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PETITIONER: ROSHNI DEVI, SHRAVAN KUMAR ETC., HARAYANA STATE SUBORDINATES

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.ETC., BRIJENDER SINGH & ORS.

DATE OF JUDGMENT:       18/09/1998

BENCH: SUJATA V.  MANOHAR & G.B.  PATTANAIK.,

ACT:

HEADNOTE:

JUDGMENT: JUDGMENT -------- G.B. PATTANAIK, J. -------------------         Application for permission  to  file  Special  Leave Petition is granted.          Delay  condoned in Special Leave Petition No. 14660 of 1995.        Leave granted in all the Special Leave  Petitions. In all these cases the legality of the Full  bench  judgment dated  13th  July,  1994,  passed  by  a bench of Punjab and Haryana High Court and the directions given  thereunder  are under challenge.    These  cases  depict  a  sordid state of affair in the State of Haryana in relation to recruitment to the post of clerks and the State all along has been  a  mute spectator.  As it appears from the records and the different documents  appended  thereto  in the year 1987 there existed some vacancies in the post of clerks in the State of Haryana and  the  impugned  judgment  indicates  that  the   service Selection  Board  had  received  requisitions from different departments of the Government for  a  total  number  of  662 posts.   The  advertisement  which  had been issued inviting applications from the candidates, however, did not  indicate the number  of  vacancies.    The  Service  Selection  Board conducted the written  test  and  thereafter  selected  5373 candidates  and  prepared  a  list  of  those  candidates on 15.10.1989.  In accordance  with  the  prescribed  procedure from  out  of  the said list the Selection Board recommended the names of 1692 candidates to different  departments;  but while  making  such  recommendation  the candidates were not sent in accordance with their merits but at random.    After appointment  of  these  1692  candidates  recommended by the Service  Selection  Board  when  persons  occupying   higher position  in  the  merit  list did not receive any letter of appointment  they  approached  the  High  Court  in  a  Writ Petition which was  registered  as C.W.P.  No.  8187 OF 1990 (SUDESH KUMARI VS.  STATE OF HARYANA).  The  aforesaid  Writ Petition  was  allowed by the High Court and it was directed that without disturbing the appointments already  made,  all future appointments shall be made from the same list and the

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selection  list  which was prepared by the Service Selection Board on 15th October, 1989 would not lapse.  This direction the High Court gave  irrespective  of  instructions  to  the contrary had been issued by the State of Haryana keeping the life of  a  Select  List alive for one year.  The High Court also came to the conclusion that all persons who are  higher in  merit as compared to the last person who might have been appointed as a clerk are  entitled  to  be  appointed.    In course  of hearing we had been informed that the last person who had been  appointed  from  the  list  prepared  on  15th October, 1989 was  serial  no.    4645.    The State did not challenge the aforesaid decision of the High Court in Sudesh Kumari’s case and, therefore, right accrued in favour of the remaining persons from the list prepared  on  15th  October, 1989  who  had  not been appointed and the list continued to remain valid.  This judgment of the  High  Court  in  Sudesh Kumari’s  case  was  later on followed in few other cases of the said Punjab and Haryana High Court.   Some  unsuccessful candidates   approached   the  High  Court  challenging  the validity of the  list  itself  which  was  prepared  by  the Service  Selection  Board  on 15th October, 1989 on serveral grounds including the ground that as against the requisition of the different departments for  662  posts  of  clerk  the Selection  Board could not have selected and prepared a list of 5373 candidates as well as on the ground that the  Select List lapses  after  expiry  of  one  year.    When this Writ Petition was placed before a Division Bench  and  they  were confronted  with  the  earlier decision of the High Court in Sudesh Kumari’s case they thought it  appropriate  to  refer the  matter  to  a  Full  Bench  and  the  Full  Bench after considering all the points raised delivered the judgment  on July 13,  1994.    The conclusions of the Full Bench and the directions given are extracted hereunder:-         (i)    The Selection Board cannot make the selection         in excess  of  the  number  of  posts  for  which  a         requisition  has  been placed before it. The waiting         list prepared by the Board has to be confined to the         number prescribed by the Government.         (ii)   The  selected  candidates  do  not  have  any         indefeasible  right to be appointed to the posts for         which they have been selected.         (iii)   The directions given by the Bench in  Sudesh         Kumari’s  case  particularly  to the effect that the         selection list prepared on October  15,  1989  would         not lapse are not in conformity with law.         (iv)   The respondent-State of Haryana would examine         the cases of persons, who were appointed even though         they  had  not  attained the requisite percentage of         marks for inclusion in the merit list and  were  not         within  the  number of posts for which a requisition         had been sent to the Board. It would pass orders  in         accordance with law.         (v) The list prepared by the Board  on  October  15,         1989 was  valid  for  a  period  of  one year.  If a         candidate whose name appeared upto Sr..   no.    662         has  not  been  appointed  so  far  the  State shall         consider his claim and appoint him.   all  vacancies         arising  from  October  15,  1990  onwards  shall be         readvertised and recruitment against those vacancies         shall be made from amongst the selected candidates. The effect of  the  aforesaid  direction  is  not  only  the accured  rights  of  the parties pursuant to the judgment of the High Court in Sudesh Kumari’s case got wiped of but also even those who had been appointed and their appointment  had not  been annulled would also be liable to lose their job if

