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PETITIONER: PARVEEN JINDAL AND ORS.  ETC.  ETC.

       Vs.

RESPONDENT: STATE OF HARYANA AND ORS.

DATE OF JUDGMENT16/03/1993

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) VENKATACHALA N. (J)

CITATION:  1993 SCR  (2) 353        1993 SCC  Supl.  (4)  70  JT 1993 (2)   311        1993 SCALE  (2)20

ACT: Haryana  Service  of Engineers  Class-I  P.W.D.  (Irrigation Branch) Rules, 1964:  Rules 5(2), 7(2)--First proviso. Haryana  Service of Engineers Class--II  P.W.D.  (Irrigation Branch) Rules, 1970: Service    Law--Power    of    employer    to    fill     up posts--Cadre--Strength  of--Fired  by Rules--But  posts  not filled  for  a long time--Held where strength  of  cadre  is fixed  by Rules--Government is not justified in not  filling up the posts for a very long time except for very strong and good  reasons--Directions  to  State to fill  up  the  posts issued. State    Public   Service   Commission--Power   to    notify vacancies--Commission  has no authority to notify  vacancies wihout   requisition   from   Government--Only    appointing authority viz.  Government is competent to make  requisition to Commission. Service        Law--Selection--Written       test        and interview--Prescription    of    qualifying    marks     for interview--Obtaining  of prescribed minimum marks  does  not create  a right to be called for  interview--Commission  can limit number of candidates to be called for  interview--Also mere  appearance by candidate at selection does  not  clothe them with right to selection.

HEADNOTE: The  Public  Works  Department  of  Government  of   Haryana consists   of  three  wings  viz.,  Irrigation,  Roads   and Buildings  and  The Engineering Service  in  the  Irrigation Branch   comprises   both  Class-I   service-consisting   of Assistant  Executive  Engineers,  Executive  Engineers   and Superintending  Engineers   and Class-II  service  including Assistant   Engineers.    While  the   Assistant   Executive Engineers  are  recruited by direct  recruitment  only,  the Executive Engineers are recruited by (i) direct recruitment; (ii) by transfer; (iii) by promotion from Class-II service., The  cadre strength of Assistant Engineers, fixed under  tie Rules is very large 354 as  compared  to the cadre strength of  Assistant  Executive Engineers.   For  the  purposes of  promotion  to  Executive Engineers  both Assistant Executive Engineers and  Assistant

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Engineers  are  eligible for which inter-se quota  is  fixed under the Rules. The Haryana Public Service Commission issued a  notification in 1985 inviting applications for selection to the posts  of Assistant Executive Engineers for all the three wings of the P.W.D.  Although the requisition from the Government was  to select Assistant Executive Engineers only for two wings viz. Public  Health  and Buildings and Roads yet  the  Commission notified  the  vacancies with respect to  Irrigation  Branch also stating that posts in the said category are also likely to  be  filled from the suitable candidates from  this  very advertisement   after  the  receipt  of  demand   from   the Government.   On  the basis of written  test  and  interview selections  were  made for Public Health and  Buildings  and Roads  wings but no selections were made for the  Irrigation wing because even by the date of finalisation of selections, no requisition or demand had come from the Government. The appellants, who were not selected, filed writ  petitions in  the  Punjab and Haryana High Court for  a  direction  to respondents  to  fill up vacancies  of  Assistant  Executive Engineers and others falling to the quota of direct recruits from amongst the applicants who had applied in pursuance  to the  advertisement and for a further direction to the  State of Haryana to send requisition to the Commission to fill  up all vacancies which are meant for direct recruits.  The High Court dimissed all the petitions. In  appeals to this Court it was contended on behalf of  the appellants that (1) the Government acted arbitrarily in  not sending the requisition, inspite of the fact that  vacancies in Irrigation Branch existed for a number of years; (2) when the  rules  created  a particular  category  and  the  cadre strength was also fixed therefor and more particularly  when a quota was reserved for them in the channel of promotion to the category of Executive Engineers, it was not open to  the Government to nullify the spirit and object behind the Rules by  refusing to make appointment to the said category-,  (3) the  procedure  adopted by the Haryana Public  Service  Com- mission  was  contrary to Rules because under  the  Rules  a candidate obtaining 50 per cent marks in the written test is entitled  to  be called for  viva voce, but  the  Commission arbitrarily prescribed a threshold of 65 per 355 cent which resulted in denial of opportunity of selection to the appellants. The  stand taken by the Government of Haryana was  that  the decision  not to send requisition for filling up the  vacant posts of Assistant Executive Engineers in Irrigation  Branch was  bona  fide  and  actuated  by  relevant  considerations because  a large number of Assistant Engineers, who  can  be posted  only as Sub Divisional Officers/Sub  Divisional  En- gineers,  are in surplus over and above the  cadre  strength and if the Assistant Executive Engineers are also  appointed as  demanded  by  the appellants, they will  be  in  further surplus  inasmuch  as  they too can be posted  only  as  Sub Divisional Officers/Sub Divisional Engineers. Allowing the appeals in part, this Court, HELD:1.  The Public service commission had no  authority  to include  the  vacancies  in the  Irrigation  Branch  in  the notification issued by it when the Government had not  asked for it.  May be the Commission did so bona fide.  Even  so,, the  fact  remains  that  none  were  selected  against  the vacancies  in  the Irrigation Branch, evidently  because  no demand/requisition   ever  arrived  from   the   Government. Indeed, it is not as if the appellants appeared only for the vacancies   in  Irrigation  Branch.   It  was  a   composite

