KAILASH CHANDER SHARMAversusSTATE OF HARYANA AND ORS.

                        KAILASH CHANDER SHARMA
                                   v.
                       STAIB OF HARYANA AND ORS.

                                NOVEMBER 16, 1989

                 [RANGANATH MISRA, P.B. SAWANT AND
                        K. RAMASWAMY, JJ.J

            Civil Services: Assistant District Attorney-Appointment a/-
       Undertaking given by State-Compliance of-Direction issued.

             In a group of cases filed in this Court in connection with recruit-
       ment to the posts of Assistant District Attorneys hy the Stale Public
       Service Commission;    The Respondent-State had undertaken that if any
       post was to· be filled up within one year, candidates who were selected
       by the Public Service Commisison but had not been appointed, would
       be appointed in the order of merit. However, the.petitioner, who was
       selected by the Public Service. Commission and, assigned 39th position
       in the order of merit, was ilot given the appointment, and a fresh
       notification was issued by the Public Service Commission for selecting
       candidates for 27 posts. Therefore, the petitioner filed a writ petition in
       this Court alleging that the respondents had arbitrarily and illegally
       denied him his right to appointment to the posts.

             The respondent-State contended that since only 37 posts were
       earmarked for general candidates and no vacancy had arisen before the
       expiry of one year, the petitioner could not be appointed as per the
       undertaking given by the State.

             Disposing of the Writ Petition, this Court,

             HELD: When this Court had given the direction on the undertak-
       ing given by the State that selected candidates would be appointed in
       vancancies that would arise within one year, it was expected that the
       State Government would comply with the spirit and substance of the
       direction, and not to avoid compliance on the technical plea of expiry of
       the one year period. The Court would not permit the State to avoid
       implementation of the order made by it on any technical or unjustified
       stand. (I92E~F]

            It is incredible to believe that within one year even one vacancy
       had not arisen when 27 posts were subsequently notified for direct
·--·                                      189
    190        SUPREME COURT REPORTS              [ 1989] Supp. 2 S.C.R.

  recruitment. It would be obvious, and it is common knolwedge, that
A vacancies keep arising as and when the incumbents of such posts either
  retire or resign or new posts are created. On the fact-situation arising
  out of the record of the proceeding, it has to be concluded that some of
  these 27 vacancies did arise within the one year period set by this Court
  but the State Government delayed action to allow the year to run out
B and to free itselffrom the purview of the direction. [i92C, D•FI
         The petitioner, therefore, became entitled to be considered for
    appointment to the post of Assistant District Attorney and given
    appointment in accordance with the rules. The respondents would
    accordingly appoint the petitioner against one of the posts subject to
    physical fitness. [192G) ·
c         CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No.
    1157 of 1988.
          (Under Article 32 of the Constitution oflndia)
          R.K. Kapoor, Mrs. Anil Katiyar (not present) for the Petitioner.
D         Rajinder Sachar and Mahabir Singh for the Respondents.
          The Judgment of the Court was delivered by
        K. RAMASWAMY, J. This writ petition under Article 32 of the
  Constitution is a sequel to the order passed by this Court in Sat Dev
  Parasher, etc. etc, v. State of Haryana, in Writ Petition Nos. 887 of
E 1986 and a batch of connected Special Leave Petitions, Transfer Peti-
  tions etc. etc. in December, 1985. The State of Haryana made on
  different dated ad hoc appointments to the posts of Assistant District
  Attorney. Applications were invited by the Haryana Public Service
  Commission to make recruitment to the posts of Assistant District
  Attorney. The ad hoc appointees filed writ petitions under Article 32
F and also Special Leave Petillons against the judgment of the High Court
  of Punjab & Haryana. Their main contention was that they have been
  regularly recruited though on ad hoc basis after interview by a ,duly
  constituted Committee and that they were entitled to be regularised.
  This Court while disposing of the cases held that the petitioners
  therein were appointed only on ad hoc basis till suitable candidates
G were available for regular appointment. The interim orders passed on
  different dates were vacated. It was observed that "if amongst the'said
  petitioners any person has been appointed regularly by the Public
  Service Commission subsequently he shall hold the post pursuant to
  the order issued on the recommendation of the Public Service Com-
  mission. This order of dismissal will not affect him. The petitions are
H disposed of accordingly. The candidates who have been selected by the
     K.C. SHARMA v. STATE OF HARYANA [K. RAMASWAMY, J.]              191

