Dismissed
Dhirinder Chopra v. State of Haryana and Ors.
Punjab & Haryana HCCWP/21348/2011
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PUNJAB AND HARYANA AT HIGH COURT OF PUNJAB…
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CWP No.21348 of 2011 (O&M) Date of Decision: December 20, 2012 ****
Dhirinder Chopra
. . . Petitioner
vs.
State of Haryana & Ors.
…. Respondents
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Baldev Singh, Advocate (in CWP No.21348 of 2011)
Mr. Rajiv Atma Ram, Senior Advocate with Mr. Nikhil Chopra, Advocate (in COCP No.180 of 2011) for the petitioner(s)
Mr. Ravi Dutt Sharma, DAG Haryana
Mr. BS Walia, Advocate for respondent No.2
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(1) This order shall dispose of CWP No.21348 of 2011 as well as COCP Nos.180 & 520 of 2011 which vide the order dated 14th May, 2012 were ordered to be heard together. The controversy pertains to appointments to Haryana Superior Judicial Service in the rank of Additional District & Sessions Judges. The petitioner in CWP No.21348 of 2011 while seeks quashing of the orders dated 22nd December, 2010 and 18th July, 2011 (Annexures P12 & P21, respectively) passed by Government of Haryana declining to de-reserve the unfilled reserved posts of Scheduled Castes and Backward Classes
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and consequential appointment of the petitioners, who belong to the General Category, against such de-reserved posts, the petitioners in the contempt petitions allege willful and deliberate disobedience of the directions issued by this Court in relation to the afore-stated appointments. For true appreciation of the controversy, the facts are briefly extracted from CWP No.21348 of 2011.
(2) Respondent No.2 - Punjab & Haryana High Court (in short, 'the High Court') vide advertisement dated 18th May, 2007 invited applications for selecting 22 candidates (Gen-14, SC-5, BC-3) to be appointed to the Haryana Superior Judicial Service by direct recruitment to be made through a competitive examination in accordance with the provisions of Haryana Superior Judicial Service Rules, 2007 (in short, 'the 2007 Rules'). The petitioners (in the Writ Petition as well as the Contempt Petitions) applied and competed against the Open Category posts. They qualified the written examination and were interviewed by the Selection Committee on 8th and 9th April, 2008. The final result was declared on 25th April, 2008 recommending names of 16 candidates in all, out of which 13 were from General Category, 2 from Scheduled Castes category and 1 was from the Backward Class category.
(3) The High Court vide its memo dated 28/29th April, 2008 (Annexure P4) recommended names of the above-stated 16 candidates (who were other than the petitioners) in order of merit for appointment
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as Additional District & Sessions Judges against direct recruitment posts.
(4) The High Court vide the above-mentioned memo dated 28/29th April, 2008 further recommended that since against 6 vacancies of Scheduled Castes category and 3 of Backward Class category only 2+1=3 candidates could qualify and figure in the selection list and since direct recruitment to the Superior Judicial Service from the Bar was being made after 13 long years and there was a dire need for more officers, hence " the following six candidates of General category in that order of merit against four vacancies of Scheduled Caste and two vacancies of Backward Class category for appointment as Additional District & Sessions Judges in the State of Haryana in relaxation of Rule 18 of Haryana Superior Judicial Services Rules, 2007 ", be also appointed:-
1. Sudesh Kumar Goyal s/o Sh. Daya Krishan Goyal;
2. Harish Kumar Goel s/o Sh. FC Goel; 3. Umed Singh s/o Sh. Mange Ram; 4. Dhirinder Chopra s/o Sh. SK Chopra; 5. Ms. Nidhi Garg d/o Sh. Rajesh Garg; 6. Ravindra Kumar s/o Sh. Khem Chand Singh
the writ petitioner, the candidates at Sr.No.5&6 (Ms. Nidhi Garg and Ravinder Kumar) are petitioners in COCP No.180 and 520 of 2011, respectively.
