IN THE HIGH COURT OF PUNJAB AND
HARYANA AT CHANDIGARH.
LPA No.96 of 2009(O&M)
Date of decision: 1.9.2009
Mohan Lal and others
-----Appellants
Vs.
State of Haryana and others
-----Respondents
LPA No.103 of 2009(O&M)
Pardeep Kumar and others
-----Appellants
Vs.
State of Haryana and others
-----Respondents
LPA No.118 of 2009(O&M)
Ravish Kumar and others
-----Appellants
Vs.
State of Haryana and others
-----Respondents
LPA No.119 of 2009(O&M)
Satender and another
-----Appellants
Vs.
State of Haryana and others
-----Respondents
LPA No.137 of 2009(O&M)
Bijender Singh and another
-----Appellants
Vs.
State of Haryana and others
-----Respondents
LPA No.96 of 2009 and connected appeals 2
LPA No.258 of 2009(O&M)
Jaswant Singh and others
-----Appellants
Vs.
State of Haryana and others
-----Respondents
LPA No.259 of 2009(O&M)
Sarabjit Kaur and others
-----Appellants
Vs.
State of Haryana and others
-----Respondents
LPA No.331 of 2009(O&M)
Sandeep Hooda and others
-----Appellants
Vs.
State of Haryana and others
-----Respondents
CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. Puneet Bali, Advocate for the appellants
in LPA Nos.96, 103, 118, 119, 137 of 2009.
Mr.R.K.Malik, Sr.Advocate
with Mr. Yashdeep Singh, Advocate for the
appellants in LPA Nos.258 and 259 of 2009.
Mr. Neeraj Kumar, Advocate for the appellants
in LPA No.331 of 2009.
Mr. Rameshwar Malik, Additional Advocate
General, Haryana for the State.
-----
Adarsh Kumar Goel,J.
LPA No.96 of 2009 and connected appeals 3
1. This order will dispose of Letters Patent
Appeal Nos.96, 103, 118, 119, 137, 258, 259 and 331 of
2009, which have been preferred against judgment of
learned Single Judge dismissing a group of writ
petitions against orders of termination from service on
the ground of abolition of posts and on the ground that
appointments were illegal. LPA No.96 of 2009 has been
preferred by 12 persons and total number of appellants
in all the eight appeals is 43.
2. Advertisement dated 7.8.2004 was issued by
the Haryana Staff Selection Commission inviting
applications for 80 posts of Sub inspectors of Police in
Haryana Police from the eligible candidates. The
procedure for selection was written test followed by
interview. After the appellants qualified the written test,
they were called for interview and finally, letter of
appointment dated 12.12.2004 or thereabout were given
to them. In pursuance thereof, the appellants joined
service and underwent training but after about six
months, vide letters dated 5.7.2005 and around the said
LPA No.96 of 2009 and connected appeals 4
date, appointments were rescinded on the ground that
Haryana State Industrial Security Force Act, 2003 was
repealed and Haryana State Industrial Security Force
(HSISF) Battalions was disbanded w.e.f 29.6.2005.
3. Aggrieved thereby, the writ petitions were
filed in this Court and were disposed of on different
dates including by order dated 8.8.2005 on the short
ground that no Show Cause Notice had been given
before passing of the impugned order. Liberty was given
to pass a fresh order. Accordingly, vide order dated
3.10.2005 or other similar orders, the services of the
appellants were again dispensed with by repeating the
same ground. It was mentioned that posts of Sub
Inspectors were sanctioned in the HSISF in pursuance of
sanction granted by Central Government vide letter
dated 7.10.2003. The concept of appointments in HSISF
was that it did not cast any financial burden on the State
exchequer as expenditure incurred by the State was
reimbursed in the form of user charges recovered from
the Industrial houses for whom the security was
LPA No.96 of 2009 and connected appeals 5
deployed. Though, requisition was for Sub Inspectors in
HSISF, the Staff Selection Commission made a mistake
in mentioning that appointments were to the posts of
Sub Inspectors in Haryana Police as per advertisement
dated 7.8.2004 and for the same reason, there was a
mistake in the letters of appointment and in the giving of
training to the appointees. This mistake was noticed and
the order was passed, after disbanding the HSISF.
