Singh & Ors Vs. Haryana State Electricity Board & Ors  INSC 669 (7 May 1996)
G.T. (J) Nanavati G.T. (J) Agrawal, S.C.
(J) Nanavati, J.
1996 SCC (4) 319 JT 1996 (5) 219 1996 SCALE (4)354
APPEAL NO. 7789 OF 1996 (Arising out of SLP(C) No.24555 of 1995) Shanti Prakash
and others V. The Haryana State Electricity Board and others WITH
CIVIL APPEAL NO. 7790 OF 1996 (Arising out of SLP(C) No.25996 of 1995) Haryana
State Electricity Board V. Shri Satbir Singh Bura and ors
granted in the two SLPs. Heard learned counsel appearing in all the three
appeals arise out of the judgment and order passed by the High Court of Punjab
and Haryana in Civil Writ Petition No. 4012 of 1993. Along with that writ
petition the High court also disposed of Civil Writ Petition Nos. 4716, 4885,
5301, 5987, 6024, 6427, 7310, 7884, 8068 of 1993 and 15534 of 1994. The High
Court allowed all the writ petitions and declared the selection/appointments of
Respondents 2 to 214 in those writ petitions as illegal and quashed the same.
125 selected candidates have filed Civil Appeal No.3423 of 1996 and Civil
Appeal arising out of SLP(C) No.24555 of 1995. The Civil Appeal arising out of
SLP(C) No.25996 of 1995 has been filed by the Haryana State Electricity Board
(hereinafter referred to as the 'Board' ) which appointed them.
questions which arise for consideration in these appeals are:
Whether it was open to the Board to prepare a list of as many as 212 candidates
and appoint as many as 137 out of that list when the number of posts advertised
was only 62?
Whether the High Court was justified in quashing the selection of all the 212
candidates and appointments of 137?
October 1993 the Board decided to fill up 62 vacant posts of Junior Engineers
by direct recruitment. By an advertisement published on 2.11.1991 applications
were invited from eligible candidates. 15 posts were reserved for scheduled
castes and scheduled tribes candidates, 6 for backward classes and 9 for exservicemen.
The last date for receiving applications was 4.12.1991. The advertisement
mentioned qualifications necessary for those posts and it was further stated
therein that preference will be given to the candidates having higher qualification.
Large number of applications were received and after screening 5955 applicants
were found eligible. 893 candidates appeared for interview in July 1992. The
selection committee selected 212 and recommended their names in April 1993. The
Board after considering the latest vacancy position as on 11.2.1993 decided on
2.4.1993 to fill up 147 posts. Following the instructions of the State
Government relating to reservation of posts, the Board distributed vacant posts
4 ----------------------------------- Total 147
----------------------------------- It also decided to reduce the share of
general category by 24 posts as there was a backlog of that many posts reserved
for scheduled castes. Accordingly, the Chief Engineer of the Board who was the
appointing authority was directed to fill up the vacant posts in different
categories as under:
Scheduled Castes 53
Backward Classes 15
Physical Handicapped 4 -------------------------------------------------- Total
147 -------------------------------------------------- The Chief Engineer was
able to appoint 138 candidates shortly thereafter.
of the candidates who were not selected/appointed and one person who became
eligible soon after the last date for receiving applications challenged the
selection/appointments by filing the aforesaid writ petitions in the High
following four contentions were raised before the High Court.
The Board acted in violation of Articles 14 and 16 of the Constitution in
selecting as many as 212 candidates and appointing 147 even though the posts
advertised were only 62.
real benefit was given to the candidates possessing higher qualifications even
though it was represented in the advertisement that preference would be given
to the candidates possessing higher qualifications.
