Anil Kumar and ors. Vs. State of Haryana and anr. - Court Judgment

Excerpt:
service - appointment - petitioners were selected as patwari in physically handicapped category and underwent field training and training exams - petitioners got compartments and thereafter appeared for those exams - state refused to declare their results and did not provide appointment letters - hence, present petition - held, state rightly decided not to offer appointments due to increased expenditure liability on account of pay revision which has resulted in fiscal deficit of state - further no feasible right is with petitioners to appointment merely on basis of selection - thus, court directed state to give relaxation in eligibility to petitioners whenever fresh selections are made - petition disposed of accordingly - hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - other-wise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. as has been noticed above, in the impugned order it has been clearly mentioned that out of total number of 1088 posts of patwaris 1055 were advertised by one advertisement and 33 posts were advertised by another advertisement.ajay tewari, j.1. the petitioners have claimed appointment to the posts of patwari by way of this writ petition.2. on 11.12.1997, an advertisement was issued by the director, land records, hary-ana (respondent no. 2) for filling up 33 posts of patwari, which were reserved for physically handicapped persons in view of the handicapped (equal opportunity, reservation of rights with full participation) act, 1995 (for short 'the act'). the petitioners, being handicapped persons, applied for the said posts. they were called for interviewed between 18.5.1998 to 3.6.1998. the result was declared on 27.10.1998 and all the petitioners were selected. thereafter, they completed their training in the patwar training school and appeared for the test. after completion of the patwar training, the petitioners also went for six months field training. the result of the patwar training examination was declared on 3.1.2000, wherein only petitioner no. 5 cleared all the papers, while the other persons got compartments in one or two papers. oh 7.3.2001, all the other petitioners appeared in the compartment exams also.3. at this stage, it would be apposite to refer to some related collateral facts also. by an earlier advertisement dated 7.9.1997, the haryana staff selection commission had advertised 1055 posts of patwari. the applicants against that advertisement participated in the written test, which was held on 29.11.1998 followed by interviews between 8.4.1999 to 20.4.1999. the result was announced on 22.5.1999. since appointment letters had not been issued to those selected candidates, they filed c.w.p. no. 16605 of 1999. the state had taken a plea that due to increased expenditure liability on account of pay revision, there was rise in fiscal deficit of the state and the government had taken a decision not to offer appointments to the selected candidates. the said writ petition was initially disposed of by order dated 23.5.2000, whereby a direction was issued to the respondents therein to send for training to atleast that number of candidates who were equal to those sent for training in the last session. the said order was challenged by the respondents by way of s.l.p. no. 13397 of 2000, state of haryana v. jai bhagwan and ors. and by order dated 9.2.2001, the hon'ble supreme court remanded the matter back to this court for a fresh decision and further directed that pending disposal status quo would be maintained regarding filling up of the posts. it is not disputed that the said writ petition bearing c.w.p. no. 16605 of 1999 was disposed of by a division bench of this court by judgment dated 11.2.2009 in the following terms :13. we are of the view that having regard to long time which has elapsed since the selection of the petitioners i.e about 10 years and the settled law that the petitioners do not have any indefeasible right to appointment merely on the basis of selection, no case is made out for issuance of mandamus for appointment of the petitioners. the judgments relied upon being on individual facts are distinguishable. however, the petitioners having been once selected and having regard to the stand taken by the learned counsel for the state, we direct that the petitioners be given relaxation in eligibility as and when fresh selections for the said posts are made.4. coming back to the case of the petitioners, the petitioners had filed c.w.p. no. 15051 of 2002 for a direction to the respondents to declare their result of patwar training examination, and for the issuance of appointment letters. the said writ petition was disposed of by this court by order dated 9.2.2002 directing the petitioners to file a representation which was to be decided by the respondents within three months. by the impugned order dated 13.1.2003, the said representation has been rejected. it is in these circumstances, the petitioners are before this court. counsel for the petitioners has contended that their cases are totally different to the cases of those petitioners who had filed c.w.p. no. 16605 of 1999. the reasons for this, as per the learned counsel, are that firstly, the petitioners were recruited against a different advertisement; secondly, they belong to a different class being handicapped persons; and thirdly, the petitioners in c.w.p; no. 16605 of 1999 were abandoned after the declaration of the result, whereas the petitioners in the present case undertook the patwar training, the field training and also appeared for the compartment exams. during this time, they were paid from government funds. thus, the government not only invested money but also spent time in training the petitioners and, therefore, the doctrine that mere selection does not give a right of appointment would not apply to these petitioners since, as per the learned counsel, they had travelled much further than the stage of mere selection.5. it is further argued that it is not only that the petitioners have enforceable right, it is also in the public interest that the petitioners be appointed considering the expense and time which have been spent on training the petitioners.6. learned counsel for the petitioners has relied upon a decision of this court in c.w.p. no. 16376 of 1999, davender kumar and ors. v. state and ors. decided on 31.1.2007, wherein it was held as follows:it may be that in the year 1999, persons selected by the haryana subordinate services selection board as gram sachivs could not be appointed as haryana state had abolished octroi w.e.f 1.11.1999 and had proposed to absorb the surplus staff working for the octroi in various municipal committees, still it is a fact that various writ petitions had been filed in the years 