JITENDRA KUMAR & Ors. v. STATE OF HARYANA & Anr.

A B JITENDRA KUMAR & ORS. v. STATE OF HARYANA & ANR. DECEMBER 11, 2007 [S.B. SINHA AND HARJIT SINGH BEDI, JJ.] Service Law - Appointment - By recruitment - Selected candidates recommended by Public Service Commission - Appointment letters not issued due to coming into operation of c Model Code of Conduct in view of Assembly elections - Selection process alleged to be tainted by unsuccessful candidates -Vigilance inquiry in that regard directed - Successor Government reducing cadre strength - Selected candidates filing writ petition seeking appointment and challenging the notification whereby cadre D strength was reduced - High court dismissing the petition - On appeal, Held: Decision of the State is not malafide or arbitrary - Selectees do not have any legal right of appointment subject, inter alia, to bona fide action on the part of the State - In view of the allegation regarding selection process, decision of the State ;ustified - State is entitled to satisfy itself regarding propriety of the selection process - Direction for early disposal of inquiry - Haryana Civil Services (Executive Branch) and Allied Services and Other Services Common/Combined Examination Act, 2002 - s.

4 - Punjab Civil Service (Executive Branch) Rules, 1930 - Administrative Law F E Judicial Review - Of Policy decision - Interference with - Scope of - Held: Judicial review in such cases is though not prohibited, but should be exercised on the basis of known legal G principles- Superior court in exercise of its judicial review would not ordinarily direct issuance of any writ in absence of any pleading and proof of malafide or arbitrariness-- Pleadings. Doctrines/Principles - Doctrines of Legitimate expectation, H 98 \ ..... -· I ' ~ ~- ,_ ~ JITENDRAKUMAR&ORS. v. STATE OF HARYANA&ANR. 99 f Promissory Estoppel, Unreasonableness and Proportionality - A Applicability of .•· State of Haryana sent a requisition to the Public Service Commission for filling up 58 posts in HCS (Executive Branch) and 44 posts in Allied Services. After completion of all the stages B of competitive examination for the same, the selected candidates were recommended by the Commission.

Due to Assembly elections, Model Code of Conduct became effective and ban was imposed on issuance of appointment letters. Writ Petitions were filed leveling serious allegations against the then Chief C Minister and the Chairman of the Commission in respect of the selection. Vigilance inquiry was also directed to be conducted. After completion of the election, new Government took over. As appointment letters were not issued, successful candidates appellants filed writ petitions complaining about delay in issuance D of appointment letters. The new Government by a notification reduced the cadre strength. Writ Petition was amended challenging the notification. High Court dismissed the writ petitions on the grounds inter alia that efficacy of the earlier selection was doubtful and vigilance enquiry was pending. Hence the present appeals. E Dismissing the appeals, the Court HELD: 1.

No case bas been made out for interference with the impugned judgment of the High Court. It cannot be held that the decision of the State was either malajide or unreasonable F or unfair or arbitrary. It has not been alleged that the State was acting for unauthorized purpose. [Paras 37 and 47) [127-F] [133 D-E]

1.

In the fact situation obtaining in the instant case no 0 case has been made out where the court shall delve deep into the question of reduction in cadre strength. The High Court, for good and sufficient reasons, was of the opinion that the State had acted bonajide in issuing the notification dated reviewing the cadre strength. [Paras 25 and 35] [120 D-E] [126 E-F) H 100 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R. A

1.

An inflated cadre strength will have direct repercussions not only in the matter of good governance but alro on the public exchequer. The State while exercising its power to review the cadre strength is entitled to take note of the entirety of the situation including the question as to whether B the quantum of work has gone up or the activities of the State have increased warranting upward revision in the cadre strength. When a review committee is constituted under a statute, it has to act strictly in terms thereof. It must act within its four-comers. Determination of cadre strength on the basis of the representa- C tion made by the Association or exercise of suo motu power by the Chief Minister without any material having been brought before him for the purpose of increase in the cadre strength must be deprecated in str?ngest terms. (Para 341 (126 C-E] D

1.

Seven writ applications were filed by the unsuccessful candidates. Serious allegations were levelled ther-ein against the then Chief Minister and the then Chairman of the Commission. Some selected candidates have also been impleaded as party respondents therein. Purity of process of conducting of E examination as an issue was raised threin. Even allegations of favouritism and use of political influence in favour of nears and dears of the high-ups of the Government and the politicians were made. The matter indisputably is pending investigation by the Vigilance Bureau. The High Court, has also directed to carry p out an ,investigation. It may also be placed on record that the Commission was asked by the Vigilance Bureau to handover the records. [Para 26] (120 E-H] (121-A]

1.

