# JITENDRA KUMAR & ORS v. STATE OF HARYANA & ANR

- **Citation:** [2007] 13 S.C.R. 98
- **Court:** Supreme Court of India
- **Decided:** 2007-12-11
- **Case number:** Civil Appeal No. 5803 C of2007
- **Bench:** S.B. Sinha, Harjit Singh Bedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jitendra-kumar-ors-v-state-of-haryana-anr-22451
- **Pages:** 36

## Headnote

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
E 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 -
F
s. 4 - Punjab Civil Service (Executive Branch) Rules, 1930 -
Administrative Law
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
,_
~
'
~
~-
f
.•·
JITENDRAKUMAR&ORS. v. STATE OF
HARYANA&ANR.
99
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 candidatesappellants 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: 1.1. 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]
1.2. 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
1.3. 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 o

## Text

_Characters 0–39,870 of 69,440. This is a partial read: ask again with offset=39870 for what follows._

A
JITENDRA KUMAR & ORS.
v.
STATE OF HARYANA & ANR.
DECEMBER 11, 2007
B
[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
E 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 -
F
s. 4 - Punjab Civil Service (Executive Branch) Rules, 1930 -
Administrative Law
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
,_
~
'
~
~-
f
.•·
JITENDRAKUMAR&ORS. v. STATE OF
HARYANA&ANR.
99
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 candidatesappellants 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: 1.1. 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]
1.2. 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
1.3. 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 representaC 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
1.4. 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 partyrespondents 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]
1.5. 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
101
HARYANA&ANR.
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
1.6. 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]
1.7. 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]
1.8. 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
F
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]
G
[132 A-CJ
2.1. Section 4 ofHaryana 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-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
JITENDRA KUMAR & ORS. v. STATE OF
103
HARYANA&ANR.
i
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]
B
Cellular Operators Assn. of India and Ors. v. Union of India
and Ors. (2003) 3 SCC 186; Bombay Dyeing and Mfg. Co. Ltd.
(3) v. Bombay Environmental Action Group and Ors. (2006) 3
SCC 434; Sarbananda Sonowal v. Union of India (2007) 1 SCC
174- referred to
c
4. There is no reason as to apply the doctrines of legitimate
expectation and promissory estoppel in the instant case. A
legitimate expectation is not the same thing as an anticipation.
It is distinct and different from a desire and hope. It is based on
a right. It is grounded in the rule of law as requiring regularity, D
predictability and certainty with the Government's dealings with
the public. The doctrine of legitimate expectation operates both
in procedural and substantive matters. [Para 40] [129 A-C]
Chanchal Goyal (Dr.) v. State of Rajasthan (2003) 3 SCC E
485; Union of India v. Hindustan Development Corpn. (1993) 3
SCC 499; Ku/deep Singh v. Govt. of NCT of Delhi (2006) 5 SCC
702- relied on
5.1. The decisions taken by one government in public
F
interest itself cannot be a ground for review thereof at the hands
of the successor government. It is not the government which is
in the seat of the power, matters in this bt'!half, but what matters
is the public interest. [Para 38] (127 G-HJ
State of Karnataka and Anr. v. All India Manufacturers G
Organisation and Ors. (2006) 4 SCC 683- relied on
•
5.2. Whereas, on the one hand, an action on the part of the
State to interfere with the good work done by the previous
government solely on the basis of change in the regime must be
H
104
SUPREMECOURTREPORTS [2007] 13(Addl.)S.C.R.
A deprecated, there cannot however be any doubt whatsoever that
the successor government cannot blink over the illegalities
committed by the previous government. If illegalities have been
committed, the same should be rectified. When there exists a
reasonable apprehension in the mind of the State, having regard
B to the overall situation including the post haste manner in which
actions had been taken, to cause an enquiry to be made and
suspend the process of making appointments till the result of
such enquiry is obtained, such a decision on its part per se
cannot be said to be an act of arbitrariness or unreasonableness.