(6) The afore-stated selection was challenged before this Court in CWP No.9157 of 2008 (Keshav Kaushik vs. State of Haryana & Ors.)
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and it appears that during its pendency, the State Government passed an order dated 22nd September, 2008 (Annexure P8) whereby second part of the recommendations made by the High Court on 28/29th April, 2008, namely, to de-reserve the unfilled reserved posts and offer appointment to the General category candidates against those post, was turned down. The rejection order was challenged by the contemptpetitioners (Nidhi Garg and Ravinder Kumar) in CWP No.17708 of 2008 and CWP No.4924 of 2009, respectively which were also taken up for final disposal along with CWP No.9157 of 2008.
(7) A Division Bench of this Court vide order dated 18th May, 2010 quashed the selection of five candidates on the ground of eligibility out of whom four were from General category and one from the reserved category of Scheduled Caste and issued the following directions as well:-
“(B) As a consequence of the quashment of the selections/appointments of above named respondents, the resultant five vacancies shall be filled up from the candidates next in the order of merit, out of the panel prepared by the Selection Committee;
(C) The appointment of Fast Track Court Judges by a process of absorption after further examination and selection contained in the recommendation of the Selection Committee dated 18.03.2008 is affirmed.
(D) Order dated 22.9.2008 (Annexure P-8 in CWP No.17708 of 2008 rejecting the request of the High
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Court for de-reservation of six vacancies (four Scheduled Caste, 2 Backward Classes) is hereby quashed. Resultantly, the matter is remitted back to the Government to re-consider the request of the High Court for de-reservation in relaxation of rules by the competent authority empowered under the Government instructions dated 7.9.2008 and Rule 31 of the Haryana Superior Judicial Service Rules, 2007. The process of re-consideration shall be completed within six weeks and the decision be communicated to the High Court;
(E) If on such re-consideration, the State decides to de-reserve the vacancies, candidates recommended by the High Court vide its recommendation letter dated 25.4.2008, shall be appointed;
(F) Writ petitions claiming other reliefs shall stand dismissed.”
(8) The Division Bench judgement pertaining to the quashing of selection of the five candidates on the point of eligibility is under challenge before the Hon'ble Supreme Court in SLP(Civil) No.23562 of 2010. The sub-judiced part of the Division Bench order, however, has no bearing on the point in issue raised before us which is only an offshoot of directions No.(D) & (E) reproduced above. Suffice it to mention here that the State Government on re-consideration of the reference made by
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the High Court for de-reserving the unfilled reserved posts in relaxation of Rules, has expressed its inability to accept such recommendations. The wait-listed candidates, two of whom had earlier approached this Court, have initiated the contempt proceedings alleging willful and deliberate disobedience of the court directions while another candidate from the waiting list seeks quashing of the State Government decision(s) in not accepting the High Court's recommendations, besides a writ of mandamus to direct his appointment.
(9) It would be beneficial at this stage to take notice of the findings/observations made by the Division Bench in its order dated 18.05.2010 which culminated into the directions No.(D) & (E) above. The Bench held that " the Government has not considered the recommendations of the High Court for relaxation of rule in the right perspective. As a matter of fact, the larger public interest has been totally ignored. We can take judicial notice of the fact that large number of cases are pending in courts in the State of Haryana... ". It further held that :-
“87. We have also noticed that Rule 31 provides for relaxation by the Governor in consultation with the High Court. The request of the High Court for dereservation in relaxation of Rule 18 has also not been placed before the Governor for his opinion and thus the entire exercise of consideration by the Government for de-reservation and relaxation of rules is improper.
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It would not be out of context to say that there was no
recommendations/request of the High Court for dereservation of the vacancies.”