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notification for all the three wings.  The appellants do not say that they confined their applications to Irrigation wing alone. nose selected for the other two wings had  admittedly scored  more  marks at the selection.  Therefore,  the  mere appearance  at the selection does not clothe them  with  the right to selection or appointment. [366G-H, 367A-C] State of Haryana v. Subhash Chandra Marwaha, [1974] 3 S.C.C. 220 and LJ.  Divakar v. Government of Andhra Pradesh, A.I.R. 1982 S.C. 1555, relied on. 2. Where the Rules have created a particular category, fixed its cadre strength and have also prescribed a quota for such categroy in the matter of promotion to the higher  category, the  Government  would  not  be  justified  in  not   making appointments to such category for over a decade unless there are  very strong and good reasons therefor.  The  Government would  not be justified in nullifying  though not  in  word, but in spirit  the Rules in this manner. [367C-D] 2.1. There is no reason why the Government did not think  it fit to 356 make some ad hoc. appointments to the category of  Assistant Executive  Engineers  when it was recruiting  such  a  large number,  on  ad  hoc basis, to  the  category  of  Assistant Engineers.  At the same time, the Courts have to think twice before  adding  the  numbers  to  the  already   over-loaded service.   It is not so much a question of  ’punishing’  the errant but one of what to do with the surplus personnel  and the consequent unwarranted burden upon the public exchequer. On  balancing the contending rights and equities, the  Court is  of the opinion that at least part of the cadre  strength of  Assistant Executive Engineers in the  Irrigation  Branch should be riled up in the near future. [367E-G] 3. The selection held in which the appellants had  appeared, cannot be directed to be finalised.  The only direction that can  properly be made herein is to direct the Government  to take  steps  for filling up the vacancies  existing  in  the category of Assistant Executive Engineers in the  Irrigation Branch  as  early as possible.  Atleast half  the  vacancies therein  should  be filed within a period of one  year  from today. [367H, 368A-B] I.J.  Divakar v. Government of Andhra Pradesh,  A.I.R.  1982 S.C. 1555, distinguished. 4. A reading of the first proviso to Sub.Rule (2) of Rule  7 shows  that it prescribes a minimum percentage of  marks  in the  written test both for appointment as well as for  being called  for  interview (viva voce).  It does  not  create  a right  in  the candidate, who has  obtained  the  prescribed percentage of marks, to be called for interview. [363A] Ashok Kumar Yadav v. State of Haryana, A.I.R. 1987 S.C. 454, relied On. Umesh Chandra v. Union of India, [1985] 3 S.C.C. 721; Nilima Shangla  v.  State of Haryana, [1986] 4 S.C.C. 268  and  P.K Ramachandra Iyer & Ors. etc. etc. v. Union of India &  Ors., [1984] 2 S.C.C. 141, referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeal  Nos.3465-69  of 1988. From  the Judgment and Order dated 26.10.1987 of the  Punjab and Haryana High Court in C.W.P. Nos. 755, 5141 & 3659/87  & 3138/88. 357 Shanti Bhushan and Prem Malhotra for the Appellants.

