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CASE NO.: Appeal (civil)  5803 of 2007

PETITIONER: Jitendra Kumar & Ors

RESPONDENT: State of Haryana & Anr

DATE OF JUDGMENT: 11/12/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.    5803              OF 2007 [Arising out of  SLP (Civil) No. 21418 of 2006] WITH CIVIL APPEAL NOs. 5810,5801,5802,5800,5804,5805,5807,5806 and 5808 OF 2007 [Arising out of  SLP (Civil) Nos. 4, 25, 40, 114, 1391, 359,  2621, 3662 and 1910 of 2007]

S.B. SINHA, J :          

       Leave granted in all the SLPs.

1.      These appeals arise out of a common judgment and order dated  12.10.2006 passed by a Division Bench of the Punjab and Haryana High  Court whereby and whereunder the writ petitions filed by the appellants  praying inter alia for issuance of a writ of or in the nature of mandamus  directing the respondents to issue letters of appointments to them on the  premise that they had duly been selected in Harayana Civil Service (HCS)  (Executive Branch) and/ or Allied Service pursuant to or in furtherance of  the result declared by the Haryana Public Service Commission (for short  "the Commission") as also for quashing of notification dated 13.05.2005  whereby and whereunder the cadre strength of HCS (Executive Branch) has  been reduced from 300 to 230, were dismissed. 2       State of Haryana sent a requisition to the Commission in or about  December, 2003 for filling up 58 posts in HCS (Executive Branch) and 44  posts in Allied Services.  Pursuant to or in furtherance of the said requisition  received by the Commission, an advertisement was issued on or about  24.01.2004 notifying that: (i)     the preliminary examination for the HCS Ex. Br. and the other  Allied Services Examination, 2004 would be held in May/ June,  2004 at Chandigarh for 58 posts in the "HCS (Ex. Br.)" and 44  posts in the Allied Services; The number of posts given against  each category is however liable to variation to any extent either  way. (ii)    The recruitment would be in accordance with the said ’1930 Rules’  and the Haryana Civil Services (Executive Branch) and Allied  Services and other Services common/ combined Examination Act,  2002 hereinafter refer as the ’2002 Act’ for the sake of brevity; (iii)   The examination will be conducted in accordance with the plan  and syllabus given in the Brochure for ’H.C.S. (Ex. Br.)’ and  Allied Services examination. (iv)    The combined competitive examination will comprise of two  successive stages (a) preliminary examination and (b) main written  examination and viva-voce/ personality test for selection to various  services and posts.

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       Pursuant to or in furtherance of the advertisement inviting  applications, 14,237 candidates responded.   3.      It is not in dispute that the matter relating to recruitment in the said  posts is government by the Haryana Civil Services (Executive Branch) and  Allied Services and Other Services Common/ Combined Examination Act,  2002 (Act No. 4 of 2002) (for short "the 2002 Act") and Punjab Civil  Service (Executive Branch) Rules, 1930 (for short "the 1930 Rules") as  amended in the year 2002.   The selection process was to take place in several stages, viz., holding  of preliminary examination so as to prepare a short list of those who may be  permitted to appear in the main examination followed by interview.  14,050  candidates including the appellants appeared in the preliminary examination,  on 23.05.2004.  1541 candidates including the appellants were selected in  the main examination.  The written examination was conducted by the  Commission in terms of Rule 9(1) of the 1930 Rules wherein 1,394  candidates appeared.   

4.      On or about 27.09.2004, the respondent \026 State of Haryana sent  requisition to the Commission for filling up of 19 vacancies in HCS  (Executive Branch) by promotion of the in-service candidates in accordance  with the 1930 Rules.  Out of the said vacancies, 8 were to be filled up from  amongst the category of the District Revenue Officer/ Tehsildars/ Naib  Tehsildar (Register A-I), 6 vacancies from members of Class III Services  (Register A-II) and 5 vacancies from the category of Block Development  and Panchayat Officer (Register C). 5.      It is not in dispute that under Rule 17 of the 1930 Rules, 2/3rd of the  total available vacancies were to be filled up by the direct recruitment and  1/3rd of the total available vacancies were to be filled up by promotion.  It is  also not in dispute that on or about 4.10.2004, pursuant to the  recommendations made by the Commission, Respondent \026 State entered the  names of 8 officers in Register A-I, 6 officers in Register A-II and 5 officers  in Register C for promotion to the HCS (Executive Branch). 6.      Results of the main written open competitive examination were  announced on 7.12.2004 whereby 292 candidates were declared by the  Commission to have qualified themselves to appear in the viva-voce test.   Interviews of the successful candidates were held from 16.12.2004 to  18.12.2004. 7.      General Elections of the Haryana Legislature were announced in on  17.12.2004.  As the Model Code of Conduct became effective on and from  17.12.2004, the Election Commission in terms of a circular letter dated  27.12.2004 imposed a ban on issuance of  appointment letters to the  candidates selected by the Commission without its permission till the  completion of the election process.  However, on 30.12.2004, a select list of  102 candidates was published by the Commission recommending their  appointment to the HCS (Executive Branch) and the Allied Services on the  basis of the result of the examinations held by it.  Admittedly, in view of the  ban imposed by the Election Commission, no offer of appointment was  issued.  We may, however, notice that the Chief Secretary of the State of  Haryana by a letter addressed to the Election Commission asked for its  permission to issue the appointment letters.  There is nothing on record to  show that the Election Commission responded thereto one way or the other. 8.      Before proceeding further, we may notice that in terms of the 1930  Rules, Review Committee determined the cadre strength.  In the year 1990,  the cadre strength was revised from 200 to 240 posts.  No cadre review was  effected in the years 1993 and 1996.  On or about 20.10.1999, the cadre  strength was fixed at 240. However, in the year 2002, due to deletion of 26  posts from the cadre, the total cadre strength was determined at 223.   A representation thereafter was made by the Haryana Civil Service  (Executive Branch) Officer’s Association (Association) for increase in the  cadre strength by increasing 48 posts which found favour with the  Committee.  The Committee submitted its report opining that the total  strength of the cadre should be fixed at 271.  According to the State, the  cadre strength was inflated on the basis of the representation made by the  Association as there was no actual need therefor.    9.      In or about January, 2005, an advertisement was issued by the