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they do not come  within  the  number  of  posts  for  which requisition has been placed before the Selection Board.      The  appellants  before  us  challenged  the  aforesaid judgment and direction of the Full Bench. Mr.  Mahavir  Singh,  the  learned  counsel  and  all  other learned  counsel  appearing for the appellants in respective appeals contended before us that the mandamus issued by  the High  Court  in Sudesh Kumari’s case cannot be annulled by a subsequent Full Bench judgment though the Full Bench may  be competent to decide the questions of law earlier and in this view  of  the  matter  the  directions given in the impugned judgment to  the  effect  that  the  list  prepared  by  the Selection Board in excess of the number of requisition which the  Board  has  received  cannot  be  held  to be valid and operative and persons already appointed  in  excess  of  the said  number  are  liable  to  evict their offices after the State Govt.  considers their cases are without jurisdiction. According to the learned counsel a writ  in  the  nature  of mandamus issued by the High Court in a case can be nullified only  by  preferring an appeal to a higher forum and get the judgment reversed, but that course not having  been  adopted the  impugned  judgment of the Full Bench must be held to be without jurisdiction and at any rate it cannot  nullify  the rights  accrued  to the appellants by virtue of the judgment in Sudesh Kumari’s case. Mr.  K.T.S.    Tulsi,  the  learned  senior  counsel appearing for the respondent_state and the Service Selection Board on the other hand contended, that though on  principle he  will  not  be  in  a  position  to refute the contention advanced but in the case in hand this  Court  must  consider the effect of judgment in Sudesh Kumari’s case and must bear in  mind the fact that an implementation of the direction of the High Court in Sudesh Kumari’s case would make the future generations for years not to aspire for a job in the post of clerk and such direction is  against  the  interest  of  the society.  Mr.   K.T.S.    Tulsi, learned senior counsel also brought to our notice the different administrative circulars issued by the Government requesting  the  Service  Selection Board  only  to  prepare a list in excess of the requisition made by 25 person as well as the circular indicating that  a list remains  valid for a period of one year.  We would have ordinarily persuaded to accept the contention raised by  the learned  counsel  for the appellants in view of the finality that has been attached to the judgment of Punjab and Haryana High Court in Sudesh Kumari’s case, no  appeal  having  been preferred  by  the State against the said judgment and would have permitted the directions given  therein  to  be  worked out,  but  in  view  of  the  illegality  and irregularities perpetrated by the said judgment and in view of the enormity of the impact which the judgment would have  on  the  future generation  of  candidates aspiring for a job in the post of clerk we would modify the directions given by the Full Bench and while modifying the said directions and  replacing  them with  our  directions  we bear in mind the fact that persons who have been appointed from out of  the  list  prepared  on 15.10.1989 have  already served for more than 9 years.  From the  relevant  circulars  in  the  form  of   Administrative directions  issued  by  the Government it can be safely said that life  of  a  list  remains  valid  for  one  year  and, therefore,  after  expiry of the list normally a Court would not be justified in issuing direction to  give  appointments [[from  the list whose life has already expired unless it is established that notwithstanding existence of vacancies  the appointing  authority  malafidely  did  not make appointment from the list.  We have also no hesitation to  come  to  the