C (Para 39) (128 E-H)
6. The fact that in some jurisdictions, doctrine of
unreasonableness is giving way t.o doctrine of proportionality is
beyond any dispute. But, the development of law in this field
D could have been applied only if a case was made out. If the
State is right in its contention that the selection process being
in cloud, no appointment can be made, the court by invoking any
doctrine cannot ask the State to do so unless it arrives at a
positive and sdefinite finding that the State's stand is fraught
E with arbitrariness. In the instant case, there is no arbitrariness
in the act of the State. [Para 42) (131 D-F)
Teri Oat Estates (P) Ltd. v. UT, Chandigarh and Ors. (2004)
2 SCC 130; State of UP v. Shea Shanker Lal Srivastava and
Ors. (2006) 3 SCC 276; Bombay Dyeing and Mfg. Co. Ltd. (3) v.
F Bombay Environmental Action Group and Ors. (2006) 3 SCC
434; Indian Airlines Ltd. v. Prabha D. Kanan, (2006) 11 SCC 67;
State of UP v. Shea Shanker Lal Srivastava and Ors. (2006) 3
sec 276-- referred to
G
Administrative law, Ninth Edition, by Sir William Wade--
referred to
7. A constitutional authority like the Public Service
Commission should neither withhold any document nor refuse to
cooperate with the State Vigilance Bureau in the matter of conduct
H
JITENDRAKUMAR&ORS. v. STATE OF
105
HARYANA&ANR. [SINHA,J.]
of an enquiry, as alleged. If the statements made by the A
Commission that the State has for all intent and purport made
it defunct body although no case therefor has been made out
are correct, they have nothing to hide. It would be in the interest
of all concerned including the appellants herein to see that the
enquiry should be completed at an early date. State Government B
is directed to take all steps in this behalf. The Commission is
requested to render all cooperation to the authorities of the
State Vigilance Bureau. [Para 46] [133-B] [132-FJ [133 B-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5803 C
of2007
From the Common final Judgment and Order dated 12.10.2006
of the High Court of Punjab and Haryana at Chandigarh in C.W.P.
Nos. 5437 and 18572/2005 and amended C.W.P. No. 3768/2005.
WITH
C.A. NOs. 5810, 5801, 5802, 5800, 5804, 5805, 5807, 5806,
and 5808 of 2007.
D
Manjit Singh Addi. A.G., Sanjiv Bansal Addi. A.G., P.P. Rao, E
Rakesh Dwivedi, Dr. Rajeev Dhavan, Dr. Abhishek Manu Singhvi,
Raju Ramachandran, Mohan Lal Saggar, S.K. Dholakia, C.K.Sucharita,
K.K. Lahiri Ejaz Maqbool, Keshav Mohan, Taruna Singh, Ashish
Verma, Neeraj Bansal, M.K. Michael, Sanjeev K. Bhardwaj, Ku!
Bharat, Ranbir Singh Yadav, Dr. Ramesh K. Haritash, Dr. Kailash p
Chand Amit Kumar, Pawan Rai, Yash Pal Dhingra, Harikesh Singh,
T.V. George, Balbir Singh Gupta and Meenakshi Arora, with them for
the appearing parties and Respondent-in-Person.
The Judgment of the Court was delivered by
S.B. SINHA, J. Leave granted in all the SLPs.
1. These appeals arise out of a common judgment and order
dated 12.10.2006 passed by a Division Bertch of the Punjab and
Haryana High Court whereby and whereunder the writ petitions filed
G
H
106
SUPREMECOURTREPORTS
[2007] 13(Addl.)S.C.R.
A by the appellants praying inter alia for issuance of a writ of or in the
nature of mandamus directing the respondents to issue letters of
appointments to them on the premise that they had duly been selected
in Harayana Civil Service (HCS) (Executive Branch) and/ or Allied
Service pursuant to or in furtherance of the result declared by the
B Haryana Public Service Commission (for short "the Commission") as
also for quashing of notification dated 13.05.2005 whereby and
whereunder the cadre strength of HCS (Executive Branch) has been
reduced from 300 to 230, were dismissed.
c
D
E
F
G
H
2. State of Haryana sent a requisition to the Commission in or
about December, 2003 for filling up 58 posts in HCS (Executive
Branch) and 44 posts in Allied Services. Pursuant to or in furtherance
of the said requisition received by the Commission, an advertisement
was issued on or about 24.01.2004 notifying that:
(i)
the preliminary examination for the HCS Ex. Br. and the
other Allied Services Examination, 2004 would be held in
May/ June, 2004 at Chandigarh for 58 posts in the "HCS
(Ex. Br.)" and 44 posts in the Allied Services; The number
of posts given against each category is however liable to
variation to any extent either way.