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Ms.  Nisha Bagchi for Ms. Indu Malhotra, U.S. Chowdhary  and Ravindra Bana for the Respondents. Bhal Singh Malik and S.M. Hooda for the Intervenor. The Judgment of the Court was delivered by B.P.  JEEVAN  REDDY, J. This batch of appeals  is  preferred against  a common judgment of Punjab an Haryana  High  Court dismissing a batch of six writ petitions. There   are  three  wings/branches  in  the   Public   Works Department  of the Government of Haryana, viz.,  Irrigation, Roads  and  Buildings and Public Health.  We  are  concerned herein with the Irrigation branch.  The Engineering  service in the Irrigation branch comprises both class-I, and  class- II  services.  Recruitment to and conditions of  service  of class-I  are  governed by the Haryana Service  of  Engineers Class-I  P.W.D.,  Irrigation  Branch  Rules,  1964   whereas recruitment  to  and conditions of service  of  class-11  is governed  by  Haryana Service of Engineers  Class-11  P.W.D. (Irrigation  Branch)  Rules, 1970.  The lowest  category  in class-I is that of Assistant Executive Engineers.  Above  it is  the  category  of  Executive  Engineers  and  above   it Superintending  Engineers.  Recruitment to the  category  of Assistant Executive Engineers is only by direct recruitment. Recruitment to the category of Executive Engineers is (a) by direct recruitment, (b) by transfer of an officer already in class-I  service  of the Government of India or of  a  State Government and (c) by promotion from class-11 service.  Sub- rule  (2) of Rule 5 of the class-I Rules says,  "recruitment to  the  service shall be so regulated that  the  number  of posts  filled by promotion from class-11 service  shall  not exceed  75% of the number of posts in the service  excluding the posts of Assistant Executive Engineers for the first  10 years  from  the  date of commencement of  these  Rules  and thereafter  shall not exceed 50% of the number of  posts  in the  service  excluding  the  post  of  Assistant  Executive Engineers." The proviso to this sub-rule, however, says that "in case an adequate number of Assistant Executive Engineers who  are eligible and considered fit for promotion  are  not available  the actual percentage of officers  promoted  from class-11 service may be larger than 75% or 50%, as the  case may  be." In other words, after the year 1974, the share  of class-11 officers in the promotion quota to the category 358 of  Executive Engineers categroy, shall not exceed 50%,  the balance being allocated to the Assistant Executive Engineers who  are  also entitled to be promoted to  the  categroy  of Executive  Engineers.   But  in  case  adequate  number   of Executive Engineers are not available, the said ceiling  can be exceeded. Though the Assistant Executive Engineers are in class-I  and Assistant  Engineers are in Class-II, both these  categories discharge  similar functions, duties  and  responsibilities. Members  of  both  these  categories  are  posted  as   Sub- Divisional   Officers/Sub-Divisional  Engieers.   Both   are eligible   for  promotion  to  the  category  of   Executive Engineers  as stated above, but while the cadre strength  of Assistant  Engineers  is very large, the cadre  strength  of Assistant  Executive  Engineers  is quite  small,  with  the consequence that in the matter of promotion to the  category of  Executive Engineers, the Assistant  Executive  Engineers enjoy  a  marked  advantage in view of the  inter  se  quota prescribed  by  sub-rule  (2)  of  Rule  5.  The   Assistant Executive  Engineers  get  promoted  far  sooner  than   the Assistant  Engineers.   The  cadre  strength  of   Assistant Executive  Engineers  is stated to be 49.  While  the  cadre strength-of Assistant Engineers is not stated before us,  it

