IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision:
09. .11.2012 1. LPA No.1509 of 2010 Baljit and others ...Appellants Versus State of Haryana and others ..Respondents.
2. LPA No.1579 of 2010 Usha Rani and others ..Appellants Versus State of Haryana and others ..Respondents 3. LPA No.1616 of 2010 Bhim Singh and others ..Appellants Versus State of Haryana and another ..Respondents 4. LPA No.1768 of 2010 Subhash ..Appellant Versus State of Haryana and others ..Respondents 5. LPA No.168 of 2011 Daljit Singh and others ..Appellants Versus State of Haryana and others ..Respondents 6. LPA No.289 of 2011 State of Haryana and another ..Appellants Versus Dharam Singh and others ..Respondents LPA No.1509 o”
2. 7. LPA No.294 of 2011 State of Haryana and others ..Appellants Versus Darshan Singh and others ..Respondents 8. LPA No.416 of 2011 Baru Ram ..Appellant Versus State of Haryana and others ..Respondents 9. LPA No.851 of 2012 Rattan Kumar and others ..Appellants Versus State of Haryana and another ..Respondents 10. LPA No.854 of 2012 Satyavir Sharma and others ..Appellants Versus State of Haryana and another ..Respondents 11. LPA No.1603 of 2012 Kitab Singh and others ..Appellants Versus State of Haryana and another ..Respondents 12. CWP No.1630 of 2011 Sham Sunder and others ..Petitioners Versus State of Haryana and another ..Respondents 13. CWP No.8068 of 2012 LPA No.1509 o”
3. Balram ..Petitioner Versus State of Haryana and others ..Respondents 14. CWP No.5972 of 2012 Usha Kherpa ..Petitioner Versus State of Haryana and another ..Respondents 15. CWP No.7912 of 2012 Sushil Kumar ..Petitioner Versus State of Haryana and another ..Respondents 16. CWP No.9760 of 2011 Raj Singh and others ..Petitioners Versus State of Haryana and others ..Respondents 17. CWP No.22711 of 2010 Rajbir Singh and others ..Petitioners Versus State of Haryana and another ..Respondents 18. CWP No.22871 of 2010 Kiran May and others ..Petitioners Versus State of Haryana and others ..Respondents 19. CWP No.23224 of 2010 Balwan Singh and others ..Petitioners Versus State of Haryana and others ..Respondents 20. CWP No.23403 of 2010 LPA No.1509 o”
4. Mukand Singh and others ..Petitioners Versus State of Haryana and others ..Respondents 21. CWP No.86 of 2011 Jagbir Singh and others ..Petitioners Versus State of Haryana and others ..Respondents 22. CWP No.11575 of 2011 Hawa Singh ..Petitioner Versus State of Haryana and others ..Respondents 23. CWP No.1374 of 2011 Balbir Singh and others ..Petitioners Versus State of Haryana and others ..Respondents 24. CWP No.5708 of 2011 Dharambir Singh and others ..Petitioners Versus State of Haryana and others ..Respondents 25. CWP No.1709 of 2011 Ravi Kumar and others ..Petitioners Versus State of Haryana and others ..Respondents CORAM: HON'BLE MR. JUSTICE A.K.SIKRI, CHIEF JUSTICE. HON'BLE MR. JUSTICE RAKESH KUMAR JAIN.