(ii)
The recruitment would be in accordance with the said
'1930 Rules' and the Haryana Civil Services (Executive
Branch) and Allied Services and other Services common/
combined Examination Act, 2002 hereinafter refer as the
'2002 Act' for the sake of brevity;
(iii)
The examination will be conducted in accordance with the
plan and syllabus given in the Brochure for 'H.C c;:. (Ex.
Br.)' andAllied Services examination.
(iv)
The combined competitive examination will comprise of
two successive stages (a) preliminary examin<ltion and (b)
main written examination and viva-voce/ personality tt·~t
for selection to various services and posts.
1'
)
JITENDRA KUMAR & ORS. v. STATE OF
HARYANA&ANR. [SINHA,J.]
107
Pursuant to or in furtherance of the advertisement inviting A
applications, 14,237 candidates responded.
3. lt is not in dispute that the matter relating to recruitment in the
said posts is government by the Haryana Civil Services (Executive
Branch) and Allied Services and Other Services Common/ Combined B
Examination Act, 2002 (Act No. 4 of 2002) (for short "the 2002
Act") and Punjab Civil Service (Executive Branch) Rules, 1930 (for
short "the 1930 Rules") as amended in the year 2002.
The selection process was to take place in several stages, viz.,
holding of preliminary examination so as to prepare a short list of those C
who may be permitted to appear in the main examination followed by
interview. 14,050 candidates including the appellants appeared in the
preliminary examination, on 23.05.2004. 1541 candidates including
the appellants were selected in the main examination. The written
examination was conducted by the Commission in terms of Rule 9(1) D
of the 1930 Rules wherein 1,394 candidates_ appeared.
4. On or about 27.09.2004, the respondent- State ofHaryana
sent requisition to the Commission for filling up of 19 vacancies in
HCS (Executive Branch) by promotion oftb.e in-service candidates in E
accordance with the 1930 Rules. Out of the said vacancies, 8 were
to be filled up from amongst the category of the District Revenue
Officer/ Tehsildars/ Naib Tehsildar (Register A-1), 6 vacancies from
members of Class III Services (Register A-II) and 5 vacancies from
the category of Block Development and Panchayat Officer (Register F
C).
5. lt is not in dispute that w1der Rule 17 of the 1930 Rules, 2/
3rd of the total available vacancies were to be filled up by the direct
recruitment and I/3rd of the total available vacancies were to be filled
up by promotion. It is also not in dispute that on or about 4.10.2004, G
pursuant to the recommendations made by the Commission, Respondent
- State entered the names of 8 officers in Register A-1, 6 officers in
Register A-II and 5 officers in Register C for promotion to the HCS
(Executive Branch).
H
108
SUPREME COURT REPORTS
[2007] 13 (Addi.) S.C.R.
A
6. Results of the main written open competitive examination were
B
announced on 7.12.2004 whereby 292 candidates were declared by
the Commission to have qualified themselves to appear in the vivavoce test. Interviews of the successful candidates were held from
16.12.2004 to 18.12.2004.
7. General Elections of the Hmyana Legislature were announced
in on 17.12.2004. As the Model Code of Conduct became effective
on and from 17.12.2004, the Election Commission in terms of a circular
letter dated 27 .12.2004 imposed a ban on issuance of appointment
C letters to the candidates selected by the Commission without its
permission till the completion of the election process. However, on
30.12.2004, a select list of 102 candidates was published by the
Commission recommending their appointment to the HCS (Executive
Branch) and the Allied Services on the basis of the result of the
D examinations held by it. Admittedly, in view of the ban imposed by the
Election Commission, no offer of appointment was issued. We may,
however, notice that the Chief Secretary of the State of Haryana by
a letter addressed to the Election Commission asked for its permission
to issue the appointment letters. There is nothing on record to show
E that the Election Commission responded thereto one way or the other.