About 150 candidates were interviewed every day by each of the three selection
committees. Each candidate was interviewed for a very short time. Thus the
worth of the candidate was not properly assessed and this defect vitiated the
entire process of selection.
many as 50 marks were earmarked for viva voce test and that defect also
vitiated the entire selection.
respect to the third contention it was stated by the Board in its counter
affidavit that each selection committee had in fact interviewed about 69
candidates only on each day and on an average each candidate was interviewed
for about 8 to 9 minutes. As this contention was thus found to be factually
incorrect the High Court rejected the same.
High Court also rejected the fourth contention relying upon the decision of
this Court in Anzar Ahmad vs. State of Bihar and others 1994(1) SCC 150. The
decision of the High Court on these two points is not challenged before us and,
therefore, they need no further consideration. The High Court upheld the first
contention as it was of the opinion that the Board committed a breach of the
equality clause contained in Articles 14 and 16 of the Constitution because it
was not fair and open to the Board to take into consideration 85 more posts
which became. available after the date of the advertisement while preparing the
select list and making appointments. As regards the second contention the High
Court did not find any substance in the submission that the Board should have,
in the first instance, selected only those candidates who possessed higher
qualifications and that it could have considered others only if persons possessing
higher qualifications were not found otherwise suitable. But it upheld the
contention that as the Board had decided to give preference to the candidates
possessing higher qualifications it could not have made the selection
"without specifying any advantage to the candidates". In absence of
any explanation given by the Board at the time of hearing of the writ petitions
"as to how many marks were fixed for those having the minimum
qualifications and how many marks were fixed for those having the higher qualifications"
the High Court held that the Board did not "at all keep in mind the
contents of the advertisement while laying down the criteria for award of
marks". This omission and deviation from the condition mentioned in the
advertisement, according to the High Court, resulted in denying benefit of
higher qualifications to the petitioners and other similarly situated persons.
The High Court, therefore, allowed the petitions and quashed the selection and
appointments made by the Board.
contended by Mr. P.P.Rao, learned senior counsel appearing for the appellants
in Civil Appeal No.3423 1996 and the learned counsel appearing for the other
appellants that the High Court wrongly held that the Board had either
overlooked or deviated from the condition that preference would be given to
those candidates who possessed higher qualifications. It was submitted that
though in the counter affidavit filed by the Board the correct position in this
behalf was not properly explained, the record produced before the court clearly
disclosed that the selection committee had before hand decided the norm as
regards the manner in which preference was to be given for higher
qualifications. It has been stated in SLP(C) No.24555 of 1995 and it is not
denied by the respondents that the selection committee had adopted the norm of
giving more marks for higher qualifications. It had given 2 marks to the
candidates possessing diploma qualification and had obtained upto 75% marks. 3
marks were given to those candidates who possessed diploma and had obtained
more than 75% marks and also to them who had obtained B.E. or B.Tech. degrees.
Those who possessed AMIE degree were given 4 marks. 5 marks were given to those
candidates who possessed M.E. or M.Tech.
On the basis of this material it can be said that weightage was in fact given
for higher qualifications. The High Court was, therefore, not right in holding
that the benefit of higher qualifications was denied to those candidates who
possessed them. We are also of the opinion that it was not necessary to
indicate in advance to the candidates the manner in which benefit of higher
qualifications was to be given to them. Once we find that the selection
committee had fixed the norm in this behalf in advance and that norm was applied
uniformly to all the candidates it will have to be held that it acted in a fair
manner and did not contravene the provisions of Articles 14 and 16 of the
Constitution. The learned counsel for the respondents, however, tried to
support the finding of the High Court on this point by contending that in view
of the representation made in the advertisement what was required to be done by
the Board was to consider first those candidates who had higher qualifications
and the candidates with lesser qualifications could have been considered only
thereafter. This contention was rejected by the High Court, and in our opinion
rightly. Ordinarily, giving of preference for higher qualifications would imply
that other things being equal the candidates with higher qualifications will be
preferred. The representation made in the advertisement did not imply or convey
that the selection was to be made in two stages, that is, firstly, the
candidates having higher qualifications were to be considered and only
thereafter the candidates with minimum qualifications were to be considered and
that too if adequate number of candidates possessing higher qualifications did
not become available. Therefore, the contention raised on behalf of the
respondents has to be rejected.
