Balwant Singh Narwal
& Ors. Vs. State of Haryana & Ors.  INSC 1053 (8 July 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2098 OF 2007 Balwant
Singh Narwal & Ors. ....... Appellants State of Haryana & Ors. ......
R. V. Raveendran J.
This appeal by
special leave is preferred by the writ petitioners in CWP No.18727 of 2003
being aggrieved by the dismissal of their writ petition by the Punjab &
Haryana High Court by judgment dated 5.10.2004.
appellants, appointed as Principals between 1995 and 2000 (either by
direct recruitment or promotion) are aggrieved by the seniority given to
respondents 4 to 16 appointed as Principals on 26.5.2000, with
retrospective effect from 2.6.1994.
Haryana Public Service Commission - the third respondent (`Commission' for
short) issued an advertisement in January, 1992 inviting applications for
18 posts of temporary Principals in higher secondary schools. The
advertisement made it clear that the number of posts advertised was
subject to variations to any extent. On 1.6.1993, the State Education
Department made a fresh requisition to the Commission in regard to
additional vacancies, thereby increasing the posts to be filled to 37.
Respondents 4 to 16
were applicants against the said advertisement and underwent the process of
selection. The Commission declared the merit list of 30 selected candidates on
30.9.1993 (published on 1.10.1993), which included Respondents 4 to 16.
However, before the State Government could make appointment in terms of the
said list, a non-selected candidate filed WP No.12700 of 1993 contending that
only 18 posts were notified and the Commission could not make recommendations
for selection of 30 candidates. The said writ petition was allowed by a learned
Single Judge of the Punjab & Haryana High Court on 4.4.1994 and the
recommendations in excess of the 18 vacancies were quashed on the ground that
the Commission could not make recommendations beyond the number of posts
advertised. A Division Bench dismissed the appeal against the judgment of the
learned Single Judge on 18.1.1999. In the meanwhile, in view of the order of
the learned Single Judge, the State Government appointed only 16 candidates
from the list of 30 by order dated 2.6.1994. The State Government appointed
only 16 as against 18 permitted by the High Court, not for want of vacancies
but on account of some technical difficulty in appointing other two candidates.
4 to 16 who were denied appointments, though their names were in the
selected merit list of 30 candidates, challenged the order dated 18.1.1999
of the Division Bench. This Court by interim order dated 10.5.1999
directed that 12 vacancies may not be filled until final disposal by this
Court. Ultimately, this Court disposed of the appeals filed by respondents
4 to 16 (Civil Appeal Nos.6976-6977 of 1999) by order dated 6.12.1999,
reversing the decision of the High Court and dismissing the writ petition
before the High Court. This Court held :
"In this view of
the matter, on the admitted position that on the date of the recommendation
made by the Public Service Commission on 1.10.1993 the Government's requisition
was for the posts more than 18 (in fact 37), we see no bar on the power of the
Commission in recommending 30 names which was the subject matter of challenge
before the High Court. In fact the very judgment itself on which the learned
Single Judge has relied upon in para 10 indicates the said position.
Accordingly, we set aside the impugned order passed by the learned Single Judge
and affirmed by the Division Bench in appeal and hold that the recommendations
made by the Commission in accordance with law and therefore, all the 30 names
recommended are entitled to be appointed." (emphasis supplied)
pursuance of the said judgment, the State Government by order dated
26.5.2000 appointed respondents 4 to 16 as Principals. The said
respondents gave several representations dated 19.7.2000, 5.9.2000,
4.10.2000, 10.10.2000 and 11.10.2000 for fixing their seniority with
reference to the merit list published by the Commission on 1.10.1993. They
pointed out that but for the litigation, they would have been appointed
along with the other 16 candidates on 2.6.1994 and as their selection was
in regard to vacancies which were notified in January, 1992, they should
be given seniority above those who were appointed against subsequent
vacancies. The State Government considered and accepted their request and
fixed their position immediately after the 16 candidates who were appointed
from the same merit list on 2.6.1994. As a result, they have been shown
above the appellants in the provisional seniority list of Principal
aggrieved the appellants filed CWP No.18727 of 2003 before the Punjab
& Haryana High Court. They contended that the selection by the
Commission being merely recommendatory does not imply automatic employment
and therefore candidates selected by the Commission are not entitled to
claim seniority on the basis of selection or from the date of selection.
They submitted that seniority of respondents 4 to 16 should be reckoned
only from the date of their actual appointment, namely, 26.5.2000. They
also contended that granting notional seniority to respondents 4 to 16
with retrospective effect would affect them as they had already entered
into service prior to respondents 4 to 16.
High Court rejected the writ petition by the impugned order dated
5.10.2004. It held that appointments of respondents 4 to 16 were in regard
to an advertisement issued prior to the advertisement, in response to
which the appellants were selected; that the actual appointment of
respondents 4 to 16 was delayed not for want of any vacancies but on
account of litigation which were beyond their control; that but for the
decision rendered by the learned Single Judge on 4.4.1994 declaring
selections beyond 18 to be illegal, they would have been appointed on
2.6.1994 when the other candidates from the said merit list were
appointed; and that therefore, the State Government was justified in
giving respondents 4 to 16 benefit of notional seniority with effect from
2.6.1994 and placing them above the appellants who were appointed against
said decision is challenged by the appellants reiterating the contentions
urged before the High Court. Reliance was also placed on the 6 decisions
of this Court in the State of Madhya Pradesh vs. Prem Prakash - 1994 (1)
SCC 432; Dr. Chander Prakash vs. State of UP - 2002 (10) SCC 710 and State
of Uttaranchal vs. Dinesh Kumar Sharma - 2007 (1) SCC 687, and other cases
which lay down the general proposition that selection by Public Service
Commission is merely recommendatory and does not imply automatic
appointment and that the appointing authorities should not give notional
seniority without valid reason, from a retrospective date, which would
affect the seniority of those who have already entered service.
is no dispute about these general principles. But the question here is in
regard to seniority of the respondents 4 to 16 selected on 1.10.1993
against certain vacancies of 1992-93 who were not appointed due to
litigation, and those who were selected against subsequent vacancies. All
others from the same merit list declared on 1.10.1993 were appointed on 2.6.1994.
Considering a similar situation, this Court, in Surender Narayan vs. State
of Bihar - 1998 (5) SCC 246, held that candidates who were selected
against earlier vacancies but who could not be appointed along with others
of the same batch due to certain technical difficulties, when appointed
subsequently, will have to be placed above those who were appointed
against subsequent vacancies.
Court while allowing the appeals by respondents 4 to 16 by order dated
6.12.1999 made it clear that all the 30 persons recommended by the
Commission as per merit list dated 1.10.1993, including respondents 4 to
16 are entitled to be appointed. The State Government submitted that but
for the order dated 4.4.1994 of the High Court, Respondents 4 to 6 would
have been appointed on 2.6.1994 itself. The order dated 4.4.1994 was
ultimately set aside by this Court and respondents 4 to 16 who were
consequently appointed should not be denied the benefit of seniority.
Therefore the State
Government was justified in giving them only notional seniority and placing
them immediately below the other 16 candidates selected in the common merit
list (published on 1.10.1993) and appointed on 2.6.1994. Respondents 4 to 16
have been given retrospective seniority not from the date of their selection as
wrongly assumed by appellants, but from 2.6.1994 when other selected candidates
in their merit list were appointed.
view of the above, we find no reason to interfere with the order of the
High Court and these appeals are accordingly dismissed.
[R. V. Raveendran]