Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2098 OF 2007

Balwant Singh Narwal & Ors. ……. Appellants

Vs.

State of Haryana & Ors. …… Respondents  

J U D G M E N T  

R. V. Raveendran J.  

This appeal  by special  leave is  preferred by the  writ  petitioners in

CWP No.18727  of  2003  being  aggrieved  by  the  dismissal  of  their  writ

petition by the Punjab & Haryana High Court by judgment dated 5.10.2004.

The appellants, appointed as Principals between 1995 and 2000 (either by

direct  recruitment  or  promotion)  are  aggrieved  by the  seniority  given  to

respondents 4 to 16 appointed as Principals on 26.5.2000, with retrospective

effect from 2.6.1994.

2. The  Haryana  Public  Service  Commission  –  the  third  respondent

(‘Commission’ for short) issued an advertisement in January, 1992 inviting

applications  for  18  posts  of  temporary  Principals  in  higher  secondary

schools. The advertisement made it clear that the number of posts advertised

was subject to variations to any extent.  On 1.6.1993, the State Education

Department  made  a  fresh  requisition  to  the  Commission  in  regard  to

additional  vacancies,  thereby  increasing  the  posts  to  be  filled  to  37.

Respondents  4  to  16  were  applicants  against  the  said  advertisement  and

underwent the process of selection. The Commission declared the merit list

of  30  selected  candidates  on  30.9.1993  (published  on 1.10.1993),  which

included Respondents 4 to 16. However, before the State Government could

make appointment in terms of the said list, a non-selected candidate filed

WP No.12700 of 1993 contending that only 18 posts were notified and the

Commission  could  not  make  recommendations  for  selection  of  30

candidates. The said writ petition was allowed by a learned Single Judge of

the Punjab & Haryana High Court on 4.4.1994 and the recommendations in

excess of the 18 vacancies were quashed on the ground that the Commission

could not make recommendations beyond the number of posts advertised. A

Division Bench dismissed the appeal against  the judgment of the learned

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Single Judge on 18.1.1999. In the meanwhile, in view of the order of the

learned Single Judge, the State Government appointed    only 16 candidates

from  the  list  of  30  by  order  dated  2.6.1994.  The  State  Government

appointed only 16 as against 18 permitted by the High Court, not for want

of vacancies but on account of some technical difficulty in appointing other

two candidates.  

3. Respondents  4  to  16  who were  denied  appointments,  though  their

names were in the selected merit list of 30 candidates, challenged the order

dated 18.1.1999 of the Division Bench. This Court by interim order dated

10.5.1999 directed that 12 vacancies may not be filled until final disposal by

this  Court.  Ultimately,  this  Court  disposed  of  the  appeals  filed  by

respondents 4 to 16 (Civil Appeal Nos.6976-6977 of 1999) by order dated

6.12.1999, reversing the decision of the High Court and dismissing the writ

petition before the High  Court. This Court held :  

“In this view of the matter, on the admitted position that on the date of the recommendation made by the Public Service Commission on 1.10.1993 the Government’s requisition was for the posts more than 18 (in fact 37), we  see  no  bar  on  the  power  of  the  Commission  in  recommending  30 names which was the subject matter of challenge before the High Court. In fact the very judgment itself on which the learned Single Judge has relied upon in para 10 indicates the said  position. Accordingly, we set aside the impugned order passed by the learned Single Judge and affirmed by the Division Bench in appeal and hold that the recommendations made by the Commission  in  accordance  with  law  and  therefore,  all  the  30  names recommended are entitled to be appointed.”  

(emphasis supplied)

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4. In pursuance of the said  judgment,  the  State Government  by order

dated  26.5.2000  appointed  respondents  4  to  16  as  Principals.  The  said

respondents  gave   several  representations  dated   19.7.2000,  5.9.2000,

4.10.2000,  10.10.2000  and  11.10.2000  for  fixing  their  seniority  with

reference to the merit list published by the Commission on 1.10.1993. They

pointed out that but for the litigation, they would have been appointed along

with the other 16 candidates on 2.6.1994 and as their selection was in regard

to vacancies which were notified in January, 1992,  they should be given

seniority  above those  who  were  appointed  against  subsequent  vacancies.

The State Government considered and accepted their request and fixed their

position immediately after the 16 candidates who were appointed from the

same merit list on 2.6.1994. As a result, they have been shown above the

appellants in the provisional seniority list of Principal H.E.S.-II.  