8. Before proceeding further, we may notice that in terms of the
1930 Rules, Review Committee determined the cadre strength. In the
year 1990, the cadre strength was revised from 200 to 240 posts. No
cadre review was effected in the years 1993 and 1996. On or about
F 20. l 0.1999, the cadre strength was fixed at 240. However, in the year
2002, due to deletion of 26 posts from the cadre, the total cadre
strength· was determined at 223.
A representation thereafter was made by the Haryana Civil
G Service (Executive Branch) Officer's Association (Association) for
increase in the cadre strength by increasing 48 posts which found
favour with the Committee. The Con-.mittee submitted its report opining
that the total strength of the cadre should be fixed at 271. According
to the State, the cadre strength was inflated on the basis of the
H representation made by the Association as there was no actual need
,.
therefor.
JITENDRAKUMAR&ORS. v. STATE OF
HARYANA&ANR. [SINHA, J.]
109
9. In or about January, 2005, an advertisement was issued by
the Commission intimating holding of combined/ common examination
A
for appointment to 15 more posts in HCS (Executive Branch) and 42
posts in the Allied Services and inviting applications therefor from the B
eligible candidates.
10. Elections for the Haryana State Legislative Assembly were
admittedly held on 3.02.2005.
On or about 13.02.2005, the State Government requested the C
Election Commission to reconsider its instructions in regard to the ban
imposed on making regular appointment as the selection process had
commenced much before the announcement of election schedule.
11. Some writ petitions were filed before the Punjab and Haryana
High Court complaining undue delay on the part of the State in issuing D
the offers of appointment. The new Government took over on
5.03.2005.
12. By a notification dated 13.05.2005, the cadre strength was
reduced to 230.
After issuance of the aforementioned notification dated
13.05.2005, writ petitions filed in the High Court were suitably
amended.
E
The said writ petitions have been dismissed by reason of the F
impugned judgment.
13. Before we advert to the rival contentions raised by the
parties, it may be placed on record that during pendency of these
Special Leave Petitions, the State Government directed filling up of the
27 posts of Deputy Superintendent of Police by promotion including G
8 vacancies for which the appellants were selected by an order dated
21.02.2007. Similar orders of promotion were passed to the post of
Deputy Superintendent of Police on 12/13.03.2007 and 11 Excise and
Taxation Officers on 3.04.2005.
H
110
SUPREME COURT REPORTS
[2007] 13 (Addl.) S.C.R.
A
14. Mr. P.P. Rao, Mr. Rakesh Dwivedi, Mr. L. Nageshwara
B
c
D
E
F
G
H
Rao and Dr. Rajeev Dhavan, learned senior counsel appearing on
behalf of the appellants, submitted as under:
(i)
The Review Committee for determining the cadre
strength having made recommendations, the impugned
notification reducing the same could not have been issued.
(ii)
The High Court failed to consider that even assuming that
the State Government had the requisite power to reduce
the cadre strength ofHCS (Executive Branch) from 300
to 230, reliefs prayed for could be granted as:
(a)
the cadre strength of the Allied Service to which 44
candidates were selected was not disturbed;
"b)
l .
the impugned reduction of the cadre strength from
300 to 230 cannot affect in any manner the selections
made to 34 (out of 58 posts) in the HCS (Executive
Branch);
(c)
in addition even after the reduction in the cadre
strength, 10 vacancies were available in the HCS
(Executive Branch);
(iii)
The post haste reduction in the cadre strength without
following the due procedure was apparently colourable
exercise of power by the government as it was determined
not to appoint under any circumstance the candidates
selected by the "Commission" as it was constituted by the
previous government.
(iv)
Even if the notification dated 13.05.2005 is valid as the
selection process has not been held to be a tainted or.e
and 34 posts in HCS (Executive Branch) and 44 posts in
Allied Services being still vacant, there is absolutely no
reason as to why the admitted vacancies should not be
directed to be filled up.
1
JITENDRAKUMAR&ORS. v. STATE OF
111
HARYANA&ANR. [SINHA, J.]
(v)
Promotion to the post of HCS (Executive Branch) and A
f
Allied Services having been given and as the Rules provided
for quota and rota, the appointments in the direct recruitment
. should be made to fill the requirements of the Rules.
(vi)
The findings of the High Court that a vigilance enquiry is B
pending, by itself cannot take away the legal right of the
appellants.