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is admittedly far larger. In  the  year 1985, the Haryana  Public  Service  Commission issued  a notification stating that "a combined  competitive examination  for  recruitment  to  the  post  of   Assistant Executive  Engineers (C) in the P.W.D. will be held  by  the Haryana Public Service Commission in August/September,  1985 in  accordance with the rules of Haryana P.W.D.  Irrigation, B&R  and  Public Health Branches, as amended  from  time  to time." Then followed the table of particulars, which must be noticed:                           Reserved   Reserved   Reserved Name Of Post      No. Of   For S.c.of For B.c.                   Post                            For Ex.                             Haryana    Haryana     Service ----------------------------------------------------------      1              2          3          4           5 ---------------------------------------------------------- (i) Haryana Service of Engineers        15       4        2          1 Class I (Junior Sca- les) in P.W.D. Public Health Branch. 359 (ii) Haryana Service of       8         2         1 enginners  Class I Enginee- rs Class I (Junior Scales) in P.W.D. B & R. Br. ----------------------------------------------------------- (iii)Haryana Service of Engineers Class I (Junior Scale) posts in the P.W.D. Irrigation Branch are also likely to be filled from the suitable candidates from this very advertisement after the receipt of demand from the Government. ---------------------------------------------------------- 2. The number of posts given against each category is liable to  variation. Three posts (two for S.C.of Haryana  and  One B.C. of Haryana) in P.W.D. B & R Branch are reserved failing with other shall be considered.  Seven posts (four for  S.C. of  Haryana,  two  for  B.C. of  Haryana  and  one  for  Ex- Servicemen)  in  P.W.D. Public Health  Branch  are  reserved failing whom others will be considered". It is significant to notice the wording of item (iii) in the table.   It  is  clear therefrom  that  the  Public  Service Commission  had  notified the vacancies in the  category  of Assistant Executive Engineers (referred in the Rules and  in the  notification as Engineers class-I (Junior Scale))  even without  a requisition from the Government.   The-Commission by stating that posts in the said category "are also  likely to  be  filled from the suitable candidates from  this  very advertisement  after the receipt of demand from the  Govern- ment", had made it known to the candidates-of the absence of authority.   Admittedly, no such demand or  requisition  was ever  received  by  the Government at  any  time  after  the issuance  of the said notification.  It is equally  relevant to  point out that under the notification, applications  for selection  to the category of Assistant Executive  Engineers in  all the three wings of the P.W.D. were called for.   The eligibility  criteria  and the qualifications  required  for appointment to the said category is stated to be  indentical in all the three wings though they are governed by different sets of rules.  It is also stated before us that no separate

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applications  were  necessary and that one could  apply  for appointment in all or any of the three wings indicating  his choice   and  subject  to  his  fulfilling  the   prescribed qualifications. In response to the notification aforesaid, several Engineers including 360 the   appellants  herein  applied.   A  written  test   was. conducted  followed by an oral interview.  On the  basis  of the  marks  obtained  in  the  written  test  and  the  oral interview,  certain persons were selected for Public  Health and  Buildings & Roads wings.  No selections were  made  for the  Irrigation wing evidently for the reason that  even  by the  date of finalisation of selections, no  requisition  or demand  had come from the Government.  It is only then  that the appellants approached the Punjab and Haryana High  Court with  a batch of writ petitions praying for the issuance  of an  appropriate writ, order or direction to the  respondents (Government  of Haryana and the Haryana Public Service  Com- mission)  "to  fill up 44 vacancies of  Assistant  Executive Engineers and others falling to the quota of direct recruits from amongst the applicants who had applied in pursuance  of the advertisement........ They asked for a further direction to  the  State  of  Haryana  "to  send  requisition  to  the Respondent-Commission  to fill up all the vacancies  in  the Class-I   service  which  are  meant  for  direct   recruits forthwith and to make appointment to the class-I service  by the method of direct recruits as required by the Rules." The appellants  challenged the method of selection  followed  by the Commission as also the refusal/failure of the Government to  fill  up  the vacancies in  the  category  of  Assistant Executive Engineers. The  writ  petitions  were opposed  by  the  Public  Service Commission as also by the State Government.  The High  Court dismissed   the   writ  petitions  rejecting   the   several contentions urged by the appellants. In this appeal, Sri Shanti Bhushan, the learned counsel  for the appellants urged the following contentions: (1)  The cadre strength of Assistant Executive Engineers  in the  Irrigation wing is 49.  As against the  said  strength, there were only 5 persons holding the posts, which means the vacancies  are 44 in number.  There has been no  recruitment to  this category since 1979.  In that year, the  Government had sent a requisition for 22 posts but only 8 were selected by the Commission.  From out of these eight, only five  were appointed to the category.  In the year 1983, the Government sent  a requisition to the Commission for 23 posts but  none were  selected or appointed.  It is in this  situation  that the  notification issued by the Commission in the year  1985 envisaged a selection to the category of Assistant Executive Engineers in the Irrigation Branch as well.  The  Commission expected that in view of the vacancies earlier notified, the Government would be sending a requisition and with 361 a view to save time and effort, it included the vacancies in Irrigation wing as well in the Notification, which pertained to the vacancies in the very same category in the other  two wings  of  the P.W.D., for which requisition  was  received. The  Government  acted arbitrarily and  unreasonably  in  no sending  the  requisition,  inspite  of  the  fact  that  44 vacancies have been existing in this category in  Irrigation Branch  since a long number of years.  This refusal to  fill up  the said vacancies is mala fide and is designed to  help and  promote  the interest of  class-II  officers.   Though, according to the Rules, the number of promotees from  class-