(10) The Bench also made the following observation :-
“However, the question of relaxation of the rules and de-reservation is to be examined by the Government in the context of its own policy as well. Though we may say that the government should not ordinarily ignore the recommendations of the High Court, even for relaxation of the rules and dereservation of the vacancies, particularly, when the High Court has spelt out the reasons for its opinion. We are of the considered opinion that the matter regarding dereservation of the six vacancies, particularly, two vacancies of the Backward Classes needs reconsideration by the Government in view of our observations here-in-above.”
(11) For understanding the viewpoint of the State Government, we may firstly refer to its order dated 22nd December, 2010 (Annexure P12) passed in purported compliance to the order dated 18th May, 2010 of this Court and it says that:-
“The grounds mentioned for de-reservation are not covered under the instructions dated in September,
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1989 as the posts have not been advertised two/three times. As is evident from the communication of the Registrar General, Hon’ble Punjab and Haryana High Court recruitment had not taken place for the last thirteen years. It is also pertinent to mention that even after passing of orders refusing dereservation by the Government, the posts have not been re-advertised during past two years. The vacancies reserved for SC & BC could have been readvertised in the past two years.
Thus, even on reconsideration the Committee is of the firm view that no ground for de-reservation of posts reserved for scheduled castes/scheduled tribes is made out under the guidelines contained in the instructions dated 7th September, 1989 as two or three advertisements as required in the instructions have not been issued, nor there are exceptional and rare circumstances justifying de-reservation of the posts. The Committee is of the considered opinion that it should not be allowed as it shall not only be against the constitutional mandate, the reservation policy of the State Government but shall also set a bad precedent. As regards, the posts of backward
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classes, the matter may be separately examined by
the authority concerned.”
(12) As regards the two posts of Backward Classes, the State Government viewed that:-
“Regarding the two posts of Backward Classes, the applicable instructions were issued by the Chief Secretary, Haryana vide memo No.22/43/86-3 GSIII dated 30th July, 1986. The Instructions are quoted below:
Similarly if after two advertisements, the candidates belonging to Backward Classes are not available, the posts will be re-advertised for the third time indicating that if candidates belonging to Backward Classes are not available, these posts will be filled up from among Scheduled Castes. If, however, the candidates belonging to the Scheduled Castes as well as Backward Classes are not available, the posts will be filled up from the candidates belonging to the General Category.”
(13) The Advocate General, Haryana appears to have made a statement in the contempt proceedings on 16th May, 2011 that " the question of de-reservation and relaxation of Backward Classes vacancies shall be considered within a month ". The State Government though reconsidered but reiterated its earlier viewpoint and vide memo dated 18th July, 2011 (Annexure P21), forwarded the proceedings of the meeting of the Officers’ Committee held on 13th June, 2011 (Annexure P22). These
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proceedings unveil that Rule 31 of the 2007 Rules, which enables the Governor of Haryana in consultation with the High Court, to relax any provision of the Rules for the reasons to be recorded in writing, was inapplicable in the instant case for the reason that :-
“In the preamble to the said rules it is mentioned that
the rules have been framed for regulating the recruitment and conditions of services appointed to the Haryana Superior Judicial Services. It is pertinent to mention that the petitioner in the present case has not been till date appointed in the Haryana Superior Judicial Services and is not a member of the service. Thus, the said Rule 31 cannot be made applicable under the present set of circumstances as the persons who are yet to be appointed are not covered within the scope of the said rules. It is a settled law that service rules are applicable to members of the service and the persons who are yet to be appointed cannot claim relaxation under the Rules.”
(14) The decision of the Officers’ Committee further highlights
the procedure required to be followed for de-reservation of any post in Class-I services in rare and exceptional cases for which the following pre-conditions contained in Instructions dated 7th December, 1989 must be complied with :-
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“ a) Where candidates belonging to Scheduled Castes/Scheduled Tribes are not available to fill up the vacancies reserved for them in direct recruitment, inspite of required number of advertisements i.e. two/three advertisements, the vacancies shall not be filled up by candidates other than belonging to these communities. b) In case of direct recruitment to the vacancies meant for Scheduled Castes and Scheduled Tribes in Class-I services in rare and exceptional cases where after the nonavailability of suitable Scheduled Castes/ Scheduled Tribes candidates, the posts cannot be allowed to remain vacant in public interest. c) After above conditions are fulfilled the Administrative Department is required to put up a proposal giving full justification for dereservation before the Committee .”