4. In the second round of litigation challenging
order dated 3.10.2005 and other similar orders,
contention raised by the aggrieved terminated
employees was that their appointments were for
Haryana Police Force under the provisions of the Punjab
Police Rules, 1934 and the development of disbanding
of HSISF could not be a ground to dispense with their
services. Real reason was that they were appointed by
the previous government.
5. The contention was opposed by filing reply
submitting that the posts which were advertised and to
which appointments were made, were infact meant for
LPA No.96 of 2009 and connected appeals 6
HSISF cadre, though by mistake in the advertisement as
well as in the appointment letters, it was mentioned that
the appointments were for Haryana Police Force. In
doing so, there was a fraud to appoint pre-selected
candidates. The State Government had appointed a
Commission of Enquiry headed by a former Judge on
following terms of reference:-
“1. Whether the Legislature was misled on the
issue of demand and necessity for the creation
of Haryana State Industrial Security Force.
2. Whether circumstances prevailed upon the
Government to hurriedly go through the
recruitment of Haryana State Industrial
Security Force even without notifying the
commencement of the Haryana State
Industrial Security Force Act, 2003.
3. Whether any financial loss has been caused
to the State Exchequer due to acts of omission
and commission. If so, the persons responsible
for the same.
LPA No.96 of 2009 and connected appeals 7
4.Whether any extraneous factors have played
role in the selection/recruitment of the
candidates of Haryana State Industrial
Security Force, if so, persons responsible for
the same.”
The Commission submitted its report dated 29.1.2007.
The Commission observed that creation of Haryana
State Industrial Security Force was without any
occasion. It was further observed that recruitment was
made in a hurry. Financial loss was caused by putting
unnecessary burden on the State exchequer by recruiting
Sub Inspectors. Persons responsible for the above acts
were the then Chief Minister, the then Finance Minister
and Director General of Police. However, it was held
that no extraneous factor was suggested against any
person. Elections to the State Assembly were announced
on 17.12.2004 and the Model Code of Conduct came
into force. Appointments were made in violation of the
Code of Conduct. The list of candidates was received on
18.12.2004. Reliance was also placed on judgment of
LPA No.96 of 2009 and connected appeals 8
this Court dated 9.1.2006 in CWP No.248 of 2006
(Sanjay Kumar and others v. State of Haryana and
others) upholding order of termination of Constables
recruited for HSISF, which force was later disbanded.
In the said judgment, it was observed that in absence of
any requirement for employment by the State,
appointments were illegal and could be cancelled.
6. The writ petitions came up for hearing on
18.10.2006 when it was directed that a detailed affidavit
be filed disclosing the number of vacancies of Sub
Inspectors of Haryana Police existing on the date of
advertisement dated 7.8.2004 and number of vacancies
in October 2005 when order terminating services of
appellants was passed. Accordingly, an affidavit dated
8.10.2006 was filed by the Principal Secretary to the
Government of Haryana, Home Department, inter-alia,
stating that there were only 9 vacancies of Sub
Inspectors as on 7.8.2004 but as in October 2005, 62
posts meant for direct recruitment under Rule 12.3 of
the Police Rules were available. Requisition sent to the
LPA No.96 of 2009 and connected appeals 9
Staff Selection Commission was for 80 posts for the
HSISF and India Reserve Battalion out of which seven
posts were for Sub Inspectors in Haryana Police. The
Staff Selection Commission wrongly advertised posts
for Sub Inspectors for Haryana Police. Clarification was
sought from the Staff Selection Commission on
6.11.2006 to which the said Commission vide letter
dated 8.11.2006 replied that though, requisition received
was for appointments to State Industrial Security Force
and India Reserve Battalions, apart from seven posts of
Sub Inspectors in Police Force, in the advertisement,
inadvertently, all the posts were mentioned as being for
Haryana Police. Thereafter on 22.11.2006, further
direction was issued by this Court requiring explanation
for the variance in different affidavits about the vacancy
position. As per affidavits filed by various Inspector
Generals of Police in the State under the direction of this
Court, the figure of vacancies of Sub Inspectors in the
Haryana Police was worked out to be 92 on the date of
appointment for the direct quota while as per affidavit of
LPA No.96 of 2009 and connected appeals 10
the Home Secretary, number was different. In further
affidavit dated 12.12.2006, clear and precise figure of
vacancies is not mentioned.
