Kailash
Chander Sharma Vs. State of Haryana & Ors [1989] INSC 347 (16 November 1989)
Ramaswamy,
K. Ramaswamy, K. Misra Rangnath Sawant, P.B.
CITATION:
1990 AIR 454 1989 SCR Supl. (2) 189 1989 SCC Supl. (2) 696 JT 1989 (4) 316 1989
SCALE (2)1122
ACT:
Civil
Services: Assistant District Attorney--Appointment of-Undertaking given by
State--Compliance of--Direction issued.
HEAD NOTE:
In a
group of cases filed in this Court in connection with recruitment to the posts
of Assistant District Attorneys by the State Public Service Commission. The
Respondent-State had undertaken that if any post was to be filled up within one
year, candidates who were selected by the Public Service Commission but had not
been appointed, would be appointed in the order of merit. However, the
petitioner, who was selected by the Public Service Commission and, assigned
39th position in the order of merit, was not given the appointment, and a fresh
notification was issued by the Public Service Commission for selecting
candidates for 27 posts. Therefore, the petitioner filed a writ petition in
this Court alleging that the respondents had arbitrarily and illegally denied
him his right to appointment to the posts.
The
respondent-State contended that since only 37 posts were earmarked for general
candidates and no vacancy had arisen before the expiry of one year, the
petitioner could not be appointed as per the undertaking given by the State.
Disposing
of the Writ Petition, this Court,
HELD:
When this Court had given the direction on the undertaking given by the State
that selected candidates would be appointed in vacancies that would arise
within one year, it was expected that the State Government would comply with
the spirit and substance of the direction, and not to avoid compliance on the
technical plea of expiry of the one year period. The Court would not permit the
State to avoid implementation of the order made by it on any technical or
unjustified stand. [192E-F] It is incredible to believe that within one year
even one vacancy had not arisen when 27 posts were subsequently notified for
direct 190 recruitment. It would be obvious, and it is common knowledge, that
vacancies keep arising as and when the incumbents of such posts either retire
or resign or new posts are created. On the fact-situation arising out of the
record of the proceeding, it has to be concluded that some of these 27
vacancies did arise within the one year period set by this Court but the State
Government delayed action to allow the year to run out and to free itself from
the purview of the direction. [192C, D-F] The petitioner, therefore, became
entitled to be considered for appointment to the post of Assistant District
Attorney and given appointment in accordance with the rules.
The
respondents would accordingly appoint the petitioner against one of the posts
subject to physical fitness. [192G]
CIVIL
ORIGINAL JURISDICTION: Writ Petition (C) No. 1157 of 1988.
(Under
Article 32 of the Constitution of India) R.K. Kapoor, Mrs. Anil Katiyar (not present) for the Petitioner.
Rajinder
Sachar and Mahabir Singh for the Respondents.
The
Judgment of the Court was delivered by K. RAMASWAMY, J. This writ petition
under Article 32 of the Constitution is a sequel to the order passed by this
Court in Sat Der Parasher, etc. etc. v. State of Haryana, in Writ Petition Nos. 887 of 1986 and a batch of connected
Special Leave Petitions. Transfer Petitions etc. etc. in December, 1985. The
State of Haryana made on different dated ad hoc
appointments to the posts of Assistant District Attorney. Applications were
invited by the Haryana Public Service Commission to make recruitment to the
posts of Assistant District Attorney. The ad hoc appointees filed writ
petitions under Article 32 and also Special Leave Petitions against the
judgment of the High Court of Punjab & Haryana. Their main contention was
that they have been regularly recruited though on ad hoc basis after interview
by a duly constituted Committee and that they were entitled to be regularised.
This Court while disposing of the cases held that the petitioners therein were
appointed only on ad hoc basis till suitable candidates were available for
regular appointment. The interim orders passed on different dates were vacated.
It was observed that "if amongst the said petitioners any person has been
appointed regularly by the Public Service Commission subsequently he shall hold
the post pursuant to the order issued on the recommendation of the Public
Service Commission. This order of dismissal will not affect him. The petitions
are disposed of accordingly.