(15)
The Officers’ Committee thus concluded :-
“The said posts having not been advertised 2/3 times according to instructions there is no justification for de-reserving the said posts at this stage after three years of recruitment. Moreover, relaxation cannot be claimed as a matter of right and the authority who is
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to grant relaxation has to keep in view the necessary guidelines, as laid down in the relevant instructions which provides a mechanism for relaxation. In the present case, the facts and the policies of the Government do not favour relaxation or provide for de-reservation of the reserved posts.”
(16) The petitioners in their endeavour to counter the stand-point of the State Government vehemently urged for determining the following questions of law:-
(17) State of Haryana in its reply/affidavit has made the following preliminary submission No.2 :-
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notification No.75 dated 08.04.2011 and Notification No.2, dated 02.01.2012 (Annexure R/1 & R/2). It is also submitted here that five vacancies of Scheduled Castes and two vacancies of Backward Class categories have already been advertised by the Hon’ble Punjab and Haryana High Court. Therefore, the question of staying the orders dated 22.10.2010 Annexure P/12 & 18.07.2011 Annexure P/21 are not in the interest of justice. In view of the position explained above the petitioner is not entitled to be appointed as Additional District and Sessions Judge.”
(18) While disputing the petitioners’ claim on merits, the State in para 11 of its reply maintains that :-
“That with regard to the appointment of 06 General Category candidates recommended by the Hon’ble High Court against reserved vacancies, it is submitted that as per instructions dated 07.09.1989 (Annexure P9) the Government has decided that where candidates belonging to Scheduled Castes/Scheduled Tribes are not available to fill up vacancies reserved for them in direct recruitment, in spite of require number of advertisement i.e. two/three advertisements, the vacancies shall not be filled up by
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candidates other than those belonging to these communities. There will be no de-reservation of vacancies meant for s Scheduled Castes/ Scheduled Tribes to be filled by the direct recruitment. However, in exceptional cases, due to non availability of Scheduled Castes /Scheduled Tribes candidates and if the posts cannot be allowed to remain vacant in public interest, the Administrative Department will put up a proposal with full justification of dereservation to the Committee of Secretaries of the State Government comprising of Chief Secretary, Finance Secretary and the concerned Administrative Secretary.”
(19) The petitioners in their replication have controverted the State Government’s claim and have appended the advertisement dated 6th December, 2003 (Annexure P25) whereby 16 posts of Haryana Superior Judicial Services including 4 from Scheduled Castes category and 1 from Backward Class category were advertised. It is averred that the posts sought to be de-reserved were advertised in the past as well.
(20) State of Haryana has also filed its rejoinder along with a letter dated 2nd June, 2012 (Annexure R5) received from the High Court clarifying that the posts in Haryana Superior Judicial Service meant for the direct recruitment though were advertised on 3rd April, 2001 and again on 6th December, 2003 but the selection-process was
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scrapped vide Full Court decision dated 21st September, 2005 as certain amendments in the Service Rules were under consideration. (21) We have heard learned counsel for the parties at some length and gone through the record as well as the decisions cited by them in support of their respective contentions. (22) In Hari Datt Kainthla & Anr. vs. State Of Himachal Pradesh & Ors. (1980) 3 SCC 189 , the Hon'ble Supreme Court harmonised the power of appointment of District Judges under Article 233 of the Constitution vested in the Governor of a State viz. the control over Subordinate Courts vested in the High Court under Article 235 of the Constitution and held that:-
“Article 233 confers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges but this power is hedged in with the condition that it can be exercised by the Governor in consultation with the High Court. In order to make this consultation meaningful and purposive the Governor has to consult High Court in respect of appointment of each person as District Judge which includes an Additional District Judge and the opinion expressed by the High Court must be given full weight.”