next contended by the learned counsel for the appellants that selection of
candidates in excess of the number of posts advertised does not per se offend
the equality guaranteed by Articles 14 and 16 of the Constitution. It was
submitted that in view of delay which was likely to take place in the process
of selection and appointments it was permissible to the Board to take into
consideration anticipated vacancies and make provision for the same also. They
further submitted that the High Court should not have quashed the selection and
set aside the appointments at the instance of original writ petitioners as in
any case they were not selected by the selection committee and, therefore, were
not likely to get any benefit by getting the selection and appointments invalidated.
The learned counsel also questioned the locus stand of the writ petitioners as
all of them except one had taken part in the process of selection without any
objection They also pointed out that Petitioner No.3 in Writ Petition No. 4012
of 1993 was not even eligible to be considered for the post on the last date
for receiving applications.
opinion, there is no substance in the objection raised with respect to locus
stand of the original writ petitioners. The candidates could not have anticipated
when they appeared for the interview that the Selection Committee would
recommend candidates and the Board would make appointments far in excess of the
advertised posts. The petitioner who was not eligible had a just grievance that
due to appointments of candidates in excess of the posts advertised he was
deprived of the right of consideration for appointment against the posts which
would have become vacant after he acquired eligibility.
factual position in this case, as disclosed by the record, is that on 15.10.90
the Board decided to fill up 62 vacant posts of Junior Engineers by direct
recruitment. On 2.11.90 the Board advertised those 62 vacant posts and invited
applications by 4.12.90. In the notification of vacancies required to be issued
under the Employment Exchange Act and the Rules also the vacancies notified
After the posts were advertised and published but before appointments could be
made 13 more posts became vacant because of retirement and 12 because of
deaths. Meanwhile, the Board also created 60 new posts of Junior Engineers. The
stand taken by the respondent-Board before the High Court was that by April
1993, 85 more posts had become vacant.
when 62 posts were advertised there was a backlog of 62 posts of Junior
Engineers and that was through oversight not taken into consideration. Out of
the said backlog of 62 posts 36 posts were of direct recruitment quota and this
had come to the notice of the Board in December 1991. There was a backlog of 24
posts belonging to reserved category. It was for these reasons that on 2.4.1993
the Secretary of the Board had written to the Chief Engineer who was the
appointing authority that as the list of 212 candidates selected by the
selection committee was received and as 147 posts were vacant as on 11.2.93 he
should fill up all those vacant posts as directed therein. Out of the said list
the Board was able to appoint 138 candidates.
submitted by the learned counsel for the appellants that the selection process
which had started on 2.11.91 was completed in April 1993 when the selection
committee forwarded the list of selected candidates to the Secretary of the
Board. In view of this long lapse of time and large number of posts remaining
vacant it was permissible to the Board to make appointments in excess of the
number of posts advertised, If the Board had not filled up those posts then its
work would have suffered adversely.
submitted that bearing in mind these realities the High Court should have
adopted a pragmatic approach and refrained from quashing the selection and
appointments made by the Board. In support of these contentions the learned
counsel relied upon one decision of the Punjab and Haryana High Court and some decisions of this Court.
Chander Sharma and others vs. State of Haryana 1984(1) SLR 165 the facts were
that as against 60 advertised posts the Public Service Commission had
recommended almost double the number and more than 60 candidates were appointed
on the basis of that selection.
upon the earlier decision of the same High Court in Sachida Nand Sharma and
others vs. Subordinate Services Selection Board. Haryana decided on 1.6.83 it
was contended that all appointments beyond 60 should be invalidated. The High
Court distinguished its earlier decision in Sachida Nand Sharma's case (supra)
and held that if the State adopted a pragmatic approach by taking into
consideration the existing vacancies in relation to the process of selection
which sometimes take a couple of years and made appointments in excess of the
posts advertised, then such an action cannot be regarded as unconstitutional.