(vii) Assuming that the appellants do not have any legal right to
be appointed, the power of the State being coupled with
duty and as the action of the respondents must be supported c
by reasons and/ or bona fide on their part; in respect
whereof there being no proof, the impugned judgment
cannot be sustained.
(viii) For the purpose of filling up of the vacancies, the State D
should have proceeded to apply the doctrine of 'least
invasion' in the instant case.
(ix) The High Court committed a serious error insofar as it
failed to take into consideration that the doctrine of
'legitimate expectation' of the selectees as also the doctrine E
of 'promissory estoppel' confer legal rights upon the
appellants to be appointed.
(x)
The High Court committed a serious error insofar as it
failed to take into consideration that a successor government F
cannot take recourse to regime revenge an:d undo all acts
which are otherwise valid inasmuch as the decision taken
by one government cannot be nullified only because there
is a change in the government.
15. Mr. Raju Ramachandran and Dr. Abhishek Manu Singhvi, G
learned senior counsel appearing on behalf of the State ofHaryana, on
the other hand, submii1ed as under:
(i)
Undue haste with which the cadre strength has been inflated
by the previous regime was sufficient for the State to issue H
112
A
B
SUPREME COURT REPORTS
[2007] B(Addl.) S.C.R.
the notification dated 13.05.2005.
(ii)
The legal position being settled that the selected candidates
does not have any legal right subject, of course, to nonarbitrary action on the part of the appointing autho1ity the
High Court cannot be said to have committed any error in
passing the impugned judgment..
(lii)
The very fact that the entire selection process was under
a cloud, the State could not have made any appointment
unless the cloud itself was clear. As an enquiry in regard
C
to the selection process by the State Vigilance Bureau at
the behest of the High Court in a writ petition filed by the
unselected candidates is pending, the State without obtaining
any report in this behalf did not cancel the selection process.
D
E
F
G
l-I
(iv) As the selectees have no legal right, the doctiine oflegitimate
expectation or promissory estoppel cannot have any
application as their non-appointments are supported by
1
valid reasons and in any event the selectees did not alter
their position pursuant to any promise made by the State
Government.
(v)
The question of taking recourse to regime revenge by the
State Government does not arise as any government is
duty bound to correct the illegalities committed by the
previous regime and in regard thereto it cannot turn blind.
It only suspended the appointments pending enquiry.
(vi) The State has furnished enough materials to satisfy the
tests of judicial review. As the Review Committee was
required to determine the cadre strength only upon taking
into consideration the need of the State, its
recommendations pursuant to the representation of the
Association as also the decision of the Giief Minister must
be held to be wholly irrelevant.
(vii) The matter relating to recruitment of the officers being
· JITENDRAKUMAR&ORS. v. STATE OF
113
HARYANA&ANR. [SINHA, J.]
governed by Act No. 4 of2002, as a com.bined examination A
was to be held, no appointment could be made either in
the post of HCS (Executive Branch) or in the Allied
Services.
(viii) Upon consideration of the materials on record, the High B
Court has arrived at a finding that efficacy of earlier
selection is doubted which should not be interfered with by
this Court.
(ix) Although promotion had been effected after delivery of the
judgment of the High Court, but they have been made only C
against the vacancies which are within the promotion quota
and any promotion which had been made on the basis of
earlier inflated strength, notice to show cause had already
been issued. No appointment has been made from the
posts meant to be filled up by the direct recruits.
D
16. Mr. S.K. Dholakia, learned senior counsel appearing on
behalf of the Commission, submitted that it is incorrect to contend that
irregularity has been committed by the Chairman and Members of the
Public Service Commission in making the recommendations for E
recruitment. According to the learned counsel, the Commission has
complied with the requirements of the Rules scrupulously and all steps
have been taken within the time schedule prescribed by the statute.
17. The Legislature of the State of Haryana enacted the 2002
Act to provide for holding of common/ combined examination of direct F
recruitment to HCS (Executive Branch) and Allied Services and other
services.
Section 2(i) of the 2002 Act defines "Allied Services" to mean
the services shown in Appendix A thereof.
G
"Other Services" has been defined in Section 2(v) to mean ''the
service/ posts, recruitment to which is made by holding common/
combined examination, but does not include the service/ posts shown
in Appendix A".