(23) In MM Gupta and Ors. vs. State of J&K and Ors., (1982)
3 SCC 412 , the Governor appointed the District Judges ignoring the
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recommendations made by the High Court. Disapproving such an action and reiterating the true import of Article 233 as interpreted in Chander Mohan vs. State of UP, AIR 1966 SC 1987 , it was ruled that :-
“We are of the opinion that normally, as a matter of rule, the recommendations made by the High Court for the appointment of a District Judge should be accepted by the State Government and the Governor should act on the same. If in any particular case, the State Government for good and weighty reason find it difficult to accept the recommendations of the High Court, the State Government should communicate its views to the High Court and the State Government must have complete and effective consultation with the High Court in the matter. There can be no doubt that if the High Court is convinced that there are good reasons for the objections on the part of the State Government, the High Court will undoubtedly reconsider the matter and the recommendations made by the High Court. Efficient and proper judicial administration being the main object of these appointments, there should be no difficulty in arriving at a consensus as both the High Court and the State Government must necessarily approach the question in a detached manner for achieving the true objective of
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getting proper District Judges for due administration of justice.”
(24) The Constitution Bench decision in State of Bihar & Anr. vs. Bal Mukund Sah & Ors., (2000) 4 SCC 640 , is relied upon by the petitioners to contend that the State Government can provide reservation in judicial services only after consultation with the High Court within the framework of Constitutional scheme under Articles 233 and 234 and for maintenance of efficiency in judicial administration which falls within the exclusive purview of the High Court. The question that arose for consideration was whether the Legislature of Bihar State was competent to enact the Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991, in so far as Section 4 thereof sought to impose reservation in direct recruitment to the posts in the subordinate judiciary also. After taking notice of the admitted facts that provisions of the State Act were applicable for recruitment to the subordinate judiciary including District Judges and there was no prior consultation with the High Court before making such provision, the Apex Court held that the State Legislature cannot make law dealing with recruitment to judicial services as the said field is carved out in the Constitution itself in Chapter-VI and that Article 234 is not subject to any legislation to be made by the appropriate Legislature. It was further held that the power of Legislature under Article 309 will not extend to the making of a law in relation to the recruitment to judicial
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services. It was also ruled that the question that providing reservation in the subordinate judiciary covered by Articles 233 & 234, shall affect the efficiency of the judicial administration, is a matter within the exclusive purview of the High Court which shall have to be consulted and that “ such consultation is a Constitutional obligation before any Rules are made for reservation ”.
(25) Malik Mazhar Sultan & Anr. vs. UP Public Service
Commissioner & Ors., (2006) 9 SCC 507 , draws attention to the inordinate delay in filling up the vacancies in subordinate courts at all levels and the concern shown by the Supreme Court in this regard by issuing appropriate directions to the High Courts. A recent decision in Chief Information Commissioner & Anr. vs. State of Manipur & Anr., 2012 (1) RCR (Civil) 374 , has been relied upon to re-state that where as Statute provides for something to be done in a particular manner, it can be done in that manner alone and all other modes of performance are necessarily forbidden. This has been quoted with reference to the manner in which the power of relaxation under Rule 31 of the 2007 Rules ought to have been exercised by the State Government.
(26) We now proceed to answer the questions as formulated in para 16 of this order and which directly arise for consideration in these cases.
