the respondents are directed to grant the petitioners age relaxation equal to the period, they have worked with the respondents on the post of process servers, at the time of future recruitment on the said posts in accordance with the rules. In view of the above discussion, we do not find any ground to interfere with the impugned orders. Hence both the writ petitions are dismissed with the abovesaid directions. ( JASWANT SINGH ) JUDGE January 10, 2008 ( JASBIR SINGH ) manoj JUDGE