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PETITIONER: KAILASH CHANDER SHARMA

       Vs.

RESPONDENT: STATE OF HARYANA AND ORS.

DATE OF JUDGMENT16/11/1989

BENCH: RAMASWAMY, K. BENCH: 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.

HEADNOTE:     In  a group of cases filed in this Court  in  connection with  recruitment to the posts of Assistant District  Attor- neys   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  Commis- sion 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 candi- dates  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  appoint- ment 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  knowl-

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edge, 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 consid- ered  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]

JUDGMENT:     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  Peti- tioner. 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  regu- lar  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 commu- nicated 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

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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  arbi- trarily 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  considera- tion 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.  Conse- quently,  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  stat- ing that averments of earmarking 39 posts for general candi- dates 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  candi- dates.  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  Dis- trict 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  Dis- trict  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

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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  peti- tioner  became entitled to be considered for appointment  to the  post of Assistant District Attorney and given  appoint- ment  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. 193