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11 in the category of Executive Engineers should not  exceed 50%, the fact is that practically all the promotion posts in the  category of Executive Engineers are held  by  erstwhile class-II  officers  for  the reason  that  the  category  of Assistant  Executive Engineers in this branch is being  kept practically empty.  When the statutory rules have created  a particular  category  and  a cadre strength  is  also  fixed therefor and more particularly when a quota is reserved  for them  in  the  channel  of  promotion  to  the  category  of Executivie  Engineers, it is not open to the  Government  to nullify  the spirit and object behind the Rules by  refusing to make appointment to the said category.  If these 44 posts are  filled  up,  many of the appellants, if  not  all,  are likely to be selected and appointed. (2)  The  procedure adopted by the  Haryana  Public  Service Commission  is  contrary to statutory  Rules.   Whereas  the Rules  say  that  a candidate obtaining  50%  marks  in  the written  test  is entitled to be called for  viva-voce,  the Commission  has  arbitrarily prescribed a threshold  of  65% which it had no jurisdiction to do.  As a result of the said arbitrary  stipultion  several of the appellants  have  been denied  the opportunity of selection.  The  Commission  must now  be directed to make selection afresh for all the  three wings/branches in the Public Works Department. With a view to clear the ground, it would be appropriate  to deal with the second contention first.  It is based upon the proviso to sub-rule (2) of Rule 7 of the 1964 Rules.  Rule 7 deals with direct appointment.  For the sake of convenience, we may set out sub-rules (1) and (2) of Rule 7:               "DIRECT  APPOINTMENT:-  (1)  A  Candidate  for               direct  appointment shall not be less than  20               years  and  more than 25 years on  age  of  or                             before  the first day of August next  precedin g               the last date of submission of applications to               the commission; 362               Provided that:-               (a)   in  the  case  of  candidates  who   are               displaced  persons and in whose case  the  age               limit for admission to Engineering College had               been  relaxed, and in the case  of  candidates               belonging  to the Scheduled Castes,  Scheduled               Tribes  and other backward classes  the  upper               age limit shall be such as may be fixed by the               Government from time to time.               (b)  in the case of candidates possessing  the               requisite  qualifications who are  already  in               the service of the State Government, the upper               age limit shall be 30 years;               (2)    The selection of candidates,  including               those belonging               to  Scheduled  Castes,  Scheduled  Tribes   or               Backward   Classes,  shall  be  made  by   the               Commission,   after  holding   a   competitive               examination,  the syllabus for which shall  be               such  as may be prescribed by  the  Government               from  time  to  time.   The  Commission  shall               recommend  the required number  of  candidates               after  arranging their names in the  order  of               merit and indicating which out of them  belong               to  Scheduled  Castes,  Scheduled  Tribes   or               Backward Classes:               Provided   that  a  candidate  shall  not   be               considered  qualified for appointment,  unless

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             he obtains not less than forty per cent  marks               in  each subject and also not less than  fifty               per  cent  marks  in  the  aggregate,  and  no               candidate  who does not obtain the  qualifying               marks  shall  be called for interview  by  the               commission.               Provided further that where a vacancy has been               reserved  for a person belonging to  Scheduled               Castes, Scheduled Tribes or Backward  Classes,               who secures the highest marks in the aggregate               and has qualified for an appointment shall  be               selected  irrespective  of his  position  with               respect to the other candidates." 363 A  reading  of the first proviso to Sub-Rule (2) of  Rule  7 shows  that it prescribes a minimum percentage of  marks  in the  written test hoth for appointment as well as for  being called  for  interview (viva voce).  It does  not  create  a right  in  the candidate, who has  obtained  the  prescribed percentage  of marks, to be called for interview.   This  is how  a  similar Rule has been understood by  a  Constitution Bench  of  this  Court  in Ashok Kumer  Yadav  v.  State  of Haryana, A.I.R. 1987 S.C. 454.  Regulation 3 in the Appendix to  the Haryana Civil Service (Executive) and  other  allied services read as follows:               "3.  No candidate shall be eligible to  appear               in the viva voce test unless he obtains 45 per               cent  marks. in the aggregate of all  subjects               including  at least 33 per cent marks in  each               of the language papers in Hindi (in  Devanagri               Script)  and Hindi Essay provided that  if  at               any   examination  a  sufficient   number   of               candidates  do no obtain 45 per cent marks  in               the  aggregate  the Commission  may  at  their               discretion lower this percentage to not  below               40 per cent for the language papers  remaining               unchanged."               Construing  the  said  Regulation,  the  Court               held:               "it  is clear on a plain natural  construction               of  Regulation  3 that what is  prescribes  is               merely a minimum qualification for eligibility               to  appear at the viva voce test.  Every  can-               didate  to  be eligible for appearing  at  the               viva  voce  test must obtain at least  45  per               cent  marks  in the aggregate in  the  written               examination.  But obtaining of minimum 45  per               cent  marks  does  not  by  itself  entitle  a               candidate  to insist that he should be  called               for  the  viva voce test  all  candidates  who               satisfy  the minimum eligibility  requirement.               It  is  open  to the  Harvana  Public  Service               Commission  to say that out of the  candidates               who  satisfy  the  eligibility  criterion   of               minimum  45  per  cent marks  in  the  written               examination,   only   a  limited   number   of               candidates  at  the top of the list  shall  be               called   for   interview.    And   this    has               necessarily  to be done because otherwise  the               viva  voce test would be reduced to  a  farce.               It is indeed difficult to- see how a viva voce               test for properly and satisfactorily measuring               the personality of a candidate can be  carried               out, if 364