1. Whether Reporters of local papers may be allowed to see the judgment ?.
2. Whether to be referred to the Reporters or No.?.
3. Whether the judgment should be reported in the Digest?. LPA No.1509 o”
5. Present : Mr. Ashok Sharma Nabhewala, Advocate, for the appellants. Mr. C.M.Chopra, Advocate, for the appellants in LPA No.1579 of 2010. Mr. Rajesh Hooda, Advocate, for the appellants In LPA Nos. 851 of 2012, 1603 of 2012, 854 of 2012. Mr. Rajiv Atma Ram, Senior Advocate with Mr. Vikas Kuthiala, Advocate for the petitioners in CWP Nos. 22871 of 2010, 5972 of 2011 & 7912 of 2012, Mr. S.B.Kaushik, Advocate, for the appellants in LPA No.416 of 2011 and 168 of 2011. Mr. Neeraj Kumar, Advocate, for the appellants in LPA No.1616 of 2010. Mr. K.G.Chaudhary, Advocate, for the petitioner In CWP No.8068 of 2012. Mr. R.S.Mittal, Senior Advocate with Mr. Sudhir Mittal, Advocate, for the petitioners In CWP No.22711 of 2010. Mr. Sanjiv Sheoran, Advocate, for the petitioners In CWP Nos. 86 of 2011, 5708 of 2011, 23224 of 2010, 23403 of 2010. Mr. R.K.Malik, Sr. Advocate with Mr. Samrat, Advocate, for the petitioners in CWP Nos. 11575 of 2011 and 1374 of 2011. Mr. Gaurav Mohunta, Advocate, for the petitioner In CWP No.1630 of 2011. Mr. Ajit Sihag, Advocate, for the petitioners In CWP No.1709 of 2011. Mr. B.S.Rana, Addl. Advocate General, Haryana, for the respondent-State of Haryana. **** A.K.SIKRI, CHIEF JUSTICE This is a batch of 11 Letters Patent Appeals which have arisen out of judgment dated 03.08.2010 passed by the learned Single Judge in two writ petitions and 14 writ petitions claiming same relief. These 11 Letters Patent Appeals have emanated therefrom in the following manner:- LPA No.1509 o”
6. LPA Nos.1509, 1579 and 1768 of 2010 have been filed by the petitioners and non-petitioners of CWP Nos.3429 of 2009 and 53 of 2009 challenging the judgment and order dated 3.8.2010 passed in the aforesaid two writ petitions. By the aforesaid order, the learned single Judge had identified the number of available vacancies in respect of the subject matter of the writ petition to be 12 and had directed the same to be filled up on the basis of inter-se merit of the writ petitioners. Such of the petitioners, who are appellants before us, contend that the number of the vacancies worked out by the learned single Judge as 12 is incorrect and there were more vacancies whereas the appellants who are non- petitioners, apart from supporting the aforesaid stand, also contend that the learned single Judge ought to have directed appointments on the basis of inter-se merit of the selected candidates and not restricted such appointments to the inter-se merit of the writ petitioners only. LPA Nos.289 and 294 of 2011 have been filed by the State against the very same order of the learned single Judge dated 3.8.2010 insofar as the direction for appointment on the basis of inter-se merit of the writ petitioners is concerned. LPA Nos.416 and 168 of 2011 and LPA No.1616 of 2010 arise out of more or less similar orders passed by two other Single Benches whereas Civil Writ Petitions No.5972 of 2011 and 22871 of 2010 and other writ petitions and Letters Patent Appeals have been filed in connection with the same matter raising similar issues. This is how all these 11 Letters Patent Appeals were clubbed together and heard by us. At this stage itself we would like to mention that numbers of miscellaneous applications have also been filed in these proceedings by many others who were not parties to the writ petitions decided by the learned Single Judge(s) or even in the writ petitions bearing No.5972 of 2011 and 22871 of LPA No.1509 o”
7. 2010. However, the applicants in these Civil Miscellaneous Applications are also those persons who had participated in the selection and are claiming appointments to the posts on the basis of their inter-se merit in the merit list prepared by the State on the basis of the said examination. Thus the scope of the writ petitions which were decided by the learned Single Judge(s) has been expanded considerably by filing two writ petitions as well and the entire gamut of dispute is before us in these 11 Letters Patent Appeals and 14 civil writ petitions and miscellaneous applications. To put in nut-shell, the petitioners who have filed the writ petitions which have been allowed by the learned Single Judge (s) are pressing that the appointments be offered only to these writ petitioners who had approached the Court well in time. Others who had not come to the Court earlier and are not before us in the form of two writ petitions filed in the year 2011 or other writ petitions or by way of miscellaneous applications filed even thereafter in those writ petitions submit that when the appointments are to be made it should be on the basis of the merit list of the selected candidates and cannot be restricted to the original petitioners only. Under what circumstances such disputes arose can be gauged from the following factual backdrop:- The Selection Service Board Haryana issued Advertisement No.4 of 1987 dated 22.07.1987 inviting applications for recruitment for the post of Clerks in the various departments in the State of Haryana. A list of 5373 candidates was declared on 15.10.1989 and out of which candidates upto merit No.4645 were appointed. LPA No.1509 o”
8. Some of the selected candidates who were not given the appointments, precisely 43 in number, filed a writ petition in this Court seeking mandamus to the State to give them the appointments. This was decided on 03.08.2010 by the learned Single Judge of this Court directing appointments of first 12 meritorious petitioners against 12 vacancies lying vacant with the State on the basis of inter-se merit of these 12 petitioners. This order was passed on the premise that there were 12 vacancies lying vacant with the State. Thus, the petitioners out of 43 in respect of whom no favourable orders were passed, challenged the order of the learned Single Judge by filing Letters Patent Appeals. Suffice it to state that after a series of litigation ultimately the matter went up to the Supreme Court. It was finally decided by the Supreme Court vide judgment dated 19.08.1998 in case titled as Roshni Devi Vs. State of Haryana 1998(8) S.C.C.