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Commission intimating holding of combined/ common examination for  appointment to 15 more posts in HCS (Executive Branch) and 42 posts in  the Allied Services and inviting applications therefor from the eligible  candidates.   10.     Elections for the Haryana State Legislative Assembly were admittedly  held on 3.02.2005.         On or about 13.02.2005, the State Government requested the Election  Commission to reconsider its instructions in regard to the ban imposed on  making regular appointment as the selection process had commenced much  before the announcement of election schedule.   11.     Some writ petitions were filed before the Punjab and Haryana High  Court complaining undue delay on the part of the State in issuing the offers  of appointment.  The new Government took over on 5.03.2005. 12.     By a notification dated 13.05.2005, the cadre strength was reduced to  230.           After issuance of the aforementioned notification dated 13.05.2005,   writ petitions filed in the High Court were suitably amended.   The said writ petitions have been dismissed by reason of the  impugned judgment.  13.    Before we advert to the rival contentions raised by the parties, it may  be placed on record that during pendency of these Special Leave Petitions,  the State Government directed filling up of the 27 posts of Deputy  Superintendent of Police by promotion including 8 vacancies for which the  appellants were selected by an order dated 21.02.2007.  Similar orders of  promotion were passed to the post of Deputy Superintendent of Police on  12/13.03.2007 and 11 Excise and Taxation Officers on 3.04.2005. 14.     Mr. P.P. Rao, Mr. Rakesh Dwivedi, Mr. L. Nageshwara Rao and Dr.  Rajeev Dhavan, learned senior counsel appearing on behalf of the  appellants, submitted as under: (i)     The Review Committee for determining the cadre strength having  made recommendations, the impugned notification reducing the  same could not have been issued.   (ii)    The High Court failed to consider that even assuming that the State  Government had the requisite power to reduce the cadre strength of  HCS (Executive Branch) from 300 to 230, reliefs prayed for could  be granted as: (a)     the cadre strength of the Allied Service to which 44  candidates were selected was not disturbed; (b)     the impugned reduction of the cadre strength from 300 to  230 cannot affect in any manner the selections made to 34  (out of 58 posts) in the HCS (Executive Branch); (c)     in addition even after the reduction in the cadre strength, 10  vacancies were available in the HCS (Executive Branch); (iii)   The post haste reduction in the cadre strength without following  the due procedure was apparently colourable exercise of power by  the government as it was determined not to appoint under any  circumstance the candidates selected by the "Commission" as it  was constituted by the previous government.

(iv)    Even if the notification dated 13.05.2005 is valid as the selection  process has not been held to be a tainted one and 34 posts in HCS  (Executive Branch) and 44 posts in Allied Services being still  vacant, there is absolutely no reason as to why the admitted  vacancies should not be directed to be filled up.   (v)     Promotion to the post of HCS (Executive Branch) and Allied  Services having been given and as the Rules provided for quota  and rota, the appointments in the direct recruitment should be  made to fill the requirements of the Rules. (vi)    The findings of the High Court that a vigilance enquiry is pending,  by itself cannot take away the legal right of the appellants.   (vii)   Assuming that the appellants do not have any legal right to be  appointed, the power of the State being coupled with duty and as  the action of the respondents must be supported by reasons and/ or  bona fide on their part; in respect whereof there being no proof, the  impugned judgment cannot be sustained.

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(viii)  For the purpose of filling up of the vacancies, the State should  have proceeded to apply the doctrine of ’least invasion’ in the  instant case.   (ix)    The High Court committed a serious error insofar as it failed to  take into consideration that the doctrine of ’legitimate expectation’  of the selectees as also the doctrine of ’promissory estoppel’ confer  legal rights upon the appellants to be appointed.   (x)     The High Court committed a serious error insofar as it failed to  take into consideration that a successor government cannot take  recourse to regime revenge and undo all acts which are otherwise  valid inasmuch as the decision taken by one government cannot be  nullified only because there is a change in the government. 15.     Mr. Raju Ramachandran and Dr. Abhishek Manu Singhvi, learned  senior counsel appearing on behalf of the State of Haryana, on the other  hand, submitted as under:

(i)     Undue haste with which the cadre strength has been inflated by the  previous regime was sufficient for the State to issue the  notification dated 13.05.2005.  (ii)    The legal position being settled that the selected candidates does  not have any legal right subject, of course, to non-arbitrary action  on the part of the appointing authority the High Court cannot be  said to have committed any error in passing the impugned  judgment.. (iii)   The very fact that the entire selection process was under a cloud,  the State could not have made any appointment unless the cloud  itself was clear.  As an enquiry in regard to the selection process by  the State Vigilance Bureau at the behest of the High Court in a writ  petition filed by the unselected candidates is pending, the State  without obtaining any report in this behalf did not cancel the  selection process. (iv)    As the selectees have no legal right, the doctrine of legitimate  expectation or promissory estoppel cannot have any application as  their non-appointments are supported by valid reasons and in any  event the selectees did not alter their position pursuant to any  promise made by the State Government.   (v)     The question of taking recourse to regime revenge by the State  Government does not arise as any government is duty bound to  correct the illegalities committed by the previous regime and in  regard thereto it cannot turn blind.  It only suspended the  appointments pending enquiry. (vi)    The State has furnished enough materials to satisfy the tests of  judicial review.  As the Review Committee was required to  determine the cadre strength only upon taking into consideration  the need of the State, its recommendations pursuant to the  representation of the Association as also the decision of the Chief  Minister must be held to be wholly irrelevant.   (vii)   The matter relating to recruitment of the officers being governed  by Act No. 4 of 2002, as a combined examination was to be held,  no appointment could be made either in the post of HCS  (Executive Branch) or in the Allied Services.   (viii)  Upon consideration of the materials on record, the High Court has  arrived at a finding that efficacy of earlier selection is doubted  which should not be interfered with by this Court.   (ix)    Although promotion had been effected after delivery of the  judgment of the High Court, but they have been made only against  the vacancies which are within the promotion quota and any  promotion which had been made on the basis of earlier inflated  strength, notice to show cause had already been issued.  No  appointment has been made from the posts meant to be filled up by  the direct recruits. 16.     Mr. S.K. Dholakia, learned senior counsel appearing on behalf of the  Commission, submitted that it is incorrect to contend that irregularity has  been committed by the Chairman and Members of the Public Service  Commission in making the recommendations for recruitment.  According to

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the learned counsel, the Commission has complied with the requirements of  the Rules scrupulously and all steps have been taken within the time  schedule prescribed by the statute. 17.     The Legislature of the State of Haryana enacted the 2002 Act to  provide for holding of common/ combined examination of direct recruitment  to HCS (Executive Branch) and Allied Services and other services.         Section 2(i) of the 2002 Act defines "Allied Services" to mean the  services shown in Appendix A thereof.   "Other Services" has been defined in Section 2(v) to mean "the  service/ posts,  recruitment to which is made by holding common/ combined  examination, but does not include the service/ posts shown in Appendix A".   "Direct Recruitment" has been defined in Section 2(vii) to mean  recruitment by open competition but does not include (a) appointment by  promotion; or (b) appointment by transfer of an officer already in the service  of any State Government of the Government of India.         Section 4 of the 2002 Act provides that no appointment shall be made  to any posts or service to which the 2002 Act applies beyond the number of  post advertised.  Sub-section (4) of Section 4 reads thus: "(4) The State Government may offer appointment  to the candidates to Haryana Civil Service  (Executive Branch) and Allied Services or Other  Services, as the case may be, to the extent of  number of advertised posts only.  However, no  candidate shall be offered appointment even to the  extent of number of advertised posts, if his name is  not recommended by the Commission or if he does  not fulfill the eligibility condition laid down by the  State Government for appointment to that service/  post by way of service rules, regulation of  executive instruction, as the case may be."          18.     Appendix A appended to the 2002 Act provides for the following  categories in Allied Services: "1.     Excise and Taxation Officer 2.      District Food and Supplies Controller 3.      ’A’ Class Tehsildar 4.      Assistant Registrar, Co-operative Societies 5.      Assistant Excise and Taxation Officer 6.      Block Development and Panchayat Officer 7.      Traffic Manager 8.      District Food and Supplies Officer 9.      Assistant Employment Officer"         Pursuant to or in furtherance of the provisions of the 2002 Act, an  advertisement was issued on 24.01.2004 showing 58 vacancies in the post of  HCS (Executive Branch), 8 vacancies in the post of DSP, 21 vacancies in the  post of F.T.O., 1 vacancy in the post of A Class Tehsildar, 1 vacancy in the  post of Assistant Registrar Coop. Societies and 13 vacancies in the post of  B.D.P.O. 19.     In the brochure published for the said purpose, it was inter alia stated: "Those declared to have qualified the Preliminary  Examination shall submit in their own hand a fresh  application form for admission to the Main  Examination which will be obtained separately  after clearing/ passing the Preliminary  Examination.  While filling up the application  form for Main Examination, candidate may apply  for appointment to all or any of the service/  services/ posts as advertised by the Commission  and he will be considered for the service/ post he  applies for.  It is made clear that in case no order  of preference is given in the application meant for  Main Examination, the appointment shall be made  strictly in order of merit in the following warrant  of precedence to the various departments\005"

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20.     Indisputably, the matter relating to the recruitment is governed by the  1930 Rules.  Rule 3 of the 1930 Rules provides for the strength and  composition of the HCS (Executive Branch) cadre empowering the  Government to determine the same from time to time.  It enjoins a duty upon  the government to make alterations, if it so feels, at the interval of every  three years upon examining the strength and composition thereof.           Rule 5 of the 1930 Rules provides for appointment of the members of  the service from time to time as required from amongst the accepted  candidates whose names had been duly entered in accordance with the 1930  Rules in one or other of the registers of Accepted Candidates to be  maintained thereunder.           Rule 6 provides for the registers which are of the following  description: "(b) Register A-1 of "District Revenue Officer,  Tahsildars and Naib Tahsildars accepted as  candidates. (c)     Register A-II of members of Class III  Service accepted as candidates. (d)     Register B of person accepted as candidates  on the result of a competitive examination; and (e)     Register E of Block Development and  Panchayat Officers."

       Register B was to be maintained for the direct recruits.