H
114
SUPREMECOURTREPORTS
[2007] 13(Addl.)S.C.R.
A
"Direct Recruitment" has been defined in Section 2(vii) to mean
recruitment by open competition but does not include (a) appointment
\-
by promotion; or (b) appointment by transfer of an officer already in
the service of any State Government of the Government oflndia.
B
Section 4 of the 2002 Act provides that no appointment shall be
made to any posts or service to which the 2002 Act applies beyond
the number of post advertised. Sub-section ( 4) of Section 4 reads
1hus:
"(4) The State Government may offer appointment to the
c
candidates to Haryana Civil Service (Executive Branch) and Allied
Services or Other Services, as the case may be, to the extent of
number of advertised posts only. However, no candidate shall be
offered appointment even to 1he extent of number of advertised
posts, if his name is not recommended by the Commission or if
D
he does not fulfill the eligibility condition laid down by 1he State
Government for appointment to that service/ post by way of
service rules, regulation of executive instruction, as the case may
be."
E
18. Appendix A appended to the 2002 Act provides for the
following categories in Allied Services:
"l. Excise and Taxation Officer
2.
District Food and Supplies Controller
F
3.
'N Class Tehsildar
4.
Assistant Registrar, Co-operative Societies
5.
Assistant Excise and Taxation Officer
G
6.
Block Development and Panchayat Officer
7.
Traffic Manager
8.
District Food and Supplies Officer
•
9.
H
Assistant Employment Officer"
j
JITENDRA KUMAR & ORS. v. STATE OF
HARYANA&ANR. [SINHA,J.]
115
Pursuant to or in furtherance of the provisions of the 2002 Act, A
an advertisement was issued on 24.01.2004 showing 58 vacancies in
the post ofHCS (Executive Branch), 8 vacancies in the post ofDSP,
21 vacancies in the post ofF.T.O., 1 vacancy in the post of A Class
Tehsildar, 1 vacancy in the post of Assistant Registrar Coop. Societies
and 13 vacancies in the post ofB.D.P.O.
B
19. In the brochure published for the said purpose, it was inter
alia stated:
"Those declared to have qualified the Preliminary Examination
shall submit in their own hand a fresh application form for C
admission to the Main Examination which will be obtained
separately after clearing/ passing the Preliminary Examination.
While filling up the application form for Main Examination,
candidate may apply for appointment to all or any of the service/
services/ posts as advertised by the Commission and he will be D
considered for the service/ post he applies for. It is made clear
that in case no order of preference is given in the application
meant for Main Examination, the appointment shall be made
strictly in order of merit in the following warrant of precedence
to the various departments ... "
E
20. Indisputably, the matter relating to the recruitment is governed
by the 1930 Rules. Rule 3 of the 1930 Rules provides for the strength
and composition of the HCS (Executive Branch) cadre empowering
the Government to determine the same from time to time. It enjoins a F
duty upon the government to make alterations, if it so feels, at the
interval of every three years upon examining the strength and composition
thereof.
Rule 5 of the 1930 Rules provides for appointment of the members
of the service from time to time as required from amongst the accepted G
candidates whose names had been duly entered in accordance with
the 1930 Rules in one or other of the registers of Accepted Candidates
to be maintained thereunder.
Rule 6 provides for the registers which are of the following H
116
SUPREME COURT REPORTS
[2007] 13 (Addi.) S.C.R.
A description:
"(b) Register A-1 of"District Revenue Officer, Tahsildars and
Naib Tahsildars accepted as candidates.
(c) Register A-II of members of Class III Service accepted as
B
candidates.
c
(d) Register B of person accepted as candidates on the result
of a competitive examination; and
( e) Register E of Block Development and Panchayat Officers."
Register B was to be maintained for the direct recruits.