59. The Supreme Court after extensive and thorough discussion of the entire matter gave the following directions:- “(1) The appointments already made from out of the list prepared on 15.10.1989 will not be annulled. (2) The last person who is stated to have been appointed being at serial No.4645, persons occupying higher position than him could be considered for appointment to the post of clerk if there exists any vacancy for them. (3) The vacancy in this context would mean the vacancies which were available in the State of Haryana prior to the advertisement issued for selecting persons for the said post for the year 1995. It is to be made clear that if no vacancies exist on the aforesaid date then no LPA No.1509 o”
9. further appointment would be made from out of the list prepared on 15.10.1989 notwithstanding the directions of the Punjab and Haryana High Court in Sudesh Kumari’s case. (4) If vacancies did exist on the date as aforementioned, then the appointments from out of the list prepared on 15.10.1989 could be made strictly on the basis of their merit position in the list. (5) We strongly deprecate the practice of selecting and preparing an unusual large list compared to the vacancy position and the State Govt. should either amend the recruitment rules in that respect and till then should issue positive administrative instructions giving the right to the Selection Board to select only some persons in excess than the requisition for which the Board is going to select people. (6) We also do not approve of the inaction on the part of the State Govt. in not assailing the judgment of the Punjab and Haryana High Court in Sudesh Kumari’s case and not coming up before us making submissions that the judgment is practically incapable of being implemented.”
. After the aforesaid judgment of the Supreme Court, the matter was taken up by this Court in Contempt Petition No.203 of 1999 titled as Sita Ram Versus R.S.Verma and others, which was filed on the ground that the judgment was not properly implemented. In the said Contempt Petition, the State Government filed an affidavit stating that as many as 145 vacancies were LPA No.1509 o”
10. ascertained between the period 15.10.1989 to 18.11.1993 and out of which 92 candidates were appointed in the various departments and 25 vacancies could not be filled up due to non-availability of candidates of higher qualification. The 28 vacancies belonging to Ex-Servicemen could not filled upto due to non-availability of the candidates. Some of those who could not be appointed filed Civil Writ Petition No.2391 of 2001 titled as Ramesh Chand and others Versus State of Haryana and others which was allowed on 14.03.2002 with the directions to comply with the order of Hon’ble Supreme Court of India in Roshni Devi case (supra) on 18.09.1998 in letter and spirit. That thereafter a mercy petition filed by the present appellants, His Excellency Governot of Haryana on 29.06.2004 directed the appointment of all the 43 appellants, however, this order was not conveyed to the State. In the meantime, successor His Excellency Governot of Haryana on 02.08.2004 reviewed the previous order in favour of the appellants. Thereafter, the appellants filed two Civil Writ Petitions bearing No.53 of 2009 titled as Darshan Singh and others Vs. State of Haryana and others and 3429 of 2009 titled as Dharma Singh and others Versus State of Haryana which was disposed of learned Single Judge vide impugned judgment dated 03.08.2010. This has given rise to the filing of Letters Patent Appeals and Civil Writ Petitions as well as Civil Miscellaneous Applications as already pointed out above. When these cases were heard by the Division Bench on 27.03.2012, taking note of the aforesaid facts, this Court observed that first and the foremost question and infact the only question for significance was to ascertain the correct LPA No.1509 o”
11. number of vacancies available on the relevant date in terms of the order of the Supreme Court. The Court, however, felt dismayed with the State Government as it was not coming forward to give the correct figure about the number of vacancies and contradictory stands were taken by the State Government in different affidavits filed in these Letters Patent Appeals and in absence thereof no firm conclusion could be reached as it was necessary in the first instance to find out the availability of number of vacancies between the two crucial dates identified by the Supreme Court in Roshni Devi’s case (supra) i.e. 15.09.1989 to 18.11.1995. A direction was accordingly given to the Chief Secretary of the State to explain the situation and be present in Court herself or depute another senior officer conversant with the facts. On the next date of hearing, Chief Secretary, Haryana appeared who took time to give the precise information in regard to the availability of the vacancies after ascertaining the actual figures from different departments. Eight weeks time was granted to the State of Haryana to complete the exercise and lay before the Court necessary information in the form of an affidavit of the competent authority. On 07.07.2012, an affidavit has been filed by the Chief Secretary to Government of Haryana in Letters Patent Appeal No.1509 of 2010. In this affidavit, it is stated that there were 214 vacancies which remain unfilled during the aforesaid period and after the orders of the Court from time to time, 111 candidates had already been offered the appointments and therefore 103 vacancies still remained vacant. Though even not the issues are raised about the veracity of the aforesaid statement as the Government is LPA No.1509 o”
