Amit Sihag vs State of Haryana and Others

Hemant Gupta, J.—This order shall dispose of afore-mentioned three writ petiitons claiming identical relief i.e. appointment against the vacant posts of Haryana Civil Services (Judicial Branch), which were advertised vide Advertisement No. 14 by the Haryana Public Service Commission. All the petitioners are General category candidates. In the merit list, the name of petitioner in CWP No. 14362 of 2011 falls at Sr.No.77; the name of petitioner in CWP No. 20585 of 2011 falls at Sr.No.78 whereas the names of petitioners in CWP No. 15859 of 2011 fall at Sr.Nos.82 and 85 respectively.

The Haryana Public Service Commission published Advertisement No. 14 dated 09.03.2010 inviting applications for the posts of Civil Judge (Junior Division) in the Haryana Civil Service (Judicial Branch) with closing date as 09.04.2010. In the said advertisement, 43 posts were meant for General category whereas, 12 posts were advertised against Anticipated/Unforeseen posts meant for General Category candidates. The following note was published after the table giving details of the available vacancies:

NOTE: Two (2) posts (one from General Category and one from Backward Classes category) have been kept reserved in view of the orders dated 05.02.2009 passed by the Hon''ble Punjab & Haryana High Court in CWP No. /3584 of 2009 titled as Neha Yadav Vs. Punjab & Haryana High Court.

The said advertisement was for conducting the preliminary examination and a candidate, who qualifies the preliminary examination will have to apply again on separate application form for Main Examination. All the petitioners qualified the preliminary examination. Subsequently, another advertisement for the conduct of Main Examination was published, a copy of which has been appended as Annexure P-3 with closing date as 16.08.2010. In the said advertisement, there is variation in the number of vacancies available. In respect of General category, 39 posts were available vacancies and 12+2+4 = 18 vacancies were Anticipated/Unforeseen for the General category. The following note was published after the table giving details of the available vacancies::

NOTE: Six (6) vacancies (five from General Category and one from Backward Class category) have been kept reserved in view of the orders dated 05.02.2009 passed by the Hon''ble Punjab & Haryana High Court in CWP No. 3584 & 20315 of 2008.

The result of the Main Examination after the viva-voce was declared on 10.01.2011. The Selection Committee constituted to recruit Civil Judges in the State of Haryana prepared four lists such as Annexure-A for General category; Annexure-B for Scheduled Castes category; Annexure-C for Backward Classes category and Annexure-D for Ex Service Man category. The names of the petitioners found mention at Serial Numbers mentioned above in the list Annexure A. The result declared has the following endorsement:

Note:-First 57 candidates from Annexure ''A'', first 27 candidates from Annexurre ''B'', first 7 candidates from Annexure ''C'' and all the three candidates detailed in Annexure ''D'' have been recommended by the Hon''ble Selection Committee for being appointed as Civil Judges (Junior Division)-cum-Judicial Magistrates in the State of Haryana. 19 candidates next in merit in Annexure ''A'' and 2 candidates next in merit in Annexure ''C'' shall remain in waiting list for one year from today i.e. 01.12.2010. In the eventuality of any vacancy accruing in the above-said 57+7 vacancies on account of non-joining of the candidates or the resignation of any candidates or on account of any other unforeseen eventuality, such vacancies shall be filled up from the above-said 19+2 candidates from their respective categories.

The writ petition(s) mentioned in ''Note'' in Annexures P-1 and P-3 was decided on 20.05.2011. Vide the said order, CWP No. 3584 of 2008 filed by only one petitioner was allowed, whereas all other writ petitions were dismissed. In pursuance of the result declared, 39 candidates against the available vacancies and 18 candidates against the Anticipated/Unforeseen vacancies have been appointed. But in such process, the last of the candidate appointed is at Sr.No.76 of the list.

The grievance of the petitioners is that the petitioners are next in the merit list and since the writ petition, wherein by virtue of an interim order, 05 vacancies of the General category were resumed has been declined, therefore, such vacancies are required to be filled up from amongst the petitioners, who are next in the merit list. Such vacancies continue to be available even before the next advertisement for filling up all the remaining vacancies was published on 21.06.2011.