Rules 7 and 8 of the 1930 Rules provide for selection of
candidates for the purpose of entering their names in Register A-1 and
Register A-Il. Rule 9 provides for holding of competitive examination
D for selection of candidates for entering the names of successful candidates
in Register B in the following terms:
"9. Competitive examination to be held yearly for selection of
candidates for Register B - \1) A competitive examination
E
hereinafter called ''the examination for the post of Haryana Civil
Sen:ice (Executive Branch) and other Allied Services" the Scheme
of which is given below, shall be held at any place in Haryana
each year as per Schedule given in Annexure - III for the purpose
of selection by competition of as many candidates for the Service
F
as the Governor of Haryana may detennine ... "
Rule 10 of the 1930 Rules provides for admission of candidates
to the examination. Rule 11 provides for selection of candidates for
Register B whereas Rule 12 provides for selection of candidates for
Register C. Rwe 17 provides for appointment of registered candidates
G to service in the following terms:
H
"From Register B
From Register A-I
From Register B
two candidates
one candidate
two candidates
JITENDRAKUMAR&ORS. v. STATE OF
HARYANA&ANR. [SINHA, J.]
From Register A-II
one candidate
From Register B
three candidates
From Register A-I
one candidate
From Register B
two candidates
From Register A-II
one candidate
From Register C
one candidate
From Register B
three candidates
From Register A-I
one candidate
From Register B
two candidates
From Register A-II
one candidate
From Register B
two candidates
From Register A-I
one candidate
From Register B
three candidates
From Register C
one candidate
117
and thereafter in the same rotation beginning again from
Register B."
A
B
c
·n
21. The basic fact of the matter in regard to issuance of E
advertisement, holding of examination and publication of results of the
written examination as also holding of interviews is not in dispute. It
has also not been disputed that the names of appellants herein find
place in the select list.
F
The power of the State to determine the cadre strength is also
•
not in dispute. The State before issuance of the notification dated
13.05.2005 has taken into consideration the relevant facts. The history
of determination of the cadre strength from 1993 would clearly go to
show that prior to issuance of impugned notification, the State has G
taken into consideration all the relevant facts. Although there does not
exist any statutory rule in regard to the matter of determination of the
cadre strength, there exists some guidelines. A formula has been laid
down for determining the cadre strength which read as under:
H
A
118
SUPREME COURT REPORTS
[2007] 13 (Addl.) S.C.R.
"Permanent Cadre Strength:
(a) General Administration posts:
(b) Posts in other Departments:
(c) Subtract 10 posts of SDO (C) to be manned by Junior
B
Scale IAS: i.e.
( d) Permanent Cadre Strength:
(e) Deputation Reserve@ 25%
(f)
Leave Reserve @ 10%
C
(g) Training Reserve @ 10%
(h) Addl. for unforeseen demands.
Total of d, e, f, g and his the Cadre Strength."
22. In the year 1990, the cadre strength was revised from 200 to
D 240 posts having regard to the following position:
"(a) General Administration posts:
91
(b) Posts in other Departments:
71
(c) Subtract 10 posts of SDO (C)
E
to be manned by Junior Scale IAS: i.e
(-)
10
(d) Permanent Cadre Strength:
158
(e) Deputation Reserve @ 25%
(+)
40
(f)
Leave Reserve @ 10%
(+)
16
F
(g) Training Reserve @ 10%
(+)
16
(h) Addi. for unforeseen demands.
(+)
10
Total
240"
G
23. Although a review was to be made after three years, as per
Rule 3 of the 1930 Rules, no cadre review was effected in the years
199 3 and 1996. On or about 20 .10 .1999, the cadre strength was
fixed on the same line as was done in 1990.
24. Again the process began in 2002. Upon taking into
H
t·
JITENDRA KUMAR & ORS. v. STATE OF
HARYANA&ANR. [SINHA,J.]
119
consideration the suggestions given by various authorities, A
recommendation for deletion of 26 posts was made by the Committee
from the cadre, as a result whereof permanent strength came to be
140 posts and upon application of the formula, as noticed hereinbefore,
the total cadre strength came to 223. A representation thereafter was
made by the Association for increase in the cadre strength by 48 which B
allegedly found favour with the Committee. The Committee submitted
its report opining that the total strength of the cadre should be at 271.
According to the State, the cadre strength was inflated on the basis of
the representation made by the Association and there was no actual
need therefor. Concededly, again the Chief Minister passed an order C
on 20.10.2003 to add 20 more posts in the cadre strength note sheet
the relevant part whereof is as under:
"CM has seen and ordered that there is no need to subtract the
posts of SDOs. Even if the posts are in HCS cadre the officers D
from junior scale ofIAS can be posted in higher scale.