12. coming out with different figures at different times, we have no option but to proceed on the aforesaid information as case has been delayed abnormally because of want of this information and as it was not appropriate to wait further, arguments of all the parties were heard. As against the aforesaid vacancies, we have large number of persons before us and number of these persons is much more than the available vacancies. It is for this reason the original petitioners, who filed these writ petitions and are litigating the matter for the last number of years, contend that they be given preference in giving the appointment and those who are latecomers and never approached the Court earlier should not be accommodated. To this brigade, there is a second category of 61 persons who filed Civil Writ Petition No.2391 of 2001 after the judgment of the Supreme Court in Roshni Devi’s case (supra) in the year 1998 which was allowed on 14.03.2002. Thereafter, 34 petitioners filed Civil Writ Petition No.53 of 2009 and 9 persons filed Civil Writ Petition No.3429 of 2009 which have been decided by the impugned judgment dated 03.08.2010. Then there is a 4th category of the persons who have filed Writ Petitions No.5972 of 2011 and 22871 of 2010. To this, 5th category has joined namely those applicants who have filed applications for impleadment during pendency of these proceedings. In this back drop, the question that arise for consideration is as to what criteria should be preferred, namely, whether it should be on the basis of merit of the entire examination or preference is to be given to those who had approached the Court by ignoring of late entrance who filed petitions in the years 2009 or LPA No.1509 o”
13. 2011 or for not sought their impleadment by filing Civil Miscellaneous Applications. Certain judgments have been relied upon by learned counsel for the parties on both sides to buttress their respective submissions. However, we are of the opinion that we need not to refer or consider those judgments as in the present case the judgment of the Hon’ble Supreme Court in Roshni Devi’s case (supra) governs the fields and necessary directions have already been given in this very judgment. Direction No.4 clearly maintains that if the vacancies exist during the period in question, the appointments could be made strictly on the basis of their merit position in the list. This direction read with direction No.2 which maintains that any persons occupying higher position than Sr. No.4645 (who was the last person appointed) is to be considered for appointment in case vacancies exist for them. A cumulative reading of these directions provides complete answer and the course of action which is to be chartered. It is clear from the above that the Court had directed that the appointments are to be made strictly on the basis of merit position in the list prepared by the State on the basis of selection. It does not leave any room for the original writ petitioners to argue that others who did not approach the Court should be excluded. Even when they had not approached the Court, the Supreme Court had given the directions to operate the merit list for filling up of the vacancies that exist between 15.10.1989 and 18.11.1995. In doing so, those persons who are above Sr. No.4645 are to be accommodated first obviously in order of their merit that would LPA No.1509 o”
14. automatically take care of making appointments on the basis of merit position in the list. Infact the Government has so far proceeded on this basis itself. The position of the appointments made has been stated by the State Government in its reply stating that the same is done strictly on the basis of their merit position in the selection list against the available vacancies in the following words:- “From the perusal of the aforesaid directions of the Hon’ble Apex Court, it reveals that appointment from the select list dated 15.10.1989 are required to be made from the persons occupying above merit No.4645 to the post of Clerk strictly on the basis of their merit position in the list, if there exists any vacancy for them. Pursuant to the directions of the Hon’ble Apex Court, vide its judgment dated 18.09.1998 in Civil Appeal No.4900 of 1998 and the Hon’ble High Court judgment dated 14.03.2002 in Civil Writ Petition No.2391 of 2001- Ramesh Chand and others Vs. State of Haryana and others and order dated 5.8.2002 in LPA No.741 of 2002 in CWP No.2391 of 2001, the respondent-Commission has already recommended the names of the eligible candidates strictly on the basis of their merit position in the select list against the available vacancies in the respective category covering the category wise merit position as under:- General Category :
592. SC category :
3855. BC category :
1605. ESM category (12 posts): No candidate of ESM category was available and the respondent- Commission recommended the names of the petitioners in CWP No.3429 of 2009 and 53 of 2009 on the basis of their inter-se merit as per orders of the Hon’ble High Court dated 3.8.2010. LPA No.1509 o”
15. However, in LPA No.289 of 2011- State of Haryana Vs. Dharam Singh and LPA No.294 of 2011- Dharma Singh Vs. State of Haryana, the Hon’ble High Court has stayed the operation of the order dated 3.8.2010.”
. We thus set-aside the direction of the learned Single Judge given in the order dated 03.08.2010 or other orders which confined to the filling up the posts on the basis of the inter-se merits of the writ petitioners alone. Instead, it is directed that 103 numbers of vacancies which according to the State of Haryana still exist pertaining to the period 15.10.1989 to 18.11.1995 shall be filled up strictly on the basis of the merit position in the merit list prepared by the respondents. With the aforesaid directions, all the aforesaid Letters Patent Appeals and Civil Writ Petitions are disposed of. (A.K.SIKRI) CHIEF JUSTICE 09 11.2012 (RAKESH KUMAR JAIN) 'ravinder' JUDGE