The factual position is not in dispute. However, the stand of the respondents is crystalized in the following paragraph contained in the written statement filed in CWP 15859 of 2011:

5.That in reply to the contents of para No. 5 of the writ petition, it is submitted that only 57 posts were advertised and 5 posts of General category were reserved in the light of the orders passed by the Hon''ble High Court in CWP No. 3584 of 2008 and CWP No. 20315 of 2008. The selection process qua 57 posts of the General category was completed in the month of December, 2010, whereas the final judgment in the aforesaid petitions was delivered in the month of May i.e. On 20.05.2011. Therefore, these posts reserved under the orders of the Court could not be filled prior to 20th of May, 2011, when the final result was prepared.

From the respective contentions of the parties, we find that the posts advertised in the initial Advertisement (Annexure P-1) for the General Cateogory candidates were 55, whereas in the subsequent Advertisement (Annexure P-3), the posts were 57. It is not in dispute that in fact, 57 candidates have been appointed though 1 or 2 candidates have resigned after joining. It is categorical stand of the respondents that 5 General category vacancies were not advertised in view of the order passed by this Court in writ petitions filed by some of the candidates aggrieved against the previous selection. The said writ petition came to be decided on 20.05.2011 though the result of the petitioners and other similarly situated candidates was declared on 10.01.2011.

The mere fact that the vacancies were available before the second advertisement was published on 21.06.2011, will not confer any right in the petitioners i.e. the candidates, whose names were not even recommended for appointment as wait list candidates to seek appointment against the vacancies not advertised. It was a conscious decision of the respondents not to advertise the vacancies in respect of which there was an interim order. Though the interim order came to be vacated in May, 2011, but such order was after 4 months of the declaration of the result of the petitioners.

Since neither the vacancies were advertised nor the names of the petitioners were kept in the waiting list, the petitioners cannot claim any right of appointment. In view of clause 1 of Part D of the Rules relating to the appointment of Civil Judges (Junior Division) in Haryana, the names of the candidates selected by Government for appointment as Civil Judges (Junior Division) under rules 10 and 11 of the Part C shall be entered in the High Court Register in the order of selection. The names of the petitioners have not been entered in the said Register. Since the appointments are to be made only from amongst the candidates, whose names are entered in the Register, the petitioners cannot claim any right of appointment against such vacancies.

Still further, only 57 vacancies were advertised and 57 candidates have been appointed. The petitioners, whose names appear lower in merit after fulfilling the 57 vacancies, are not entitled to seek a direction for their appointment. A Division Bench of this Court in CWP No. 14467 of 2011 titled "Mayank Khosla & others Vs. State of Punjab & others" decided on 28.03.2012 has declined the claim of the petitioners to seek appointment against the vacancies not advertised. It was held to the following effect:

In view of the above judgments, the petitioners cannot claim any right of appointment relying upon Rule 8 of the Rules, when the advertised vacancies stand filled up. The decision is of the employer as to how many seats are filled up. The petitioners cannot seek any mandamus to seek appointments against the posts not advertised. Such Rule emplowers the employer to advertise anticipated vacancies, but no right accrues to a candidate only for the reason, such vacancies have not been advertised.

Mr. Malik has relied upon a judgment of learned Single Bench in CWP No. 13215 of 2009 titled "Gajraj Singh Vs. State of Haryana", wherein it has been held that once a merit list is prepared, the next candidate in the merit will have to be considered in the waiting list and, thus, in the eventuality of availability of a vacancy on account of non-joining of the selectee, it has to be offered to the next candidate in the merit, notwithstanding the fact whether any formal waiting list has been notified or not.

We do not find that the said judgment is of any assistance to the argument raised by the learned counsel for the petitioners. The candidate in the merit list will have a right for consideration only in the eventuality of availability of vacancy on account of non-joining of the selectee. In the present case, all the vacancies i.e. 57 stand filled up. The petitioners claim right of appointment against the non-advertized vacancies. The judgment in Gajraj Singh''s case (supra) does not deal with the said aspect. There is no direction nor there could be any direction that all the vacancies are required to be filled up even though the same were not advertised. Consequently, we do not filed any merit in the writ petitions. The same are accordingly dismissed.