Public Service Commission shall be appointed by the State Govern-
ment on regular basis and any stay order passed by this Court against       A
their appointment is vacated. These petitions are accordingly allowed.
Dr. Y.S. Chitale, learned counsel for the State, submits that if any
post of the Assistant District Attorney is to be filled up within one
year, candidates who are selected by the Public Service Commission
but have not been appointed shall be appointed in the order of merit        B
 ...... " The petitioner was, admittedly, selected by the Haryana
Public Service Commission, as communicated by letter dated May 7,
1986, with his Roll No. 446. He stood at Serial No. 39 in the order of
merit among sixtysix selected candidates. fa the counter affidavit filed
in the earlier group of petitions by the State of Haryana it was admit-
ted that 39 posts were to be filled from among the selected general
candidates. The petitioner having been selected on merit and assigned       c
the 39th position, was also entitled to be appointed as Assistant Dis-
trict Attorney. It is the petitioner's case that the respondents have
arbitrarily and illegally denied him his right to appointment as
Assistant District Attorney. It is his case that several representations
made in this regard received no consideration constraining him to           D
approach this Court for issuance of a Writ of Mandamus or order or
direction to the respondents to give his due appointment. In the
counter affidavit, it is admitted that the petitioner was selected by the
Public Service Commission and he stood at Serial No. 39, but the posts
earmarked for the general candidates were 37. Consequently, the
petitioner could not be appointed. This Court seeing the sepcific           E
admission made on the earlier occasion that 39 posts were earmarked
for general candidates, called upon the respondents to explain the
contradictory stand set up in the present case. A further affidavit was
filed stating that averments of earmarking 39 posts for general candi-
dates is a typographical mistake. The total number of posts notified
were 57, the breakup of which is that 11 posts were reserved for            F
Scheduled Castes, six posts were reserved for Backward Classes and
three posts were reserved for NSML and the remaining 37 were to be
filled up from general candidates. They regretted the typographical
error committed in the earlier affidavit. It is also admitted that subse-
quent notification was issued by the Public Service Commission to
select 27 candidates to fill up 27 posts of Assistant District Attorneys,   G
but claiming to be, after the expiry of the one year limit set by this
Court. The stand taken by the respondents in their counter affidavit
and argued by their counsel is that the direction issued by this Court
referred to herein before was strictly adhered to and appointments
were given to all the selected candidates. No vacancy had arisen before
the expiry of one year as indicated in the judgment, and therefore, the     H
    192         SUPREME COURT REPORTS                [ 1989] Supp. 2 S.C.R.

A petitioner could not be appointed as per the undertaking given by the
  counsel for the State. The petitioner has no fundamental right to
  appointment. He has to apply afresh and take his chance for selection
  by the Haryana Public Service Commission.

B          The admitted fact is that the petitioner was one among the
    selected candidates standing at Serial No. 39 in the order of merit by
    the Public Service Commission and was recommended for appoint-
    ment to the post of Assistant District Attorney. The counsel for the
    State had given an unequivocal undertaking that if any vacancies arise
    within one year from the date of the judgment, the candidates selected
    and recommended by the Public Service Commission shall be
C   appointed to those posts in the order of merit. It is uncredible to
    believe the averment of the State that within one year even one
    vacancy in the post of Assistant District Attorney had not arisen for
    appointment when 27 posts were subsequently notified for direct
    recruitment. It is not their case that all the 27 vacancies had suddenly
    arisen on a particular date just after the expiry of one year. It would be
D   obvious and it is common knowledge that vacancies kept arising' as and
    when the incumbents of such posts either retire or resign or new posts
    are created. When this Court had given the direction on the undertak-
    ing given by the State that selected candidates would be appointed in
    vacancies in the said posts that would arise within one year, it was
    expected that the Haryana State Government would comply with the
E   spirit and substance of the direction, and not to avoid compliance on the
    technical plea of expiry of the one year period. We wanted to !;:now the
    definite dates when the twenty seven vacancies arose but the details
    have not been placed on the record inspite of the Court's query. On
    the fact-situation arising out of the record of the proceeding, it has to
    be concluded that some of these twenty seven vacancies dill arise
F   within the one year period set by this Court in its earlier order but the
    State Government delayed action to allow the year to run out and to
    free itself from the purview of the direction. The Court would not
    permit the State to avoid implementation of the order made by it on
    any technical or unjustified stand. In these circumstances, we are of
    the considered view that the petitioner became entitled to be con-
G   sidered for appointment to the post of Assistant District Attorney and
    given appointment in accordance with the rules. The respondents are,
    accordingly, directed to appoint the petitioner against one of the posts
    of Assistant District Attorney subject to physical fitness. No costs.
                              .                                       I


    N.P.V.                                              Petition disposed of.