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PETITIONER: VIRENDER S.  HOODA & ORS.

       Vs.

RESPONDENT: STATE OF HARYANA & ANR.

DATE OF JUDGMENT:       13/03/1999

BENCH: G.T. NANAVATI, S.RAJENDRA BABU.

JUDGMENT:

RAJENDRA BABU, J :

       Haryana Public Service Commission, respondent No.  2 herein   [hereinafter   referred  to  as  ’the  Commission’] advertised for recruitment  to  the  Haryana  Civil  Service (Executive  Branch) and other allied services which included 12 posts of Haryana Civil Service (Executive Branch),  7  in general category and 5 in reserved category.  The appellants submitted their applications.    Appellant  No.    I was, in fact, holding the post of Excise and Taxation Officer.   All the  appellants  gave  their preference to the Haryana Civil Service (Executive Branch), while  appellant  No.    I  gave preference only  for  such service.  The Commission held the written  examination  for  the  1991  and  interviewed   the candidates  who  had  passed the written examination in May, 1992 and a final result was published on June 19, 1992.  The appellants did not rank sufficiently  high,  but  appellants Nos.   2  and  3  were  offered  appointments  as Excise and Taxation Officer and Tehildar  respectively.    They  joined duty also.    Thereafter,  the  first appellant filed a writ petition being Civil Writ Petition No.  6057 of  1994  which was  summarily  dismissed  by  a  Division Bench of the High Court on May 12, 1994.  The matter was carried to this Court when appellants Nos.  2 and 3 got themselves impleaded.   By an  order  made  on October 30, 1995, this Court disposed of the matter but gave liberty to  the  appellants  to  file  a proper  writ  petition  before  the  High  Court for getting appointments on the basis of earlier  selection  bearing  in mind  the  circulars  issued on March 22, 1957 and March 26, 1972.  Subsequently, the three appellants presented  a  writ petition.   The  contention  put forth before the High Court and reiterated before us is that the Government of composite Punjab had issued instructions prescribing the procedure  to be  adopted by the Commission that apart from those selected against the  vacancies  all  notified  additional  vacancies which arise within six months from the recommendation of the names  could be filled up from amongst the names recommended by the Commission.  Similar instructions were also issued by the Government of Haryana on May 26, 1972.   Respondent  No. I  requested  the  Commission  for concurrence to fill up 30 vacancies of Haryana Civil Service  (Executive  Branch)  for the  year  1992  under proviso to Rule 5 of the Punjab Civil Services (Executive Branch) Rules.  The  cadre  strength  of the  Haryana  Civil Service (Executive Branch) was stated to be 240 and at present its total strength was  only  129  and there was a shortfall of 111.  There were 23 vacant posts to

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be  filled  up by direct recruitment and it was dear that 12 posts  for  direct  recruitment   were   vacant   when   the advertisement  was  made  for  examination which was held in 1991.  Appellant  No.    I  received  a  letter   from   the Commission  that  he  was not selected as he had not come in the merit and he came to know that he had  secured  rank  at serial No.   8 in the general category and that ne could not be selected for the  post  because  there  were  only  seven vacancies.   The case put forward by the appellants is that, as per Annexure P-8, the Public Service Commission issued in 1992 an advertisement No.  7 for recruitment to 9  posts  of Haryana   Civil   Service   (Executive  Branch)  in  general category.   The  result  of  the  selection  of   candidates pursuant  to  advertisement  issued  in 1989 was declared on June 19, 1992 and advertisement No.  7 was  issued  in  1992 within  a period of six months and so there was necessity of further selection  and  the  said  9  vacancies  in  general category in  advertisement  No.  7 has to be accommodated by candidates who are already in the waiting list/panel of 1989 recruitment.

       The High Court dismissed the writ  petition  on  the basis that (i) the appellants have not given any explanation for  the  time  gap  of  almost  four  years  between  their appointment to the service and the date on  which  the  writ petition  was  filed and the unexplained delay of over three years and eight months disentitled them from seeking relief; (ii) the  administrative  instructions  cannot  be  read  as making it obligatory for the appointing authority to appoint candidates  in excess of the advertised posts; and (iii) the claim for  directing  the  respondent  to  make  appointment against posts which became available after the initiation of the process  of  recruitment is not justified.  On behalf of the appellants all these three conclusions  reached  by  the High  Court  are assailed, while the learned counsel for the respondents supported the view taken by the High Court.