1999 and 2000, which remained pending till this date and by this time, more than 600 posts of gram sachivs are available and are to be filled by way of new selection by the haryana subordinate services selection board. it cannot at all be said that gram sachivs selected by way of duly conducted process in the year 1999, were at fault, in any way. a large number of them had filed writ petitions in this court, which have remained pending anc now time has come when the respondent-state have again proposed to fill up the posts now available, which are more in number than the persons so selected in the year 1999.no defect has been pointed out as far as selection process for the posts of gram sachivs in the year 1999, is concerned.in the facts and circumstances of the case, it would be appropriate that the candidates selected fpr the posts of gram sachivs in the year 1999 be first absorbed now against available vacancies and then the remaining available posts be filled by further selection process. the contention of the state counsel that during this time many more persons would have become eligible and many of the selected candidates might have become over-age, cannot be given much weight as the persons already selected were not at fault and if many new persons have become eligible, they can always compete for the remaining posts.7. it is argued that the present case is similar in so much as no fault has been found in the selection of the petitioners and vacancies are available against which the petitioners can be adjusted.8. it may be noticed that in the impugned order, it has been recorded that total 1088 posts of patwari were vacant in the directorate of land records haryana as on 31.3.1997. out of them, 1055 posts were advertised by one advertisement and 33 posts (reserved for physically handicapped persons) were advertised by another advertisement. since the selection of 1055 patwaris was likely to take a long time, it was decided that 33 persons selected under the handicap category along with four who had been given appointments under ex-gratia scheme be sent for patwar training. while their training etc. was going on, a select list against 1055 vacancies was also sent. thereafter, the matter was taken up with the government for opening of patwar schools, but at that stage the government decided that due to revised pay scales and other factors, the fiscal deficit was increasing and, therefore, the selected candidates would not be appointed. in the result, vide letter dated 16.3.2000, the government decided to abolish all posts which had been lying vacant for two years as on 29.2.2000. as a consequence of this decision, 1069 posts of patwaris were abolished. the impugned order further records that in the meanwhile, c.w.p. no. 16605 of 1999 had been disposed and, as mentioned above, the hon'ble supreme court remanded the case and had directed maintenance of status quo. ultimately, it was held as follows:from the above mentioned facts, it is clear that in the orders of the hon'ble high court dated 9.2.2001, the directions are that for filling up the vacancies of patwari status-quo be maintained, therefore, by declaring the result of the departmental examination of the handicapped candidates they cannot be appointed on the post of patwari.9. in the written $tatement, filed by the respondents, all these factors have been pleaded in defence.10. learned counsel for the petitioners has also argued that since in the impugned order ultimately the reason mentioned for denying appointments to the petitioners was the fact of status quo, the respondents could not be heard to urge any further ground in the written statement. reliance is placed on mohinder singh gill and anr. v. the chief election commissioner, new delhi and ors. a.i.r. 1978 s.c. 851, wherein a constitution bench of the hon'ble supreme court held as follows:when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. other-wise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.11. learned counsel for the petitioners further relied upon a judgment of this court in naveen kumar v. union of india and ors. 2007(1) r.s.j. 270, wherein a division bench again reiterated the principles expounded in the case of mohinder singh gill and anr. (supra).12. i have given my anxious consideration to the matter. as regards the first contention of the petitioners that their cases are entirely different to the cases of those persons who had filed c.w.p. no. 16605 of 1999 is concerned, i am of the opinion that merely because a separate advertisement was issued for the petitioners or that the petitioners are handicapped persons would not mitilate against the fact that 30 posts which were advertised for the petitioners were an integral part of those 1069 posts which were abolished. once that fact is established it would be necessary to have a bird's eye view on the litigation spawned by that event. originally, c.w.p. no. 16605 of 1999 was disposed of with a direction to the respondents to send for training at least that number of candidates equally to those sent for training in the last session. meaning thereby this court had held that the selected candidates would have a right at least to be considered for a certain number of posts. that judgment was set aside by the hon'ble supreme court when the matter was remanded, thus, accepting the primary contention of the state that the matter regarding entitlement of the selected candidates had to be re-determined.13. once i have reached the conclusion that the posts against which the petitioners were selected were amongst those posts which were abolished, the petitioners would definitely be covered by the extracted para of the judgment in c.w.p. no. 16605 of 1999 (supra). the allegation that the petitioners were recruited against a different advertisement or that they belong to a different class, being handicapped or that they undertook the training or the examination and were paid from government funds would not have the effect of placing them on a completely different footing than the petitioners in c.w.p. no. 16605 of 1999. as regards the argument that in the impugned order, the only reason mentioned for denying appointment to the petitioners was the effect of status quo and that the respondents could not be heard to urge any further ground in the written statement, the sarne is also fallacious. as has been noticed above, in the impugned order it has been clearly mentioned that out of total number of 1088 posts of patwaris 1055 were advertised by one advertisement and 33 posts were advertised by another advertisement. thus, the observations in the case of mohinder singh gill and anr. (supra) would not apply to the impugned order.14. in the circumstances, this writ petition is disposed of in the same terms as c.w.p. no. 16605 of 1999.