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conclusion  that as against the requisition for 662 posts of clerk received by the  Service  Selection  Board  the  Board committed gross illegality in selecting and preparing a list of 5373  candidates.  Further mistake committed by the Board was in sending the names of persons from  the  list  not  in order  of  their  merit  but  at random as a result of which persons with higher merit securing higher  position  in  the list  stood  excluded  where as persons securing lower merit got appointed.  Having given our  anxious  consideration  to all  the  facts  and circumstances narrated above and having considered the fact that  persons  who  may  not  have  been appointed   strictly   in  accordance  with  law  have  been appointed and continued in service for more than 9 years and further the fact that the direction in Sudesh Kumari’s  case not to get the list lapsed unless and until all persons from the  list  who  are  above the last man who has already been appointed are appointed which really seriously prejudice the interest of the further candidates and also jeoperdises  the administration to a great extent, we think it appropriate to issue   the  following  directions  in  disposing  of  these appeals.  We may at this stage notice  the  fact  which  was brought  before  us a the fag end of the hearing that in the year 1995 there has been a fresh test by  the  same  Service Selection  Board  and again a large number persons have been included in the list and the High Court has given  almost  a similar  direction as was one given in Sudesh Kumari’s case. We, however, express no opinion on the legality of the  said judgment particularly when we have not examined the same and the State  also  intends  to  challenge  the same.  The only purpose for noticing the aforesaid fact was  to  high  light that  notwithstanding  the  judgment in Sudesh Kumari’s case there had been a fresh advertisement and a  fresh  list  has been  prepared  by  the  Service Selection Board and parties have claimed their rights on the basis of the  inclusion  of the their  names  in  the  said  lists.   However, as stated earlier,  bearing  in  mind  all  the  relevant  facts   and circumstances and bearing in mind all the relevant facts and circumstances  and  bearing  in mind the equity in favour of those who have already been appointed from out of  the  list prepared on 15.10.1989 and have served for more than 9 years we  issue  the  following  directions in substitution of the directions made by the High Court in the impugned judgment:- (1)     The appointments already made from out of  the  list prepared on 15-10-1989 will not be annulled. (2)     The last person who is stated to have been appointed being  at serial no. 4645, persons occupying higher position than him could be considered for appointment to the post  of clerk if there exists any vacancy for them. (3)  The  vacancy  in  this context would mean the vacancies which were available in the State of Haryana  prior  to  the advertisement issued for selecting persons for the said post for the  year  1995.    It  is  to  be made clear that if no vacancies exist  on  the  aforesaid  date  then  no  further appointment  would  be made from out of the list prepared on 15.10.1989 notwithstanding the directions of the Punjab  and Haryana High Court in Sudesh Kumari’s case. (4)     If vacancies did exist on the date as aforementioned then the appointments from  out  of  the  list  prepared  on 15.10.1989  could  be  made  strictly  on the basis of their merit position in the list. (5) We strongly deprecate  the  practice  of  selecting  and preparing  an  unusual  large  list  compared to the vacancy position and the State Government should  either  amend  the Recruitment Rules in that respect and till then should issue positive administrative instructions giving the right to the

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Selection  Board  to  select onlysome persons in excess than the requisition for which  the  Board  is  going  to  select people. (6)  We  also  do not approve of the inaction on the part of the State Govt.  in not assailing the judgment of the Punjab and Haryana High Court  in  Sudesh  Kumari’s  case  and  now coming  up before us making submissions that the judgment is practically incapable of being implemented.      These appeals are disposed of accordingly. But  in  the circumstances there will be no order as to costs.