Kumar Yadav and others vs. State of Haryana 1985 Suppl. (1) SCR 657 what had happened was that Haryana Public
Service Commission had invited applications for recruitment to 61 posts in Haryana
Civil Service and other allied Services. The number of vacancies rose during
the time taken up in the written examination and the viva voce test and thus in
all 119 posts became available for being filled. The Haryana Public Service
Commission, therefore, selected and recommended 119 candidates to the
Petitions were filed in the High Court of Punjab and Haryana challenging the
validity of the selections on various grounds. The High Court set aside the
selection as it was of the view that the selection process was vitiated for
more than one reason. On appeal, this Court also found substance in the
contention that the Haryana Public Service Commission was not justified in
calling for interview candidates representing more than 20 times the number of
available vacancies and that the percentage of marks allocated for the viva
voce test was unduly excessive. Yet this Court did not think it just and proper
to set aside the selections made by the Haryana Public Service Commission as by
that time two years had passed and the candidates selected were already
appointed to various posts and were working on those posts since about two
A.V. Bhogeshwarudu vs. Andhra Pradesh Public Service Commission J.T. 1989(4) SC
130 the process of selection had started in 1983 and was completed in 1987. The
vacancies that arose in between were also sought to be accommodated from the
recruitment list prepared by the State Public Service Commission. The point
which arose for consideration was if out of the names recommended for
appointments some candidates did not join, whether the vacancies remaining
unfilled can be filled from out of the remaining successful candidates. This
Court held that there was no justification in insisting that instead of filling
up the vacancies by recommended candidates a fresh selection list should be
made. This decision is, therefore, not relevant for the purpose of this appeal.
So also, the cases of Neelima Shangla vs. State of Haryana 1986 (3) SCR 785 and
Shankarsan Dash vs. Union of India 1991 (2) SCR 567 cited by the learned
counsel for the appellants are of no help as the point involved in those cases
was altogether different.
Singh vs. State of Haryana 1993 (4) Suppl. SCC 377, a requisition was sent to
select candidates for appointment on 6 posts of Inspectors of Police by
advertisement dated January 22, 1988. Applications were invited for the said 6
posts. Subsequent to the written examination but prior to the physical test and
interview a revised request for 8 more posts was sent. The Board recommended 19
names out of which 18 persons were given appointments. Those appointments were
challenged before the Punjab and Haryana High Court and it was
held that appointments beyond 8 posts were illegal. On appeal this Court held
that since requisition was for 8 posts, the Board was required to send its
recommendation for 8 posts only.
Court further observed: The appointment on the additional posts on the basis of
such selection and recommendation would deprive candidates who were not
eligible for appointment to the posts on the last date for submission of
applications mentioned in the advertisement and who became eligible for
appointment thereafter, of the opportunity of being considered for appointment
on the additional posts because if the said additional posts are advertised
subsequently those who become eligible for appointment would be entitled to
apply for the same. The High Court was, therefore, right in holding that the
selection of 19 persons by the Board even though the requisition was for 8
posts only, was not legally sustainable".
case of State of Bihar vs. Secretariat Assistant Successful Examinees Union
1986 and Others 1994 (1) SCC 126, the Bihar State Subordinate Services
Selection Board had issued an advertisement in the year 1985 inviting
applications for the posts of Assistants falling vacant upto the year 1985-86.
The number of vacancies as Then existing was announced on August 25,1987, the examination was held in
November 1987 and the result was published only in July 1990. Immediately
thereafter out of successful candidates 309 candidates were given appointments
and the rest empanelled and made to wait for release of further vacancies.