       Rules 7 and 8 of the 1930 Rules provide for selection of candidates  for the purpose of entering their names in Register A-1 and Register A-II.   Rule 9 provides for holding of competitive examination for selection of  candidates for entering the names of successful candidates in Register B in  the following terms: "9. Competitive examination to be held yearly for  selection of candidates for Register B \026 (1) A  competitive examination hereinafter called "the  examination for the post of Haryana Civil Service  (Executive Branch) and other Allied Services" the  Scheme of which is given below, shall be held at  any place in Haryana each year as per Schedule  given in Annexure \026 III for the purpose of  selection by competition of as many candidates for  the Service as the Governor of Haryana may  determine\005"

       Rule 10 of the 1930 Rules provides for admission of candidates to the  examination.  Rule 11 provides for selection of candidates for Register B  whereas Rule 12 provides for selection of candidates for Register C.  Rule  17 provides for appointment of registered candidates to service in the  following terms: "From Register B                two candidates From Register A-I               one candidate From Register B         two candidates From Register A-II      one candidate From Register B         three candidates From Register A-I               one candidate From Register B         two candidates From Register A-II      one candidate From Register C         one candidate From Register B         three candidates From Register A-I               one candidate From Register B         two candidates From Register A-II      one candidate From Register B         two candidates From Register A-I               one candidate

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From Register B         three candidates From Register C         one candidate and thereafter in the same rotation beginning again  from Register B."

21.     The basic fact of the matter in regard to issuance of advertisement,  holding of examination and publication of results of the written examination  as also holding of interviews is not in dispute.  It has also not been disputed  that the names of appellants herein find place in the select list.   The power of the State to determine the cadre strength is also not in  dispute.  The State before issuance of the notification dated 13.05.2005 has  taken into consideration the relevant facts.  The history of determination of  the cadre strength from 1993 would clearly go to show that prior to issuance  of impugned notification, the State has taken into consideration all the  relevant facts.  Although there does not exist any statutory rule in regard to  the matter of determination of the cadre strength, there exists some  guidelines.  A formula has been laid down for determining the cadre strength  which read as under: "Permanent Cadre Strength: (a)     General Administration posts: (b)     Posts in other Departments: (c)     Subtract 10 posts of SDO (C) to be manned  by Junior Scale IAS: i.e. (d)     Permanent Cadre Strength: (e)     Deputation Reserve @ 25% (f)     Leave Reserve @ 10% (g)     Training Reserve @ 10% (h)     Addl. for unforeseen demands.

Total of d, e, f, g and h is the Cadre Strength."

22.     In the year 1990, the cadre strength was revised from 200 to 240 posts  having regard to the following position: "(a)    General Administration posts:                   91 (b)     Posts in other Departments:                     71 (c)     Subtract 10 posts of SDO (C)  to be manned by Junior Scale IAS: i.e.          (-)     10 (d)     Permanent Cadre Strength:                       158 (e)     Deputation Reserve @ 25%                (+)     40       (f)     Leave Reserve @ 10%                     (+)     16 (g)     Training Reserve @ 10%                  (+)     16 (h)     Addl. for unforeseen demands.           (+)     10

Total           240"

23.     Although a review was to be made after three years, as per Rule 3 of  the 1930 Rules, no cadre review was effected in the years 1993 and 1996.   On or about 20.10.1999, the cadre strength was fixed on the same line as  was done in 1990. 24.     Again the process began in 2002.  Upon taking into consideration the  suggestions given by various authorities, recommendation for deletion of 26  posts was made by the Committee from the cadre, as a result whereof  permanent strength came to be 140 posts and upon application of the  formula, as noticed hereinbefore, the total cadre strength came to 223.  A  representation thereafter was made by the Association for increase in the  cadre strength by 48 which allegedly found favour with the Committee.  The  Committee submitted its report opining that the total strength of the cadre  should be at 271.  According to the State, the cadre strength was inflated on  the basis of the representation made by the Association and there was no  actual need therefor.  Concededly, again the Chief Minister passed an order  on 20.10.2003 to add 20 more posts in the cadre strength note sheet the  relevant part whereof  is as under: "CM has seen and ordered that there is no need to  subtract the posts of SDOs.  Even if the posts are  in HCS cadre the officers from junior scale of IAS

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can be posted in higher scale.  He has further  ordered that the senior HCS posts should include: 1.      Executive Magistrate            -       3 2.      Joint Director Sports           -       1 3.      Joint Director Tech. Education  -       1 4.      Joint Controller Civil Defence  -       1 Ambala 5.      FSO FC’s Office                 -       1 6.      Ad. O. Irrigation                       -       1 7.      FSO Excise & Taxation           -       1 and further the LAOs posts may remain 11 as at  present and, therefore, the total senior duty posts  will be 200 on the basis of which total cadre  strength should be worked out as per the formula  keeping the additions for unforeseen demand at  10."

