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2006 Supreme(P&H) 3788
2006 (4) LAW HERALD 3225 (P&H) (DB)
PUNJAB AND HARYANA HIGH COURT
(DIVISION BENCH)
Before
S.S. NIJJAR A.C.J., S.S. SARON, J.
AMENDED CIVIL WRIT PETITION NO. 6099 OF 2005
12.10.2006
Mohinder Singh
Petitioner
Vs.
State of Haryana and another
Respondents
Mr. G.K. Chatrath, Senior Advocate with Ms. Alka Chatrath, Adovcate.
Mr. Rajiv Atma Ram, Senior Advocate with Mr. Hemraj Mittal, Advocate.
Mr. P.S. Patwalia, Senior Advocate with Mr. D.S. Patwalia, Advocate.
Mr. R.K. Malik, Mr. Vivek Sharma, Mr. Jagbir Malik, Mr. Y.P. Malik, Mr. Vivek Suri, Mr. Sandeep Kotla, Mr. G.P. Singh, Mr. C.B. Goel, Mr. G.S. Bajwa, Mr. G.P. Singh, Mr. Hari Om Attri, Advocates.
For the Respondents-State:Mr. H.S. Hooda, Advocate General, Haryana with Mr. M.L. Saggar, Addl.A.G., Haryana and Ms. Palika Monga, AAG, Haryana.
For the Respondent-Haryana Public Service Commission:Mr. H.N. Mehtani, Advocate.
IMPORTANT POINTS
All executive actions of the Government of a State are required to be expressed to be taken in the name of Governor.
Judicial notice cannot be taken on newspaper reports in respect of claim made by Politician during campaign.
Headnote:Service Law - Office noting would not create any legal right for appointment.
Service Law - Strength of Cadre - Decline of - Government has absolute discretion to reconstruct the cadre; and has to be subjective satisfaction of the Government.
Service Law - Appointment - Petitioners cannot claim any legal right for appointment on a fixed number of posts.
Punjab Civil Services (Executive Branch) Haryana Amendment Rules, 2002 - Rule 9 - Punjab Civil Services (Executive Branch) Rule 1930, (as applicable to State of Haryana) Rule 3 (2) - Constitution of India, 1950 - Article 226, 227, 14, 16 - Service Law - Arbitrariness - Selection of Haryana Civil Service (Executive Branch) - State of Haryana reducing the cadre strength of Haryana Civil Service (Executive Branch) - Writ for mandamus directing the respondents to issue appointment letters to the petitioners and in the nature of certiorari quashing notification dated 13.05.2005 whereby the cadre strength of Haryana Civil Service (Executive Branch) has been reduced from 300 to 230 without forming Cadre Review Committee - Notification issued by the Government found to be validly issued - Upon examination of the record, Court has come to the conclusion that notification dated 13.05.2005 does not suffer from any arbitrariness - Action of the State is not unfair - Inter alia, held;
1. When there are no vacancies, no mandamus can be issued to the respondents to appoint the petitioners. (Para 33)
2. The power of determining the strength and composition of the cadre vests in the Government - Notification dated 13.05.2005 does not bring any drastic change in cadre strength. (Para 22)
3. Notification dated 13.05.2005 is entirely legal - Does not suffer from any legal or equitable infirmity (Para 32)
4. Not possible to held that the petitioners have suffered any loss or damage, much less irrepairable loss, by participating in the selection process. (Para 36)
5. A Candidate by making application does not acquire any right to the post; he merely acquires right to be considered for selection according to Rules. (Para 39)
6. Petitioners cannot claim any legal right for appointment on a fixed number of posts - Writ dismissed. (Para 42)
Haryana Civil Services (Executive Branch) Rules, 1930, (as applicable to the State of Haryana) - Rule 3 (2) - Cadre Review Committee - Strength of Cadre - The power to determe the strength and composition of the Cadre vests in the Government and not in any particular committee - Cadre Review Committee is merely an instrument of the Government to suggest a proper strength of the Cadre - Notification dated 13.05.2005 does not bring any drastic change in cadre strength (Para 22)
Constitution of India, 1950 - Article 14, 16, 226, 227 - Service Law - Promissory Estoppel - Reduction in Cadre strength - The plea of “Promissory Estoppel” would be a mixed question of law and facts - Plea of “Promissory Estoppel” cannot be allowed to be raised unless it is pleaded. (Para 46)
Model Code of Conduct for Elections - Clause 7 (vi) (d) - Selection made by HPSC - Ban on appointments - The Election Commission was entitled to take necessary steps for the conduct of a free and fair election. (Para 51)
Constitution of India, 1950 - Article 166 - Executive Action - All Executive Actions of the Government of State are required to be expressed in the name of Governor - The Notification issued in the name of Governor would not make it, any the less, a notification issued on behalf of the Government. (Para 22)
Constitution of India, 1950 - Article 226, 227 - Judicial Notice - On claims made by politicians during the period of campaign - No judicial notice can be taken on newspaper reports. (Para 55 and 57)
Constitution of India, 1950 - Article 226, 227 - “Decision making process” - Judicial Review - Judicial review of executive power in cases of clearly proven malafide, arbitrariness or where irrelevant considerations have materially affected the executive decision, are aimed at examining the “decision making process” and not the merits of the decision itself. (Para 23)
Constitution of India, 1950 - Article 226 - Service Law - Office - noting - Noting portion of the official record would not create any legal right in favour of the petitioners. (Para 25)
i) Mere selection for appointment does not create a legal right. (Para 33)
ii) Petitioners have not suffered any loss or damage, much less irrepairable loss by participating in the selection process. (Para 36)
Words and Phrases - “Alter, alteration and determined” - Explained - “Alter” is in contrast to word “reverse” - Reverse is equated to terms like “annul” or “rescind”.