Since the vacancies available uptil December 31, 1988 were not disclosed or communicated
to the Board no further appointment could be made. The empanelled candidates,
after making an unsuccessful representation to the State Government approached
the Patna High Court which directed them to be appointed in vacancies available
on the date of publication of the result as well as the vacancies which had arisen
upto 1991. The State appealed against that decision and this Court held that
the direction given by the High Court for appointment of empanelled candidates
according to the merit list against the vacancies till 1991 was not proper and
cannot be sustained. This Court further observed that since no examination was
held since 1987 persons who became eligible to compete for appointments were
denied the opportunity to take the examination and the direction of the High
Court would prejudicially affect them for not fault of theirs. However, keeping
in view the fact situation of the case this Court upheld the appointments made
on the posts falling vacant upto 1988 and quashed the judgment of the High
Court which directed the filling up of the vacancies of 1989, 1990 and 1991
from out of the list of the candidates who had appeared in the examination held
case of Gujarat State Dy. Executive Engineers' Association vs. State cf Gujarat
1994 Supp (2) SCC 591 the following question arose for consideration:
"What is a waiting list?; can it be treated as a source of recruitment
from which candidates may be drawn as and when necessary";
lastly how long can it operate?" Though this question was examined in the
context of Executive Engineers (Civil) Gujarat Service of Engineers Class I
Recruitment Rules, 1979 the following observations made by this Court are of
general application. Therein this Court has observed:
a waiting list should operate and what is its nature may be Governed by the
rules. Usually it is linked with the selection or examination for which it is
prepared. For instance, if an examination is held say for selecting 10
candidates for 1990 and the competent authority prepares a waiting list then it
is in respect of those 10 seats only for which selection or competition was
held. Such lists are prepared either under the rules or even otherwise mainly
to ensure that the working in the office does not suffer if the selected
candidates do not join for one or the other reason or the next selection or
examination is not held soon.
once the selected candidates join and no vacancy arises due to resignation etc.
or for any other reason within the period the list is to operate under the
rules or within reasonable period where no specific period is provided then
candidate from the waiting list has no right to claim appointment to any future
vacancy which may arise unless the selection was held for it.
following observations made therein are also relevant:- "Appointment in
future vacancies from waiting list prepared by the Commission should be an
exception rather than the rule. It has many ramifications.
was no contingency nor the State Government had taken any decision to fill the
vacancies from the waiting list as it was not possible for it to hold the
examination nor any emergent situation had arisen except the claim of some of
the candidates from the waiting list that they should be given appointment for
vacancies which arose between 1380 and 1983 and between 1983 and 1993. The
direction of the High Court, therefore, to appoint the candidates from the
waiting list in the Vacancies which, according to its calculation, arose
between the years 1980 to 1983 and between 1983 to 1993 cannot be upheld."
However, on equitable considerations this Court did not set aside appointments
of those candidates who were appointed in pursuance of the decision of the High
Court but gave appropriate directions for securing ends of justice.
308) this Court held that the advertisement and the whole selection process
were meant only for 32 vacancies.
process came to an end as soon as these vacancies were filled up. If the same list
has to be kept alive for the purpose of filling up of other vacancies, it would
amount to deprivation of rights of other candidates who would have become
eligible subsequent to the said advertisement and the selection process.