       So far as the first conclusion recorded by the  High Court  is  concerned,  it  is  dear  that  this Court, while disposing of the appeal filed by appellants, made clear that it would be open to the appellants to  file  a  proper  writ petition before the High Court for putting forth appropriate contentions on the basis of earlier selection in the context of  circular  dated  March 22, 1957 read with circular dated May 26, 1972.  This  order  was  passed  by  this  Court  on October 13, 1995 and the appellants filed a writ petition on January 29, 1996.   Particularly when appellants Nos.  2 and 3 were  allowed  as  co-petitioners  in  the  special  leave petition  before  this  Court, we do not think that the High Court was justified in deciding against  the  appellants  on the ground  of  laches.    The  fact that there were further vacancies available and when 9 vacancies were advertised  to be   filled   up   within  a  period  of  six  months  after announcement of the previous selection cannot be disputed at all.  In terms of circulars  issued  by  the  Government  on March  22,  1957  and May 26, 1972 when such vacancies arise within six months from the receipt of the recommendation  of the  Public Service Commission they have to be filled up out of the waiting  list  maintained  by  the  Commission.    In respect of the vacancies which arise after the expiry of six months  it  is  necessary  to  send  the  requisition to the Commission.  It is also made clear that  if  the  Commission makes recommendations regarding a post to the department and additional vacancies occur in the department within a period of  six  months  on the receipt of the recommendations, then

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the vacancies which occur later on can  be  filled  in  from amongst   the   additional  candidates  recommended  by  the Commission.  It is urged on behalf of  the  appellants  that letter  dated  January  7,  1992  indicated  that  the cadre strength in the Haryana Civil Service (Executive Branch) was 440 and the officers filling these posts were around 129 and there was shortfall of III and 23 posts had to be filled  up by direct recruitment.  Thus 12 posts for direct recruitment were  vacant when the advertisement for recruitment was made which was held in 1991.    Therefore,  the  appellants  case ought  to  have  been  considered when some of the vacancies arose  by  reason  of  non-appointment  of   some   of   the candidates.    Therefore,   the  Government  ought  to  nave considered the case  of  the  appellants  as  per  the  rank obtained  by  them and the appellants had to be appointed if they came within the range of selection.   Thus  when  these vacancies  arise  within  the  period of six months from the date of previous selection the circulars are  attracted  and hence  the view of the High Court that vacancies arose after selection process commenced has no relevance and is contrary to the declared policy of the Government in  the  matter  to fill up such posts from the waiting list.

       The  view  taken  by  the  High   Court   that   the administrative   instructions  cannot  be  enforced  by  the appellant and that  vacancies  became  available  after  the initiation of the process of recruitment would be looking at the matter from a narrow and wrong angle.  When a policy has been  declared  by  the State as to the manner of filling up the post and that policy is declared in terms of  rules  and instructions  issued  to  the Public Service Commission from time to time and so  long  as  these  instructions  are  not contrary  to  the rules, the respondents ought to follow the same.

       Therefore,  we  have  no hesitation in directing the respondents to consider the  cases  of  the  appellants  for appointment  to  posts  of Haryana Public Service (Executive Brach).  However, it is made clear that the appellants shall be fitted to the post ranking below to those  who  had  been selected   along   with   the  appellants  at  the  time  of recruitment made pursuant to result  declared  on  June  19, 1992.   The  appellants  will be fitted in appropriate posts and they will accord appropriate scale of pay by giving them the benefit of increments, if any,  but  they  will  not  be entitled  to  any monetary benefits for the period for which they have been kept out of employment.  Let such  action  be taken  by  the Government expeditiously but not later than a period of three months.

       The appeal is accordingly allowed.  However, in  the circumstances  of  the  case,  there  will be no order as to costs.