25.     However, upon change in the political set up and upon an objective  consideration of the entire matter vis-‘-vis the need and interest of the State,  the cadre strength was fixed at 230.  No serious challenge has been made to  this part of the judgment of the High Court.         We also do not see any reason to interfere with the impugned  notification dated 13.05.2005.  What would be the need of the State and how  an administration shall be run is within the exclusive domain of the State.   The power of judicial review in such matter is very limited.  The superior  judiciary ordinarily would not interfere in a matter involving policy decision.   We do not mean to say that the policy decision of the State is beyond the  realm of judicial review.  However, power of judicial review can be  exercised only on the basis of known legal principles. [See Cellular  Operators Assn. of India and Others v. Union of India and Others, (2003) 3  SCC 186, Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental  Action Group and Others (2006) 3 SCC 434 and Sarbananda Sonowal v.  Union of India (2007) 1 SCC 174]         We, however, in the fact situation obtaining herein cannot opine that  any case has been made out where the court shall delve deep into the  aforementioned question. 26.     It would be relevant to place on record that seven writ applications  were filed by the unsuccessful candidates.  Serious allegations had been  levelled therein against the then Chief Minister Shri Om Prakash Chautala  and the then Chairman of the Commission Shri K.C. Bangar.  Some selected  candidates have also been impleaded as party-respondents therein.           Purity of process of conducting of examination as an issue was raised  threin..  Even allegations of favouritism and use of political influence in  favour of nears and dears of the high-ups of the Government and the  politicians were made.  The matter indisputably is pending investigation by  the Vigilance Bureau.  The High Court, we are informed, has also directed to  carry out an investigation.  It may also be placed on record that the  Commission was asked by the Vigilance Bureau to handover the records.   Such an action on the part of the Vigilance Bureau was the subject matter of  a writ petition filed by the Commission.  The said writ petition has been  disposed of by a judgment dated 12.08.2005, in which one of us (Bedi, J.)  was a member.  The said decision was reported in 2005 (3) PLR 486;   Paragraphs 14 and 22  whereof read as under: "14\005It is not in dispute that the enquiries now  being conducted by the Vigilance Bureau pertain  to certain past selections. From the communication  received by the petitioner-Commission, it appears  that the action of the past Secretary, the past  Chairman and certain other Officers/Officials of  the Commission, are being probed with regard to  the serious charges. Under any circumstances, the  aforesaid enquiries cannot be taken to mean any  erosion of the authority of the Commission or its  independence. Even an expert and constitutional  body like the Commission is supposed to perform

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its duties, fearlessly and carry out selections on the  basis of the best merit available. However, if the  aforesaid selections are alleged to be tainted and  based upon consideration other than merit, the  Commission cannot, in such circumstances, claim  any immunity No body has a vested right to  perpetuate illegality or hide a scandal. All  selections made by public servants are supposed to  be based upon competence, merit and integrity.  The allegations to be contrary would not only  erode the public confidence in the Commission but  would also result in merit being a casualty\005.

22. It is, thus, apparent that an effort has been  made by the Commission to protect its Chairman  and the members, who for undisclosed reasons  have chosen not to directly approach this Court.  The commission which is a constitutional body has  unnecessarily filed the present petition to watch  the interest of the Chairman and member, who  have chosen to remain behind the curtain. The  Commission cannot equate itself, nor under the  Constitution of India can it be so equated, with its  Chairman and its members. The Commission has a  distinct and a constitutional identity, independent  of its Chairman and members. It is, thus apparent  that the present petition has been filed at the  instance of the Chairman and members, although  in the name of the Commission. We cannot put any  seal of approval to this act of the Commission."

27.     We may furthermore notice that after the increase of the cadre  strength from 240 to 300, 19 candidates from Registers A-1, A-II and C  were nominated.  Out of these 19 candidates, 3 are not in Haryana Civil  Service (Executive Branch) cadre.  Remaining 16 candidates have been  issued show cause notice as to why they should not be repatriated to their  parent departments, which is again the subject matter of some writ petitions. 28.     Although it is not necessary for us to go into the said question, we  may in passing also place on record that the present State Government had  withdrawn work of selection process from Haryana Public Service  Commission in view of its constitution and a reference under Article 317 of  the Constitution of India is pending decision. 29.     Appellants herein indisputably are the selected candidates.  The  principal question which, however, arises for our consideration is as to  whether they have, in the facts and circumstances of this case, have a legal  right to be appointed.   Submission of the learned senior counsel appearing on behalf of the  appellants is that the High Court did not consider the question as to whether  the posts being vacant, even if the reduced cadre strength is to be made  operative, whether appointments could have been made to the 34 posts  which are lying vacant in the share of direct recruits.  The fact that 34 posts  are lying vacant even if the cadre strength is taken to be 230 may not be in  dispute but the question of filling up of the vacancies would arise only if  there exists a select list from which such vacancies can be filled up.   30.     The legal principle obtaining herein is not in dispute that the selectees  do not have any legal right of appointment subject, inter alia, to bona fide  action on the part of the State.  We may notice some of the precedents  operating in the field.         In Shankarsan Dash v. Union of India [(1991) 3 SCC 47], this Court  held: "7 . It is not correct to say that if a number of  vacancies are notified for appointment and  adequate number of candidates are found fit, the  successful candidates acquire an indefeasible right  to be appointed which cannot be legitimately

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denied. Ordinarily the notification merely amounts  to an invitation to qualified candidates to apply for  recruitment and on their selection they do not  acquire any right to the post. Unless the relevant  recruitment rules so indicate, the State is under no  legal duty to fill up all or any of the vacancies.  However, it does not mean that the State has the  licence of acting in an arbitrary manner. The  decision not to fill up the vacancies has to be taken  bona fide for appropriate reasons. And if the  vacancies or any of them are filled up, the State is  bound to respect the comparative merit of the  candidates, as reflected at the recruitment test, and  no discrimination can be permitted. This correct  position has been consistently followed by this  Court, and we do not find any discordant note in  the decisions in State of Haryana v. Subhash  Chander Marwaha, Neelima Shangla v. State of  Haryana, or Jatendra Kumar v. State of Punjab."