Punjab Civil Service (Executive Branch) Rules 1930 (as applicable to State of Haryana) - Interpretation of - Rules has to be read as whole - Government has absolute discretion to reconstruct the Cadre - Has to be subjective satisfaction of the Government.
S.S. NIJJAR, ACJ.
1. On the request of the counsel for the petitioners, these writ petitions (CWP Nos.6099, 5437, 2839, 14371, 6258, 7683, 14317, 4818, 14370, 16951, 18572,4457, 12540,3768,2897 of 2005) are taken up for final disposal, at the motion stage. This common judgment will dispose of all the aforesaid writ petitions, as the facts as well as the legal issues are identical in all the writ petitions.
2. The petitioners seek the issuance of a writ in the nature of Mandamus directing the respondents to issue appointment letters to them as they have all been duly selected to the Haryana Civil Services (Executive Branch) (hereinafter referred to as the “HCS (EB)”) and/or to the Allied Services, pursuant to the result declared by the Haryana Public Service Commission respondent no.2 (hereinafter referred to as “the Commission”) on 30.12.2004. The petitioners also pray for the issuance of a writ in the nature of certiorari quashing the Notification dated 13.5.2005 (Annexure P-l) issued by the State of Haryana respondent no. 1 whereby the cadre strength of the Haryana Civil Services (Executive Branch) has been reduced from.
3. We may notice at the threshold the essential facts culled out from the pleadings, which are relevant for the adjudication of the controversy raised in these writ petitions.
4. The petitioners claim that they had applied in response to an advertisement issued by respondents no. 1 and 2 on 24.1.2004, for filling up 102 posts in the HCS (EB) and Allied Services. The recruitment, appointment and conditions of service of the HCS (EB) is governed by the Punjab Civil Services (Executive Branch) Rules, 1930, as applicable to the State of Haryana (hereinafter referred to as “the 1930 Rules”). The appointments to the service are made on the recommendations of the Commission. The selection process consisted of written examination followed by interview. The procedure for selection and appointment is contained in the Schedule attached to the statutory rules known as Punjab Civil Services (Executive Branch) Haryana Amendment Rules, 2002 (hereinafter referred to as “2002 Rules”). The advertisement dated 24.1.2004 and the subsequent selection process was conducted in accordance with the Schedule mentioned in Rule 9 of the aforesaid 2002 Rules. The preliminary examination was held on 23.5.2004. The main written examination was held from 1.8.2004 to 10.8.2004. The result of the main written examination was declared on 7.12.2004. Interviews were held from 15.12.2004 to 18.12.2004. The result was declared on noticed earlier, all the petitioners were declared to have been duly selected. They were, therefore, awaiting appointment orders when the Election Commission of India (hereinafter referred to as “the Election Commission”) announced the elections to the Legislative Assembly in the State of Haryana on 17.12.2004. Polling was to be conducted on 3.2.2005. The Election Commission also issued a Notification dated 17.12.2004, enforcing the Model Code of Conduct which was to be observed during the period of election. Clause 3 (d) of the Model Code of Conduct provided that from the date elections are announced by the Election Commission, ministers and other authorities shall not make any ad hoc appointments in Government, Public Undertakings etc. which may have the effect of influencing the voters in favour of the party in power. Clause 4 of the Notification banned the transfer of officers/officials connected with the conduct of the elections, in a number of departments. It was further provided in Clause 4 (vi) that the ban shall be effective till the completion of elections. On 23.12.2004, the Election Commission issued another letter to the Chief Secretary of the Government with the following directions:
“ The Commission has therefore directed that the State Government shall not issue appointment letters to the selected candidates without the permission of the Commission so long as the model code of conduct is in opera