Question No.1&2
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(27) It does not call for a bigger debate that under our Constitutional scheme, the High Court is vested with the absolute control over the subordinate judiciary which essentially includes the selection of appropriate and suitable persons to man the posts in subordinate judiciary. It is equally well-established that ‘consultation’ with the High Court within the meaning of Articles 233 & 234 is not an empty formality and must always be held in the manner as laid down by the highest Court of the land in a string of judgements some of which have been cited above, for it is of paramount importance for the independence of judiciary. The recommendations made by the High Court thus shall ordinarily be binding on the State Government and when the High Court makes certain recommendations in relation to the affairs of the subordinate judiciary within the ambit of Articles 234 and 235 of the Constitution, the State Government is not only obligated to give serious consideration to such recommendations but also to undertake an objective dialogue before it formulates a definite opinion to disagree with the High Court’s recommendations.
Question No.3
(28) In view of the authoritative pronouncement in Bal Mukund Sah’s case (supra), it is beyond any pale of doubt that the State Government cannot prescribe ‘reservation’ in judicial services without prior consultation of the High Court as the assessment of the impact of such reservation on the efficiency of judiciary falls exclusively within the domain of the High Court. The prescription of reservation in
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subordinate judiciary without giving due regard or weightage to the opinion expressed by the High Court cannot stand the litmus test of ‘independence of judiciary’ so deeply embodied in our Constitution.
(29) The real question that, however, arises for consideration is whether or not the tests as summarized in response to questions No.1 to 3 above, have been qualified and complied with faithfully by the State Government?
(30) We firstly deal with the compliance of question No.3, namely, invalid prescription of reservation by the State without consulting the High Court. Suffice it to notice Rule 18 of 2007 Rules which provides that “ the reservation of posts for the Scheduled Castes, Scheduled Tribes and Backward Classes shall be in accordance with the orders issued by the Haryana Government from time to time ”. It could not be disputed by the petitioners or the counsel for the High Court that the draft Rules of 2007, duly approved by the Full Court, were forwarded by the High Court to the State Government and the latter notified these Rules only after due deliberations and in consultation with the High Court. When the High Court itself resolved to provide reservation in accordance with the orders issued by the Haryana Government, it would be too farcical to say that the reservation policy of State Government or its subsidiary instructions dated 7th September, 1989 are inapplicable in the matter of appointment of Superior Judicial Services under the 2007 Rules. There can be no other conclusion except to hold that in view of Rule 18 ibid ,
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there exists a prior consultation and consent of the High Court to give effect to the reservation policy of State of Haryana in the matter of appointment to Haryana Superior Judicial Services as well. There is thus a substantial compliance of the mandate contained in Bal Mukund Sah’s case, hence the reservation policy formulated by State of Haryana shall have to be given effect to while making recruitments under the 2007 Rules.
(31) Adverting to the recommendations made by the High Court for appointment to the Haryana Superior Judicial Service, there is indeed no quarrel that 13 posts were meant for General category for which names of 13 candidates, ranked higher in merit than the petitioners, were duly recommended by the High Court vide its memo dated 28/29th April, 2008, along with three other candidates of reserved categories and all of whom have been given prompt appointment by the State Government. It would thus be unfair to accuse or insinuate the State Government of failing to honour the recommendations made by the High Court.
(32) As regards the second part of the recommendations made by High Court for appointment of the petitioners against the reserved posts after de-reserving the same, we are of the considered view that the stand-point taken by the State Government is just, reasonable and fair and it does no violence to Articles 233 to 235 of the Constitution. We say so firstly for the reason that the reservation policy of the State Government unambiguously stipulates that the posts reserved for the
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Scheduled Caste/Backward Classes can be de-reserved only in ‘rare’ and ‘exceptional’ circumstances if suitable candidates from these reserved categories are not available despite two or three attempts made to fill up such posts. The reserved posts in the instant case though were advertised by the High Court in the years 2001 and 2003 but concededly the recruitment process was scrapped due to proposed amendments in the Service Rules. The pre-condition for de-reservation of the reserved posts thus was never complied with.