       Yet again in R.S. Mittal v. Union of India [1995 Supp (2) SCC 230],  this Court held: "\005It is no doubt correct that a person on the select  panel has no vested right to be appointed to the  post for which he has been selected. He has a right  to be considered for appointment. But at the same  time, the appointing authority cannot ignore the  select panel or decline to make the appointment on  its whims. When a person has been selected by the  Selection Board and there is a vacancy which can  be offered to him, keeping in view his merit  position, then, ordinarily, there is no justification  to ignore him for appointment. There has to be a  justifiable reason to decline to appoint a person  who is on the select panel. In the present case,  there has been a mere inaction on the part of the  Government. No reason whatsoever, not to talk of  a justifiable reason, was given as to why the  appointments were not offered to the candidates  expeditiously and in accordance with law.  The  appointment should have been offered to Mr  Murgad within a reasonable time of availability of  the vacancy and thereafter to the next candidate.   The Central Government’s approach in this case  was wholly unjustified."  

(Emphasis supplied)

       In Asha Kaul (Mrs.) and Another v. State of Jammu and Kashmir  [(1993) 2 SCC 573], this Court held: "8. It is true that mere inclusion in the select list  does not confer upon the candidates included  therein an indefeasible right to appointment (State  of Haryana v. Subhash Chander Marwaha; Mani  Subrat Jain v. State of Haryana; State of Kerala v.  A. Lakshmikutty) but that is only one aspect of the  matter. The other aspect is the obligation of the  Government to act fairly. The whole exercise  cannot be reduced to a farce. Having sent a  requisition/request to the Commission to select a  particular number of candidates for a particular  category, \027 in pursuance of which the  Commission issues a notification, holds a written  test, conducts interviews, prepares a select list and

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then communicates to the Government \027 the  Government cannot quietly and without good and  valid reasons nullify the whole exercise and tell the  candidates when they complain that they have no  legal right to appointment. We do not think that  any Government can adopt such a stand with any  justification today\005"             [See also A.P. Aggarwal v. Govt. of NCT of Delhi and Another  (2000) 1 SCC 600]

       In Food Corpn. Of India and Others v. Bhanu Lodh and Others  [(2005) 3 SCC 618], this Court held:   "14 . Merely because vacancies are notified, the  State is not obliged to fill up all the vacancies  unless there is some provision to the contrary in  the applicable rules. However, there is no doubt  that the decision not to fill up the vacancies, has to  be taken bona fide and must pass the test of  reasonableness so as not to fail on the touchstone  of Article 14 of the Constitution. Again, if the  vacancies are proposed to be filled, then the State  is obliged to fill them in accordance with merit  from the list of the selected candidates. Whether to  fill up or not to fill up a post, is a policy decision,  and unless it is infected with the vice of  arbitrariness, there is no scope for interference in  judicial review."  

31.     It is, therefore, evident that whereas the selectee as such has no legal  right, the superior court in exercise of its judicial review would not  ordinarily direct issuance of any writ in absence of any pleading and proof of  malafide or arbitrariness on its part.  Each case, therefore, must be  considered on its own merit.

32.     Dr. Rajeev Dhawan would submit that the negative right contemplated  by reason of the aforementioned decisions should be held to have conferred  a positive right on the selectee so as to hold that if there was no bonafide on  the part of the State or if the State had not assigned any sufficient or cogent  reasons for not appointing the selected candidates, the same would give rise  to a legal right in the selectees which is although not an unqualified one.  It  was further submitted that the right become stronger when the selection  process is completed and the candidates are selected.         Whether we apply the negative test or the positive test, the decision  making process should veer round the question in regard to the lack of bona  fide or an act of arbitrariness on the part of the State.  If lack of bonafide or  arbitrariness on the part of the State is proved, whether the right is  considered to be a vested or accrued right, or otherwise a negative right, the  superior court may exercise its power of judicial review.  The judicial  intervention would, thus, be possible only when a finding of fact is arrived at  in regard to the aforementioned acts of omissions and commission on the  part of the State and not otherwise.   33.     The question which, therefore, is required to be posed is : can in the  exigencies of the situation obtaining herein the State be said to have acted  bonafide in not making any appointment?   34.     The State has serious reservations about the efficacy of the selection  process.  It has also reservation in regard to the mode and manner in which a  decision was taken to increase the cadre strength.  An inflated cadre strength  will have direct repercussions not only in the matter of good governance but  also the public exchequer.  The State while exercising its power to review  the cadre strength is entitled to take note of the entirety of the situation  including the question as to whether the quantum of work has gone up or the  activities of the State have increased warranting upward revision in the cadre  strength.  When a review committee is constituted under a statute, it has to