The
candidates who have been selected by the 191 Public Service Commission shall be
appointed by the State Government on regular basis and any stay order passed by
this Court against their appointment is vacated. These petitions are accordingly
allowed. Dr. Y.S. Chitale, learned counsel for the State, submits that if any
post of the Assistant District Attorney is to be filled up within one year,
candidates who are selected by the Public Service Commission but have not been
appointed shall be appointed in the order of merit ...... "The petitioner
was, admittedly, selected by the Haryana Public Service Commission, as
communicated by letter dated May 7, 1986,
with his Roll No. 446.
He
stood at Serial No. 39 in the order of merit among sixty six selected
candidates. In the counter affidavit filed in the earlier group of petitions by
the State of Haryana it was admitted that 39 posts were
to be filled from among the selected general candidates. The petitioner having
been selected on merit and assigned the 39th position, was also entitled to be
appointed as Assistant District Attorney. It is the petitioner's case that the
respondents have arbitrarily and illegally denied him his right to appointment
as Assistant District Attorney. It is his case that several representations
made in this regard received no consideration constraining him to approach this
Court for issuance of a Writ of Mandamus or order or direction to the
respondents to give his due appointment. In the counter affidavit, it is admitted
that the petitioner was selected by the Public Service Commission and he stood
at Serial No. 39, but the posts earmarked for the general candidates were 37.
Consequently, the petitioner could not be appointed. This Court seeing the
specific admission made on the earlier occasion that 39 posts were earmarked
for general candidates, called upon the respondents to explain the
contradictory stand set up in the present case. A further affidavit was filed
stating that averments of earmarking 39 posts for general candidates is a
typographical mistake. The total number of posts notified were 57, the breakup
of which is that 11 posts were reserved for Scheduled Castes, six posts were
reserved for Backward Classes and three posts were reserved for NSML and the
remaining 37 were to be filled up from general candidates. They regretted the
typographical error committed in the earlier affidavit. It is also admitted
that subsequent notification was issued by the Public Service Commission to
select 27 candidates to fill up 27 posts of Assistant District Attorneys, but
claiming to be, after the expiry of the one year limit set by this Court. The
stand taken by the respondents in their counter affidavit and argued by their
counsel is that the direction issued by this Court referred to herein before
was strictly adhered to and appointments were given to all the selected
candidates. No vacancy had arisen before the expiry of one year as indicated in
the judgment, and therefore, the 192 petitioner could not be appointed as per
the undertaking given by the counsel for the State. The petitioner has no
fundamental right to appointment. He has to apply afresh and take his chance
for selection by the Haryana Public Service Commission.
The
admitted fact is that the petitioner was one among the selected candidates
standing at Serial No. 39 in the order of merit by the Public Service
Commission and was recommended for appointment to the post of Assistant
District Attorney. The counsel for the State had given an unequivocal undertaking
that if any vacancies arise within one year from the date of the judgment, the
candidates selected and recommended by the Public Service Commission shall be
appointed to those posts in the order of merit. It is uncredible to believe the
averment of the State that within one year even one vacancy in the post of
Assistant District Attorney had not arisen for appointment when 27 posts were
subsequently notified for direct recruitment. It is not their case that all the
27 vacancies had suddenly arisen on a particular date just after the expiry of
one year. It would be obvious and it is common knowledge that vacancies kept
arising as and when the incumbents of such posts either retire or resign or new
posts are created. When this Court had given the direction on the undertaking
given by the State that selected candidates would be appointed in vacancies in
the said posts that would arise within one year, it was expected that the Haryana
State Government would comply with the spirit and substance of the direction,
and not to avoid compliance on the technical plea of expiry of the one year
period. We wanted to know the definite dates when the twenty seven vacancies
arose but the details have not been placed on the record inspite of the Court's
query.
On the
fact-situation arising out of the record of the proceeding, it has to be
concluded that some of these twenty seven vacancies did arise within the one
year period set by this Court in its earlier order but the State Government
delayed action to allow the year to run out and to free itself from the purview
of the direction. The Court would not permit the State to avoid implementation
of the order made by it on any technical or unjustified stand. In these
circumstances, we are of the considered view that the petitioner became
entitled to be considered for appointment to the post of Assistant District
Attorney and given appointment in accordance with the rules. The respondents
are, accordingly, directed to appoint the petitioner against one of the posts
of Assistant District Attorney subject to physical fitness. No costs.
N.P.V.
Petition disposed of.
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