State of Bihar vs. Madan Mohan Singh and others 1994 Supp (3) SCC 308 this
Court has in terms held that if the advertisement and the consequent selection
process were meant only to fill up certain number of vacancies then the meant
list will hold good for the purpose of filling up those notified vacancies and
no further. In that case 32 vacancies were advertised but a select list of 129
candidates was prepared. A question arose whether more candidates could be
appointed on the basis of the said select list. This Court held that once the
32 vacancies were filled up the process of selection for those 32 vacancies got
exhausted and came to an end. It was further held that if the same list has to
be kept subsisting for the purpose of filling up other vacancies also that
would naturally amount to deprivation of rights of other candidates who would
have become eligible subsequent to the said advertisement and selection
the questions which fell for consideration in Madan Lal and others vs. State of
J & K 1995 (3) SCC 486 was whether preparation of meant list of 20
candidates was bad as the vacancies for which the advertisement was issued by
the Commission were only 11 and the requisition that was sent by the Government
for selection was also for those 11 vacancies. This Court held that the said
action of the Commission by itself was not bad but at the time of giving actual
appointments the meant list had to be so operated that only 11 vacancies were
filled up. The reason given by this Court was that as the requisition was for
11 vacancies the consequent advertisement and recruitment could also be for 11
vacancies and no more. This Court further observed:
is easy to visualize that if requisition is for 11 vacancies and that results
in the initiation of recruitment process by way of advertisement, whether the
advertisement mention filling up of 11 vacancies or not, the prospective
candidates can easily find out from the Office of the Commission that the
requisition for the proposes recruitment is for filling up 11 vacancies. In
such a case a given candidate may not like to compete for diverse reasons but
if requisition is for larger number of vacancies for which recruitment is
initiated, he may like to compete.
the actual appointment to the posts have to be confined to the posts of
recruitment to which requisition is sent by the Government. In such an
eventuality, candidates excess of 11 who are lower in merit list of candidate
can only be treated as wait-listed candidates in order of merit to fill only
the 11 vacancies for which recruitment has been made, in the event of any high
candidate not being available to fill the 11 vacancies for any reason. Once the
11 vacancies are filled by candidates taken in order of merit from the select
list that list will get exhausted, having served its purpose". It may also
be stated that while making the aforesaid observations this Court agreed with
the contention that while sending a requisition for recruitment to posts the
Government can keep in view not only actual vacancies than existing but Also
the above discussion of the case law it becomes clear that the selection
process by way of requisition and advertisement can by started for clear
vacancies and also for anticipated vacancies but not for future vacancies If
the requisition and advertisement are for certain number of posts only the
State cannot make more appointments than the number of posts advertised, even
though it might have prepared a select list of more candidates. The State can
deviate from the advertisement and make appointments on posts falling vacant
thereafter in exceptional circumstances only or in an emergent situation and
that too by taking a policy decision in that behalf. Even when filling up of
more posts than advertised is challenged the Court may not, while exercising
its extra-ordinary jurisdiction, invalidate the excess appointments and may
mould the relief in such a manner as to strike a just balance between the
interest of the State and the interest of persons seeking public employment.
What relief should be granted in such cases would depend upon the facts and
circumstances of each case.
present case, as against the 62 advertised posts the Board made appointments on
138 posts. The selection process was started for 62 clear vacancies and at that
time anticipated vacancies were not taken into account.
strictly speaking, the Board was not justified in making more than 62
appointments pursuant to the advertisement published on 2.11.1991 and the
selection process which followed thereafter. But as the Board could have taken
into account not only the actual vacancies but also vacancies which were likely
to arise because of retirement etc. by the time the selection process was
completed it would not be just and equitable to invalidate all the appointments
made on posts in excess of 62. However, the appointments which were made
against future vacancies - in this case on posts which were newly created -
must be regarded as invalid. As stated earlier, after the selection process had
started 13 posts had become vacant because of retirement and 12 because of
deaths. The vacancies which were likely to arise as a result of retirement
could have been reasonably anticipated by the Board. The Board through
oversight had not taken them into consideration while a requisition was made
for filling up 62 posts. Even with respect to the appointments made against
vacancies which arose because of deaths, a lenient view can be taken and on
consideration of expediency and equity they need not be quashed. Therefore, in
view of the special facts and circumstances of this case we do not think it
proper to invalidate the appointments made on those 25 additional posts. But
the appointments made by the Board on posts beyond 87 are held invalid. Though
the High Court was right in the view It has taken. we modify its order to the
aforesaid extent. These appeals are allowed accordingly. No order as to costs.