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             over 1300 candidates are to be interviewed for               recruitment to a service.  If a viva voce test               is  to  be  carried  out  in  a  thorough  and               scientific  manner   as it must  be  in  order               arrive  at a fair and satisfactory  evaluation               of   the  personality  of  a  candidate,   the               interview must take anything between 10 to  30               minutes." In  view of this decision, we do not think it  necessary  to deal wit the decisions cited by Sri Shanti Bhushan,  namely, Umesh Chandra v. Union of India, [1985] 3 S.C.C. 721; Nilima Shangla  v.  State of Haryana, [1986] 4 S.C.C. 268  and  P.K Ramachandra Iyer & Ors. etc. etc. v.  Union of India & Ors., [1984] 2 S.C.C. 141.  Suffice it to say that neither of them lays  down  any principle contrary to the one  quoted  above from Ashok Kumar Yadav. Coming  to the first submission of Sri Shanti  Bhushan,  the defence of the Government is to the following effect:               "It  is also admitted. that cadre strength  of               Assistant  Executive  Engineer  was  fixed  on               22.1.82  and is 49 out of which 5 persons  are               in position.  However, at present, there is no               vacant post of Assistant Executive Engineer in               the  Department.   The  true  facts  are  that               during  the  year 197980 some  major  projects               viz.   Drainage  Projects, Jawahar  Lal  Nehru               Project and Linning etc. under the World  Bank               Schemes  were  taken into hand and  there  was               immediate  requirements  of  technical  staff.               For this purpose and to take up the time bound               works, 212 Assistant Engineers were  recruited               on adhoc basis and 178 Sub Divisional Officers               were promoted from Junior  Engineers/Draftsmen               etc.  on  adhoc basis to  meet  the  immediate               requirement  during the aforesaid period  till               their  replacement by the joining  of  regular               Assistant  Engineers  through  Haryana  Public               Service   Commission.   The   Haryana   Public               Service  Commission recommended 176 number  of               Assistant  Engineers  in  December,  1981  for               regular  appointment  against  the  posts   of               those,   who  were  appointed/   promoted   as               Assistant Engineer/Sub Divisional Officers  on               adhoc   basis.   They  were  given  offer   of               appointment on 29.1.1982.On joining of regular               Assistant Engineers, the 365               services   of   about   45   adhoc   Assistant               Engineers  were terminated by the  Government.               The  adhoc Assistant Engineers whose  services               were  terminated    by  the  Government  filed               Civil Writ Petition No. 1529/89 Amarjeet Singh               and  others  v. State of  Haryana  and  other,               writs  involving  the  same  cause  of  action               challenging  their termination  orders.   Upon               regular hearing the above Civil Writ Petition,               the  Punjab  and Haryana High  Court  (Hon’ble               Justice  Mr. I.S. Tiwana) in its orders  dated               3.9.84  decided  the matter in favour  of  the               adhoc Assistant Engineers recruited during the               year   1980.   Thus  the  services  of   adhoc               Assistant  Engineers could not  be  terminated               and  they  continued  to  hold  the  posts  of               Assistant  Engineers,  till  date.    However,               Government  have  filed Letter  Patent  Appeal