7. The learned Single Judge held that though
seven of the writ petitioners were entitled to be
reinstated on the ground that they had resigned from
regular government service for applying for these jobs,
there was no illegality in termination of services of the
appellants. Reliance was placed on judgment of this
Court in Sanjay Kumar (supra).
8. We have heard learned counsel for the parties.
9. Learned counsel for the appellants submitted
that there was no scope for any mistake as pleaded. The
advertisement was clear and specific. After holding
written test, interview and selection, not only
appointment letters were given, training for about six
months was also imparted. In any case, the appellants
were not party to any such mistake and even as per the
report of the Commission of Enquiry, there was no
extraneous consideration in their appointments. Posts
were available on the date of appointment as well as on
LPA No.96 of 2009 and connected appeals 11
the date of passing of order of termination. The said
vacancies were sought to be filled up by fresh
advertisement, after terminating services of the
appellants. Advertisement notifying 100 vacancies was
placed on record vide C.M.No.19548 of 2007 as
mentioned in para 18 of LPA No.96 of 2009. There was
no justification for passing the order of termination. Plea
of Model Code of Conduct could also not be a ground to
justify the termination of services of appellants. The
object of Model Code is to regulate the conduct of
persons contesting elections. Violation thereof may be a
ground to take any action by the Election Commission
but will not per se invalidate the appointments. In any
case, the appointments were not terminated immediately
after election. Once appointments were openly
advertised and made, posts were available, appointees
were qualified and were duly selected, they had not
committed any misconduct or fraud, the same could not
be annulled. In such a case, concept of estoppel was
attracted. Learned counsel for the appellants has relied
LPA No.96 of 2009 and connected appeals 12
upon following judgments in support of his
submissions:-
i) H.C.Puttaswamy and To submit that appointment
others v. The Hon'ble having been made,
Chief Justice of termination was not called
Karnataka High Court, for if vacancy was
Bangalore and others, available.
AIR 1991 SC 295, Para 13.
ii) Director S.C.T.I. for To submit that even if there
Med. Sci. and Tech. and was no right to seek
another v. appointment against a
M.Pushkaran,AIR 2008 vacancy, there should be
SC 559 some reason for not giving
appointment.
iii) State of Punjab and To submit that after the
others v. Harcharan election, the selected
Singh and others, Civil persons could not be
Appeal No.3521 of 2006, denied appointment on the
decided on 7.2.2007. ground of Model Code of
Conduct.
10. Learned counsel for the State supported the
impugned judgment by submitting that the State had
absolute right to abolish the posts and that appointments
having been made for HSISF and the said force having
been disbanded, orders of termination were fully
justified. Learned counsel for the State has relied upon
following judgments in support of his submissions:-
LPA No.96 of 2009 and connected appeals 13 i) M.Ramanatha Pillai v. To submit that abolition of The State of Kerala and posts was exercise of another, (1973) 2 SCC sovereign power and was 650; not hit by principle of estoppel. ii) State of Haryana v. Shri Des Raj Sangar and another,(1976) 2 SCC 844; iii) Rajendra and others v. State of Rajasthan and others, (1999) 2 SCC 317; iv) Avas Vikas Sansthan and another v. Avas Vikas Sansthan Engineers Assn. and others, (2006) 4 SCC 132; v)All India ITDC Workers' Union and others v. ITDC and others, (2006) 10 SCC 66. vi) State of Haryana and others v. Navneet Verma, (2008) 2 SCC 65. LPA No.96 of 2009 and connected appeals 14
vii) Hoshiar Singh v. To submit that appointment
State of Haryana and beyond advertised posts
others, 1993 Supp (4) SCC was not permissible.
