Virender
S. Hooda & Ors Vs. State of Haryana & ANR [1999] INSC 67 (13 March 1999)
G.T.
NANAVATI, S.RAJENDRA BABU. RAJENDRA BABU, J :
Haryana
Public Service Commission, respondent No. 2 herein [hereinafter referred to as
'the Commission'] advertised for recruitment to the Haryana Civil Service
(Executive Branch) and other allied services which included 12 posts of Haryana
Civil Service (Executive Branch), 7 in general category and 5 in reserved
category. The appellants submitted their applications. Appellant No. I was, in
fact, holding the post of Excise and Taxation Officer. All the appellants gave
their preference to the Haryana Civil Service (Executive Branch), while
appellant No. I gave preference only for such service. The Commission held the
written examination for the 1991 and interviewed the candidates who had passed
the written examination in May, 1992 and a final result was published on June 19, 1992. The appellants did not rank
sufficiently high, but appellants Nos. 2 and 3 were offered appointments as
Excise and Taxation Officer and Tehildar respectively. They joined duty also.
Thereafter, the first appellant filed a writ petition being Civil Writ Petition
No. 6057 of 1994 which was summarily dismissed by a Division Bench of the High
Court on May 12, 1994. The matter was carried to this
Court when appellants Nos. 2 and 3 got themselves impleaded. By an order made
on October 30, 1995, this Court disposed of the matter but gave liberty to the
appellants to file a proper writ petition before the High Court for getting
appointments on the basis of earlier selection bearing in mind the circulars
issued on March 22, 1957 and March 26, 1972. Subsequently, the three appellants
presented a writ petition. The contention put forth before the High Court and
reiterated before us is that the Government of composite Punjab had issued instructions prescribing
the procedure to be adopted by the Commission that apart from those selected
against the vacancies all notified additional vacancies which arise within six
months from the recommendation of the names could be filled up from amongst the
names recommended by the Commission. Similar instructions were also issued by
the Government of Haryana on May 26, 1972. Respondent
No. I requested the Commission for concurrence to fill up 30 vacancies of Haryana
Civil Service (Executive Branch) for the year 1992 under proviso to Rule 5 of
the Punjab Civil Services (Executive Branch) Rules. The cadre strength of the Haryana
Civil Service (Executive Branch) was stated to be 240 and at present its total
strength was only 129 and there was a shortfall of 111. There were 23 vacant
posts to be filled up by direct recruitment and it was dear that 12 posts for
direct recruitment were vacant when the advertisement was made for examination
which was held in 1991. Appellant No. I received a letter from the Commission
that he was not selected as he had not come in the merit and he came to know
that he had secured rank at serial No. 8 in the general category and that ne
could not be selected for the post because there were only seven vacancies. The
case put forward by the appellants is that, as per Annexure P-8, the Public
Service Commission issued in 1992 an advertisement No. 7 for recruitment to 9
posts of Haryana Civil Service (Executive Branch) in general category. The
result of the selection of candidates pursuant to advertisement issued in 1989
was declared on June 19, 1992 and advertisement No. 7 was issued in 1992 within
a period of six months and so there was necessity of further selection and the
said 9 vacancies in general category in advertisement No. 7 has to be
accommodated by candidates who are already in the waiting list/panel of 1989
recruitment.
The
High Court dismissed the writ petition on the basis that (i) the appellants
have not given any explanation for the time gap of almost four years between
their appointment to the service and the date on which the writ petition was
filed and the unexplained delay of over three years and eight months
disentitled them from seeking relief;
(ii) the
administrative instructions cannot be read as making it obligatory for the
appointing authority to appoint candidates in excess of the advertised posts;
and (iii) the claim for directing the respondent to make appointment against
posts which became available after the initiation of the process of recruitment
is not justified. On behalf of the appellants all these three conclusions
reached by the High Court are assailed, while the learned counsel for the
respondents supported the view taken by the High Court.
So far
as the first conclusion recorded by the High Court is concerned, it is dear
that this Court, while disposing of the appeal filed by appellants, made clear
that it would be open to the appellants to file a proper writ petition before
the High Court for putting forth appropriate contentions on the basis of
earlier selection in the context of circular dated March 22, 1957 read with
circular dated May 26, 1972. This order was passed by this Court on October 13, 1995 and the appellants filed a writ
petition on January 29,
1996. Particularly
when appellants Nos. 2 and 3 were allowed as co-petitioners in the special
leave petition before this Court, we do not think that the High Court was
justified in deciding against the appellants on the ground of laches. The fact
that there were further vacancies available and when 9 vacancies were
advertised to be filled up within a period of six months after announcement of
the previous selection cannot be disputed at all. In terms of circulars issued
by the Government on March 22, 1957 and May 26, 1972 when such vacancies arise
within six months from the receipt of the recommendation of the Public Service
Commission they have to be filled up out of the waiting list maintained by the
Commission. In respect of the vacancies which arise after the expiry of six
months it is necessary to send the requisition to the Commission. It is also
made clear that if the Commission makes recommendations regarding a post to the
department and additional vacancies occur in the department within a period of
six months on the receipt of the recommendations, then the vacancies which
occur later on can be filled in from amongst the additional candidates
recommended by the Commission. It is urged on behalf of the appellants that
letter dated January 7,
1992 indicated that
the cadre strength in the Haryana Civil Service (Executive Branch) was 440 and
the officers filling these posts were around 129 and there was shortfall of III
and 23 posts had to be filled up by direct recruitment. Thus 12 posts for
direct recruitment were vacant when the advertisement for recruitment was made
which was held in 1991. Therefore, the appellants case ought to have been
considered when some of the vacancies arose by reason of non-appointment of
some of the candidates. Therefore, the Government ought to nave considered the
case of the appellants as per the rank obtained by them and the appellants had
to be appointed if they came within the range of selection. Thus when these
vacancies arise within the period of six months from the date of previous
selection the circulars are attracted and hence the view of the High Court that
vacancies arose after selection process commenced has no relevance and is
contrary to the declared policy of the Government in the matter to fill up such
posts from the waiting list.
The
view taken by the High Court that the administrative instructions cannot be
enforced by the appellant and that vacancies became available after the
initiation of the process of recruitment would be looking at the matter from a
narrow and wrong angle. When a policy has been declared by the State as to the
manner of filling up the post and that policy is declared in terms of rules and
instructions issued to the Public Service Commission from time to time and so
long as these instructions are not contrary to the rules, the respondents ought
to follow the same.
Therefore,
we have no hesitation in directing the respondents to consider the cases of the
appellants for appointment to posts of Haryana Public Service (Executive
Brach). However, it is made clear that the appellants shall be fitted to the
post ranking below to those who had been selected along with the appellants at
the time of recruitment made pursuant to result declared on June 19, 1992. The
appellants will be fitted in appropriate posts and they will accord appropriate
scale of pay by giving them the benefit of increments, if any, but they will
not be entitled to any monetary benefits for the period for which they have
been kept out of employment. Let such action be taken by the Government
expeditiously but not later than a period of three months.
The
appeal is accordingly allowed. However, in the circumstances of the case, there
will be no order as to costs.
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