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             No.186-90 of 1985 and 374-381 of 1985.Amarjeet               Singh  etc. v. State and the same  is  pending               for decision in the Hon’ble Punjab and Haryana               High  Court.   Similarly, the  Sub  Divisional               Officers,  who are promoted on adhoc basis  in               the  year  1979-80 in excess  of  their  quota               could  not be reverted by the  Government  for               want  of finalisation of Ranking List for  the               purpose  of  promotion  to the  post  of  Sub-                             Divional Officers in pursuance of the directio n               given  by the Hon’ble Punjab and Haryana  High               Court in Civil Writ Petition No. 5630-5631  of               1981.   J.P. Gupta and Shri Krishan v.  State,               1524/76  M.L. Verma v. State and 4489/82  Shri               R.K Jain v. State." The learned counsel appearing for the Government of  Haryana explains  that  176  Assistant  Engineers  selected  by  the Commission in December, 1981 for regular appointment are ’in addition to 390 Officers (212 Assistant Engineers  recruited on adhoc basis and 178 Sub Divisional Officers promoted from the  category of Junior Engineers/Draftsment etc.  on  adhoc basis).   This  statement is, however, disputed  by  learned counsel  for  the  appellants.   Be  that  as  it  may,  the submission  of  the learned counsel for  the  Government  of Haryana is this: both the Assistant Engineers and  Assistant Executive    Engineers   are   posted   as    Sub-Divisional Officers/Sub-Divisional   Engineers.   There  is  no   other posting available for them.  In the circumstances  explained in  the  counter-affidavit,  a  large  number  of  Assistant Engineers are in surplus over and above the cadre  strength. They have to be posted some- 366 where  and  they  can  be  posted  only  as  Sub  Divisional Officers/ Sub.Divisional Engineers.  If Assistant  Executive Engineers are also appointed as demanded by the  appellants, they will be in further surplus inasmuch as they too can  be posted  only  as  Sub  Divisional  Officers/Sub   Divisional Engineers   and there are no posts available to  post  them. The  Government is finding it difficult to give postings  to the  already  existing Assistant Engineers,  who  have  been recruited/promoted  on adhoc basis as stated above  and  who could  not be ousted because of the orders from courts.   It is  for  this  reason  that  the  Government  did  not  send requisition  for  filling  up  the  44  posts  of  Assistant Executive   Engineers  in  Irrigation"  Branch.   The   said decision  is  a  bona fide  decision  actuated  by  relevant considerations.   There are absolutely no mala fides on  the part  of the Government in not filling up the said posts  of Assistant  Executive Engineers.  It is also brought  to  our notice that though a requisition was sent to the  Commission in  the  year  1983  for 23  posts  of  Assistant  Executive Engineers  in  the  Irrigation Branch,  the  Government  had withdrawn the said requisition on May 20, 1983 itself  i.e., even  before any selection could be made.  It was  for  this reason  that  no one was selected or appointed to  the  said category in that year.  Counsel submitted, supported by  the counsel for the Commission, that in these circumstances, the Commission was justified in not selecting anyone against the post  of  Assistant Executive Engineers  in  the  Irrigation wing,   more  particularly  when  the  expectation  of   the Commission  that  the  Government  may  send  a  requisition therefor   did   not  materialise  even  by  the   date   of finalisation of selections. The  question  that  arises in the  above  circumstances  is