There cannot be any doubt whatsoever th:it the State in absence of any other factor was obligated to make G appointments keeping in view the reduce~ cadre strength. The Commission holds a constitutional duty to see that the entire selection process is carried out strictly in accordance with law fairly, impartially and independently. The selectors appointed by the Commission or its Chairman and members are forbidden to H -F JITENDRAKUMAR&ORS. v. STATE OF HARYANA&ANR. 101 take recourse to favouritism. Showing of any favour to any A candidate on an irrelevant or extraneous consideration would be contrary to the constitutional norms of equality envisaged under Articles 14 and 16 of the Constitution of India. Fear or favour on the part of the Commission cannot but be condoned. [Para 35) [126 F-H] [127-A) B .•·

1.

Enquiry of Vigilance Bureau should, be allowed to be continued unless the State in terms of the report made by the Vigilance Bureau and upon making an enquiry of its own satisfies itself that the selection process was not tainted. Its disinclination c to make an appointment till then cannot be found fault with. [Para 36) [127 B-D]

1.

It may be true that before the High Court the contention raised by the State was not in regard to the pendency of the Vigilance Enquiry but lack of vacancy, but it must also be D noticed that the High Court itself despite perusing the records maintained by the State has clearly arrived at a finding that the enquiry by the State Vigilance Bureau had already been ordered, it cannot be ignored. The High Court in fact proposed to adjourn the matter sine die till the enquiry was completed, but the same E was not acceptable to the appellants. [Para 43) [131 G-H] [132-A]

1.

While embarking on a question of this nature, this Court must take an overview of the entire scenario. It need not keep itself confined to the stand of the State before the High Court alone. Even in a case where the process of selection gives rise to a doubt in regard to the fairness on the part of the selecting authorities, there need not be any categorical finding that the selection process is vitiated. Such a question may have to be posed and answered in an appropriate case. [Para 44] [132 A-CJ -',

2.1. Section 4 of Haryana Civil Services (Executive Branch) and Allied Services and Other Services Common/Combined Examination Act, 2002 lays down that no appointment can be made beyond the number of posts advertised or against the F G f-l 102 SUPREME COURT REPORTS (2007] 13 lAddl.) S.C.R. A posts which were not advertised. In terms of the said provision, therefore, any vacancy which arose after the adve1iisement made in January, 2004 or after abolition of posts on 13.05.2005, which had not been advertised, cannot be offered to the appellants. The Government of Haryana also states that 10 posts are kept B vacant for unforeseen demands. It was further stated that on 13.05.2005, 290 officers were holding posts against 230 sanctioned posts. Thus, any vacancy which arose by reason of retirement or death having regard to Section 4 of the 2002 Act can also not be offered to the appellants. Besides, the selectees C do not have any legal right of appointment subject, inter alia, to bona fide action on the part of the State. The superior court iu exercise of its judicial review w.ould not ordinarily direct issuance of any writ in absence of any pleading and proof of malajide or arbitrariness on its part. Each case, therefore, must be considered D on its own merit. [Paras 30, 31 and 45) [132 C-F] [ 125 C-D) Ashok Kumar and Ors. v. Chairman, Banking Service Recruitment Board and Ors. (1996) 1 SCC 283; Shankarsan Dash v. Union of India (1991) 3 SCC 47; R.S. Mittal v. Union of India E 1995 Supp (2) SCC 230; Asha Kaul (Mrs.) and Anr v. Swte al Jammu and Kashmir (1993) 2 SCC 573; A.P Aggarwal v. Gow. of NCT of Delhi and Anr. (2000) 1 SCC 600; Food Corpn. of India and Ors. v. Bhanu Lodh and Ors. (2005) 3 SCC 618 - relied on.

3.1. If lack of bonafide or arbitrariness on the part of the F State is proved, whether the right is considered to be a vested or accrued right, or othenvise a negative right, the superior court may exercise its power of judicial review. The judicial intervention would, thus, be possible only when a finding of fact is arrived at in regard to acts of omissions and commission on G the part of the State and not othenvise. [Pai·a 32] [125 G-HJ [126-AI

3.2. What would be the need of the State and how an administration shall be run is within the exclusive domain of the H State. The power of judicial review in such matter is very limited. I -f i JITENDRA KUMAR & ORS. v. STATE OF HARYANA&ANR. 103 The superior judiciary ordinarily would not interfere in a matter A involving policy decision. It does not mean that the policy decision o~ the State is beyond the realm of judicial review. However, power of judicial review can be exercised only on the basis of known legal principles. [Para 25] [120 B-D]