377.
viii)Virender Singh Hooda and others v. State of Haryana and another, (2004) 12 SCC 588. ix) Jitendra Kumar and others v. State of Haryana and another, (2008) 2 SCC 161.
x) P.V.Jagannath Rao v. To submit that exercise of
State of Orissa, AIR 1969 power for a purpose not
SC 215 authorized by law was
without jurisdiction.
11. The question which arises for consideration is
whether the impugned order of termination could be
upheld on the ground that requisition by the
State was for Industrial Security Force and not for the
Police Force and the Industrial Security Force stood
disbanded.
12. Having duly considered the rival submissions,
we are of the opinion that appointments having been
made in pursuance of an open advertisement for posts
of Sub Inspectors in Haryana Police by following the
LPA No.96 of 2009 and connected appeals 15
procedure of written test and interview and vacancies
for the said posts being available, the persons appointed
who had also undergone training could not be thrown
out on the ground of disbanding of the Industrial
Security Force. It is not the case of the State that the
selection process was fraudulent or that the appellants
are not eligible or were not qualified. As regards the
Commission of Enquiry, there is no finding of
extraneous consideration. In any case, the posts of Sub
Inspectors in Police also being available, merely because
Industrial Security Force was disbanded, could not by
itself be a ground to terminate services of the appellants.
The judgment in Sanjay Kumar (supra) is
distinguishable as in the advertisement for the posts of
Constables, the recruitment was for the Industrial
Security Force while in the present case, advertisement
was for police force.
13. We may now refer to the judgments relied
upon by learned counsel for the parties.
LPA No.96 of 2009 and connected appeals 16
14. In HC Puttaswamy (supra), it was observed
that the appointment having been made, hardship in
passing order of termination ought to be taken into
account even if there was any irregularity. In
M.Pushkaran (supra), it was observed that even if there
was no right to seek appointment, there should be valid
reason for not giving appointment to a person duly
selected. In Harcharan Singh (supra), it was
observed that after the election, plea of Model Code of
Conduct did not survive.
15. We need not discuss the judgments in greater
detail in view of our finding that decision to terminate
only on the ground that Industrial Security Force was
disbanded, was not valid.
16. Coming now to the judgments relied upon by
learned counsel for the State, we hold that no doubt it
was a matter of administrative policy to create or abolish
posts, the said judgments are not applicable to the
present case. Even if HSISF was disbanded, the
appointment and selection of the appellants was not for
LPA No.96 of 2009 and connected appeals 17
the said posts. We are not concerned with the validity of
decision of the authority regarding the said posts but to
the termination of the appellants who were never
appointed to the said posts but to the police force. As
regards judgments dealing with the question of there
being no right to posts which were not advertised, the
posts in question were duly advertised and appointment
of the appellants was against the advertised posts. The
judgments are, thus, distinguishable.
17. The question has, thus, to be answered in
favour of the appellants and against the State. The
impugned orders are liable to be set aside. Learned
counsel for the appellants fairly stated that in case of
reinstatement, the appellants will not insist on financial
benefits but only continuity of service.
18. Accordingly, these appeals are allowed, the
impugned orders are set aside and the State is directed
to pass a fresh order in accordance with law within one
month from the date of receipt of a copy of this order.
LPA No.96 of 2009 and connected appeals 18
(Adarsh Kumar Goel)
Judge
September 1, 2009 (Daya Chaudhary)
'gs' Judge