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whether   the  Government  can  be  compelled  to   send   a requisition  to the Commission for the  selecting  Assistant Executive  Engineers in respect of 44 vacant posts?  and  if it,  can be so compelled, would it be appropriate to  direct that  those  posts  shall be filled by  the  candidates  who applied  for and appeared at the selection held in the  year 1985? The  first  thing  to  notice is  that  the  Public  Service Commission had no authority to include the vacancies in  the Irrigation branch in the notification issued by it when  the Government  had not asked for it.  The requisition from  the Government was to select Assistant Executive Engineers  only for the other two wings viz., Buildings and Roads and Public Health.   May be the Commission did so bona fide.  Even  so, the  fact  remains  that  none  were  selected  against  the vacancies  in  the Irrigation branch, evidently  because  no demand/requisition ever arrived from the Government.  Merely because the 367 appellants  appeared at such selection they did not get  any right  to compe either the commission or the  Government  to select  and  appoint  them.  In deed, it is not  as  if  the appellants  appeared  only for the vacancies  in  Irrigation Branch.   It was a composite notification for all the  three wings.   The appellant do not say that they  confined  their applications to Irrigation wing alone Those selected for the other  two  wings had admittedly scored more  marks  at  the selection.   Because, the appellants could not get  selected against  the vacancies in the other wings, they have  turned their attention to Irrigation wing.  The relevance of  their attack   upon  the  selection  procedure  adopted   by   the Commission  becomes clearer in this context.  Be that as  it may,  the mere appearance at the selection does  not  clothe them  with the right to selection and/or appointment.   This is the principle affirmed by this court in State of  Haryana v.  Subhash  Chandra  Marwaha, [1974] 3  SCC  220  and  I.J. Divakar  v.  Government of Andhra Pradesh A.I.R.  1982  S.C. 1555.  At the same time, we are constrained to observe  that where  the Rules have created a particular  category,  fixed its cadre strength and have also prescribed a quota for such category in the matter of promotion to the higher  category, the  Government  would  not  be  justified  in  not   making appointments to such category for over a decade unless there are  very strong and good reasons therefor.  The  Government would  not be justified in nullifying  though not  in  word, but  in spirit  the Rules in this manner.  We are  also  not persuaded that the defence put forward by the Government  in this  case  is  acceptable.   There is  no  reason  why  the Government  did  not  think  it  fit  to  make  some   adhoc appointments   to  the  category  of   Assistant   Executive Engineers  when  it was recruiting such a large  number,  on adhoc  basis, to the category of Assistant  Engineers.   The situation  in  which the Government finds  itself  today  is really  of  its own making.  The problem is no  doubt  real. The courts have to think twice before adding the numbers  to the  already  over-loaded  service.  It is  not  so  much  a question  of  ’punishing’ the errant but one of what  to  do with  the surplus personnel and the  consequent  unwarranted burden   upon  the  public  exchequer.   On  balancing   the contending  rights and equities, we are of the opinion  that at  least part of the cadre strength of Assistant  Executive Engineers  in the Irrigation branch should be filled  up  in the near future. The question then arises whether the selection held in 1985- 86  at which the appellants had appeard, should be  directed

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to be finalised.  We do not think so.  The situation is  not similar  to  the one considered by this  court  in  Divakar. That  was a case where the commission called  for.  applica- tions pursuant to the requisition from the Government,  held the interviews 368 and  was  about  to  finalise  the  select  list  that   the Government    withdrew    the   requisition.     In    those circumstances, this Court, while holding that the candidates who  appeared for the selection had no right to  compel  the commission or the Government to select and appoint them, yet gave  a direction, in the interest of justice,  to  finalise the  selection  process  and forward the select  Kg  to  the Government.The situation in this case, as already  explained hereinbefore is totally different.  The only direction  that can  properly be made herein is to direct the Government  to take  steps  for filling up the vacancies  existing  in  the category of Assistant Executive Engineers in the  Irrigation branch  as  early as possible, Atleast  half  the  vacancies therein  should be filled within a period of one  year  from today. Before  concluding, we must refer to certian letters  relied upon  by   Sri Shanti Bhushan to  justify  the  notification issued by the Commission.  He relied upon the letters of the Engineer-in-Chief dated 16.8.1985, 16/ 20.5.1986 and another letter  written in between (the date of this letter  is  not given)  addressed to the Government of Haryana  outing  that while  at  the  moment there was  no  vacancy  of  Assistant Executive   Engineer,  there  was  a  possibility  of   some vacancies  arising on amount of retirement etc.  He,  there- fore,  requested  the Government to take.  steps  to  select persons  therefor,  Firstly,  it may  be  noticed  that  the appointing authority for this category being the Government, only  the Government could send the  requirsition/demand  to the commission and not the Engineer-in-Chief.  The aforesaid letters  are merely in the nature of recommendation  to  the Government.  Secondly, all the three letters are  subsequent to  the  notification issued by the commission  calling  for applications.  These letters, therefore, do not justify  the commission calling for applications in respect of  vacancies in the Irrigation branch. For  the  above reasons the appeals are  allowed  partly,  A direction shall issue to the, Government of Haryana to  take steps  for  filling  up the vacancies, in  the  category  of Assistant Executive Engineers in Irrigation branch of P.W.D. as  early &A possible. in accordance with law, Atleast  half the vacancies shall be filled up within am year from  today. It is further directed that if any of the candidates who had applied  in pursuance of the 1985 Notification apply  again, and if they are found to have become age-barred,  relaxation in the matter of age shall be granted to them so as to  make them  eligible  for consideration.  No other  relief  co  be granted  In  these appeals.  There shall be no order  as  to costs. T.N.A.                               Appeals allowed. 369