5. Feeling aggrieved the appellants filed CWP No.18727 of 2003 before

the Punjab & Haryana High Court. They contended that the selection by the

Commission  being  merely  recommendatory  does  not  imply  automatic

employment and therefore candidates selected by the Commission are not

entitled  to  claim seniority  on  the  basis  of  selection  or  from the  date  of

selection. They submitted that seniority of respondents  4 to 16 should be

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reckoned only from the date of their actual appointment, namely, 26.5.2000.

They also contended that granting notional seniority to respondents 4 to 16

with retrospective effect would affect them as they had already entered into

service prior to respondents 4 to 16.  

6. The  High  Court  rejected  the  writ  petition  by  the  impugned  order

dated 5.10.2004. It held that appointments of respondents 4 to 16 were in

regard to an advertisement issued prior to the advertisement, in response to

which  the  appellants  were  selected;  that  the  actual  appointment  of

respondents  4  to  16  was  delayed  not  for  want  of  any  vacancies  but  on

account  of  litigation  which  were  beyond  their  control;  that  but  for  the

decision  rendered  by  the  learned  Single  Judge  on  4.4.1994  declaring

selections  beyond  18  to  be  illegal,  they  would  have  been  appointed  on

2.6.1994 when the other candidates from the said merit list were appointed;

and that therefore, the State Government was justified in giving respondents

4 to 16 benefit of notional seniority with effect from 2.6.1994 and placing

them  above  the  appellants  who  were  appointed  against  subsequent

vacancies/advertisements.  

7. The  said  decision  is  challenged  by  the  appellants  reiterating  the

contentions urged before the High Court. Reliance was also placed on the

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decisions of this Court in the State of Madhya Pradesh vs. Prem Prakash –

1994 (1) SCC 432; Dr. Chander Prakash vs. State of UP – 2002 (10) SCC

710 and  State of Uttaranchal vs. Dinesh Kumar Sharma – 2007 (1) SCC

687, and other cases which lay down the general proposition that selection

by Public  Service  Commission  is  merely  recommendatory  and  does  not

imply automatic appointment and that the appointing authorities should not

give  notional  seniority  without  valid  reason,  from  a  retrospective  date,

which would affect the seniority of those who have already entered service.  

8. There is no dispute about these general principles. But the question

here  is  in  regard  to  seniority  of  the  respondents  4  to  16  selected  on

1.10.1993 against certain vacancies of 1992-93 who were not appointed due

to litigation, and those who were selected against subsequent vacancies. All

others from the same merit list  declared on 1.10.1993 were appointed on

2.6.1994. Considering a similar situation, this Court, in  Surender Narayan

vs.  State  of  Bihar –  1998  (5)  SCC 246,  held  that  candidates  who  were

selected  against  earlier  vacancies  but  who  could  not  be  appointed  along

with  others  of  the  same batch  due  to  certain  technical  difficulties,  when

appointed  subsequently,  will  have  to  be  placed  above  those  who  were

appointed against subsequent vacancies.  

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9. This  Court  while  allowing  the  appeals  by respondents  4  to  16  by

order dated 6.12.1999 made it clear that all the 30 persons recommended by

the Commission as per merit list dated 1.10.1993, including respondents 4

to 16 are entitled to be appointed. The State Government submitted that but

for the order dated 4.4.1994 of the High Court, Respondents 4 to 6 would

have  been  appointed  on  2.6.1994  itself.  The  order  dated  4.4.1994  was

ultimately  set  aside  by  this  Court  and  respondents  4  to  16  who  were

consequently  appointed  should  not  be  denied  the  benefit  of  seniority.

Therefore the State Government was justified in giving them only notional

seniority  and  placing  them  immediately  below  the  other  16  candidates

selected in the common merit list (published on 1.10.1993) and appointed

on 2.6.1994. Respondents 4 to 16 have been given retrospective seniority

not from the date of their selection as wrongly assumed by appellants, but

from  2.6.1994  when  other  selected  candidates  in  their  merit  list  were

appointed.  

10. In view of the above, we find no reason to interfere with the order of

the High Court and these appeals are accordingly dismissed.  

……………………….J [R. V. Raveendran]

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………………………..J [P. Sathasivam]

New Delhi;  July 8, 2008.

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