(33) Secondly, a reservation policy for giving representation to the ‘Scheduled Castes’ or ‘Backward Classes’ in public employment is not a simplicitor administrative decision which can be varied, modified or put in abeyance through an executive action. Such a reservation policy owes its existence to Article 16(4) of the Constitution and is an effective tool to eliminate discrimination and restore equality so as to achieve the Constitutional object of inclusive growth. The recommendations made by the High Court in the instant case never intended nor could they be construed to set at naught the means of social welfare or to extend undue advantage to those general category candidates who failed to earn the requisite merit for appointment against open category posts. It is no longer debatable that Article 16(4) of the Constitution creates a field which enables the State to provide for reservation in favour of any backward class of citizens who are inadequately represented in public employment. [Ref. M. Nagraj vs. Union of India, (2006) 8 SCC 212 ]
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(34) Thirdly, there existed no compelling circumstance to invoke Rule 31 to relax Rule 18 of 2007 Rules, even if it was applicable, as the mandatory pre-condition for de-reservation of the posts, namely, to give two opportunities to the reserved category candidates to compete and prove their suitability against such posts, was not complied with. The power to relax statutory Rules is exercisable in exceptional circumstances and in public interest. Such a power can also be exercised to meet an emergent situation where injustice might have been caused or is likely to be caused to any person or class of persons. [Ref. (i) Syed Khalid Rizvi vs. Union of India, (1993) Suppl. 3 SCC 575; and (ii) State of Gujarat & Ors. vs. Arvind Kumar T.Tiwari & Anr., (2012) 9 SCC 545 ]
(35) Fourthly, the petitioners who are the wait-listed candidates have got no indefeasible or legally vested right to seek appointment. No mandamus need be issued by a writ court to appoint a candidate from the waiting list only because there exists a vacancy. In Bihar SEB vs. Suresh Parsad , (2004) 2 SCC 681 , the Supreme Court held that in
the absence of any statutory rules to the contrary, the employer was not bound to offer the unfilled vacancies to the candidates next below the candidates in the merit list. In Gujarat State Deputy Executive
Engineers’ Association vs. State of Gujarat, (1994) Suppl. 2 SCC
591 , it was ruled that unless the Government had acted arbitrarily, the High Court could not direct the Government to appoint the candidates from the waiting list to the vacancies of the relevant year or the future
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vacancies. Sanjoy Bhattacharjee vs. Union of India, (1997) 4 SCC
283 , also held that merely because the petitioner has been put in the waiting list, he does not get any vested right to appointment as it was not his case that anyone below his ranking in the waiting list has been appointed which could give him cause for grievance. Similarly, Surinder Singh vs. State of Punjab & Ors., (1997) 8 SCC 488 lays down that waiting list cannot be used as a perennial source of recruitment for filling up the vacancies not advertised. “ The candidate in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative ”.
(36) Fifthly, any direction by the High Court for appointment of candidates from the waiting list against the de-reserved posts would essentially be inconsistent and in conflict with the laudable object of the maintenance of efficiency of judicial administration.
(37) Sixthly, it may be true that ‘consultation’ with the High Court within the meaning of Articles 233 or 234 is not a ‘casual conversation’ and ordinarily the advice of the High Court shall be binding on the State Government. However, within the framework of our Constitution where separation of power amongst different functionaries of the State is expressly acknowledged, the ‘consultation’ with High Court need not be understood as a ‘command’ to the State
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Government by drawing misconceived parity with an order passed by it in exercise of its judicial powers.
(38) Lastly, we may also take judicial notice of the fact that after the selection process of 2008, the High Court has already filled in some of the posts in Haryana Superior Judicial Service by way of direct recruitment, hence the plea of scarcity of Judicial Officers to shoulder the enormous work-load has already been redressed, though partially.
(39) For the reasons afore-stated, we do not find any merit in this writ petition, which is accordingly dismissed, however, without any order as to costs.
(40) Dasti .
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Dhirinder Chopra
State of Haryana
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court