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act strictly in terms thereof.  It must act within its four-corners.   Determination of cadre strength on the basis of the representation made by  the Association or exercise of suo motu power by the Chief Minister without  any material having been brought before him for the purpose of increase in  the cadre strength must be deprecated in strongest terms.  35.     The High Court, for good and sufficient reasons, was of the opinion  that the State had acted bonafide in issuing the said notification dated  13.05.2005.  There cannot be any doubt whatsoever that the State in absence  of any other factor was obligated to make appointments keeping in view the  reduced cadre strength.  Selection process has several stages.  The  Commission holds a constitutional duty to see that the entire selection  process is carried out strictly in accordance with law fairly, impartially and  independently.  The selectors appointed by the Commission or its Chairman  and members are forbidden to take recourse to favouritism.  Showing of any  favour to any candidate on an irrelevant or extraneous consideration would  be contrary to the constitutional norms of equality envisaged under Articles  14 and 16 of the Constitution of India.  Fear or favour on the part of the  Commission cannot but be condoned.   36.     In this batch of appeals, we are not concerned with the questions  which have been raised by the State of Haryana in its counter-affidavit in  regard to the acts of omission and commission on the part of the  Commission but there cannot be any doubt whatsoever that there existed a  cloud which is required to be cleared.  Unsuccessful candidates have  levelled serious allegations against the members of the Commission.  They  may or may not be correct.  The Vigilance Bureau has initiated an enquiry  into the whole matter.  Such an enquiry should, in our considered opinion,  be allowed to be continued unless the State in terms of the report made by  the Vigilance Bureau and upon making an enquiry of its own satisfies itself  that the selection process was not tainted.  Its disinclination to make an  appointment till then cannot be found fault with.  It is not a case where in  view of the provisions of Act No. 4 of 2002 as also the 1930 Rules, any  piecemeal appointment can be made.  The examination is a combined  examination.  It is an integrated process.  Selection of candidates whether in  the civil service or allied service would depend upon the performance of the  candidates.  Preference in the posts is required to be adjusted on the basis of  such performance.  All appointments, therefore, are inter-linked.   Furthermore, no appointment can be made beyond the posts advertised for.  [See Ashok Kumar and Others v. Chairman, Banking Service Recruitment  Board and Others (1996) 1 SCC 283] 37.     It is, therefore, difficult for us to hold that the decision of the State  was either mala fide or unreasonable or  unfair or arbitrary.  It has not been  alleged that the State was acting for unauthorized purpose.   38.     We are not oblivious of the constitutional scheme that the decisions  taken by one government in public interest itself cannot be a ground for  review thereof at the hands of the successor government.  It is not the  government which is in the seat of the power, matters in this behalf, but  what matters is the public interest. 39.     Mr. Dwivedi has drawn our attention to a decision of this Court in  State of Karnataka and Another v. All India Manufacturers Organisation and  Others [(2006) 4 SCC 683] wherein it was held:   "66. Taking an overall view of the matter, it  appears that there could hardly be a dispute that  the Project is a mega project which is in the larger  public interest of the State of Karnataka and  merely because there was a change in the  Government, there was no necessity for reviewing  all decisions taken by the previous Government,  which is what appears to have happened. That such  an action cannot be taken every time there is a  change of Government has been clearly laid down  in State of U.P. v. Johri Mal and in State of  Haryana v. State of Punjab where this Court  observed thus:  "[I]n the matter of governance of a State or in the

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matter of execution of a decision taken by a  previous Government, on the basis of a consensus  arrived at, which does not involve any political  philosophy, the succeeding Government must be  held duty-bound to continue and carry on the  unfinished job rather than putting a stop to the  same."

       There cannot be any doubt in regard to the aforementioned  proposition of law but the question herein is whether public interest would  be subserved by asking the State to proceed to make appointments.   Whereas, on the one hand, an action on the part of the State to interfere with  the good work done by the previous government solely on the basis of  change in the regime must be deprecated, there cannot however be any doubt  whatsoever that the successor government cannot blink over the illegalities  committed by the previous government.  If illegalities have been committed,  the same should be rectified.  When there exists a reasonable apprehension  in the mind of the State, having regard to the overall situation including the  post haste manner in which actions had been taken, to cause an enquiry to be  made and suspend the process of making appointments till the result of such  enquiry is obtained, such a decision on its part per se cannot be said to be an  act of arbitrariness or unreasonableness.   40.     Application of doctrine of legitimate expectation or promissory  estoppel must also be considered from the aforementioned view-point.  A  legitimate expectation is not the same thing as an anticipation.  It is distinct  and different from a desire and hope.  It is based on a right.  [See Chanchal  Goyal (Dr.) v. State of Rajasthan (2003) 3 SCC 485 and Union of India v.  Hindustan Development Corpn. (1993) 3 SCC 499]  It is grounded in the  rule of law as requiring regularity, predictability and certainty with the  Government’s dealings with the public.  We have no doubt that the doctrine  of legitimate expectation operates both in procedural and substantive  matters.         In Kuldeep Singh v. Govt. of NCT of Delhi [(2006) 5 SCC 702], this  Court held:   "25. It is, however, difficult for us to accept the  contention of the learned Senior Counsel Mr Soli  J. Sorabjee that the doctrine of "legitimate  expectation" is attracted in the instant case.  Indisputably, the said doctrine is a source of  procedural or substantive right. (See R. v. North  and East Devon Health Authority, ex p Coughlan )  But, however, the relevance of application of the  said doctrine is as to whether the expectation was  legitimate. Such legitimate expectation was also  required to be determined keeping in view the  larger public interest. Claimants’ perceptions  would not be relevant therefor. The State actions  indisputably must be fair and reasonable. Non- arbitrariness on its part is a significant facet in the  field of good governance. The discretion conferred  upon the State yet again cannot be exercised  whimsically or capriciously. But where a change in  the policy decision is valid in law, any action taken  pursuant thereto or in furtherance thereof, cannot  be invalidated."

       We also fail to see any reason as to why the doctrine of promissory  estoppel will apply in the instant case. 41.     Dr. Dhawan has laid strong emphasis on the doctrine of  proportionality and reasonableness, drawing sustenance from the dicta of  this Court laid down in Teri Oat Estates (P) Ltd. v. U.T., Chandigarh and  Others [(2004) 2 SCC 130], State of U.P. v. Sheo Shanker Lal Srivastava  and Others [(2006) 3 SCC 276] and Bombay Dyeing & Mfg. Co. Ltd. (3)

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(supra)]         Our attention has also been drawn to the following passage of Sir  William Wade’s Administrative Law, Ninth Edition, pages 371-372: "Goodbye to Wednesbury? The Wednesbury doctrine is now in terminal  decline, but the coup de grace has not yet fallen,  despite calls for it from very high authorities.  Lord  Slynn said in the Alconbury case, with reference to  proportionality:

I consider that even without reference to the  Human Rights Act 1998 the time has come to  recognize that this principle is part of English  administrative law not only when judges are  dealing with Community acts but also when they  are dealing with acts subject to domestic law.   Trying to keep the Wednesbury principle and  proportionality in separate compartments seems to  me to be unnecessary and confusing. and in the Daly case Lord Cooke said: I think that the day will come when it will be more  widely recognized that Associated Provincial  Picture Houses Ltd v. Wednesbury Corpn was an  unfortunately retrogressive decision in English  administrative law, in so far as it suggested that  there are degrees of unreasonableness and that  only a very extreme degree can bring an  administrative decision within the legitimate scope  of judicial invalidation. Although quoting and sympathizing with these  weighty opinions, and acknowledging that ’the  Wednesbury test is moving closer to  proportionality’, the Court of Appeal has held that  ’it is not for this Court to perform the burial rites’.   That task must be left to the House of Lords, and  meanwhile the law as laid down by the House in  the Brind case, in which proportionality was  rejected as part of English law, must linger on. Lord Irvine LC has suggested, in a human rights  context, that ’there is a pro-found difference  between the Convention margin of appreciation  and the common law test of rationality’, and has  raised the question, ’how long the courts will  restrict their review to a narrow Wednesbury  approach in non-Convention cases, if used to  inquiring more deeply in Convention cases?’ The  difference that he observes is in substance the  same as that detected by the House of Lords, and  his question is whether it will be eliminated by  ’spill-over effect’ from human rights and EU law.   This is exactly the kind of convergence which  European influences are likely to bring about.  It is  evident already in the numerous references to  proportionality which judges are making freely,  and which are paving the way for its general  acceptance."

       We, with greatest respect, do not have any such problem.  This Court  not only has noticed the development of law in this field but applied the  same also. 42.     The fact that in some jurisdictions, doctrine of unreasonableness is  giving way to doctrine of proportionality is beyond any dispute.  [See Indian  Airlines Ltd. v. Prabha D. Kanan, (2006) 11 SCC 67 and State of U.P. v.  Sheo Shanker Lal Srivastava and Others (2006) 3 SCC 276]  But, the  development of law in this field could have been applied only if a case was

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made out.  If the State is right in its contention that the selection process  being in cloud, no appointment can be made, the court by invoking any  doctrine cannot ask the State to do so unless it arrives at a positive and  definite finding that the State’s stand is fraught with arbitrariness.  We do  not find any arbitrariness in its act. 43.     It may be true that before the High Court the contention raised by the  State was not in regard to the pendency of the Vigilance Enquiry but lack of  vacancy, but it must also be noticed that the High Court itself despite  perusing the records maintained by the State has clearly arrived at a finding  that the enquiry by the State Vigilance Bureau had already been ordered, it  cannot be ignored.  The High Court in fact proposed to adjourn the matter  sine die till the enquiry was completed, but the same was not acceptable to  the appellants. 44.     Moreover, while embarking on a question of this nature, this Court  must take an overview of the entire scenario.  It need not keep itself confined  to the stand of the State before the High Court alone.  Even in a case where  the process of selection gives rise to a doubt in regard to the fairness on the  part of the selecting authorities, there need not be any categorical finding  that the selection process is vitiated.  Such a question may have to be posed  and answered in an appropriate case. 45.     There is another compelling reason why we think not to issue any  direction upon the state to order appointment of the appellants in the vacant  posts.  Section 4 of the 2002 Act lays down that no appointment can be  made beyond the number of posts advertised or against the posts which were  not advertised.  In terms of the aforementioned provision, therefore, any  vacancy which had arisen after the advertisement made in January, 2004 or  after abolition of posts on 13.05.2005, which had not been advertised, cannot  be offered to the appellants herein.  The Government of Haryana also states  that 10 posts are kept vacant for unforeseen demands.  It was further stated  that on 13.05.2005, 290 officers were holding posts against 230 sanctioned  posts.  Thus, any vacancy which had arisen by reason of retirement or death  having regard to Section 4 of the 2002 Act is also not capable of being  offered to the appellants herein. 46.     We must before parting, notice a disturbing feature in this case.   Whereas according to the Commission, the State has for all intent and  purport made it a defunct body although no case therefor has been made out,  the contention of the State, on the other hand, is that although in all the  maters allegations made by the complainant have been found to be true but  the enquiry cannot proceed as the Commission is not cooperating with the  State Vigilance Bureau.  Indisputably and as has been indicated  hereinbefore, seven separate writ petitions were filed by unsuccessful  candidates.  Various complaints had also been received by the State.  Four  separate enquiries had been directed to be conducted by the State Vigilance  Bureau.  Allegations have also, rightly or wrongly, been made that the  Commission had acted in undue haste.  We although as at present advised do  not intend to make any observations in regard to the allegations and counter- allegations made by the Commission and State against each other, we only  hope and trust that a constitutional authority like the Commission should  neither withhold any document nor refuse to cooperate with the State  Vigilance Bureau in the matter of conduct of an enquiry.          If the statements made by the Commission are correct, they have  nothing to hide.  It would be in the interest of all concerned including the  appellants herein to see that the enquiry should be completed at an early  date.

       We direct the State Government to take all steps in this behalf.  We  would also request the Commission to render all cooperation to the  authorities of the State Vigilance Bureau.  

47.     For the reasons aforementioned, we are of the opinion that no case has  been made out for interference with the impugned judgment of the High  Court.  The appeals are dismissed accordingly.  However, in the facts and  circumstances of this case, there shall be no order as to costs.