Holding

The Court held that the HPSC lacked authority to list Irrigation vacancies without a requisition, but the Government could not arbitrarily refuse to fill those vacancies for over a decade; consequently, it directed the Government to fill at least half the vacancies within a year, without ordering the finalisation of the 1985 selection.

Summary

The Haryana Public Service Commission (HPSC) issued a 1985 notification for recruitment of Assistant Executive Engineers (AEE) in all three wings of the Public Works Department, including the Irrigation branch, even though the State Government had not sent a requisition for the Irrigation vacancies. No candidates were selected for the Irrigation posts because the requisition never arrived. The appellants, who were not selected, challenged the Government’s refusal to send a requisition, arguing that the cadre strength for AEE in Irrigation was fixed at 49 with 44 vacancies and that the Rules created a promotion quota that the Government could not ignore. They also contended that the HPSC’s imposition of a 65% minimum mark for interview, higher than the 50% prescribed, violated the Rules. The Supreme Court held that the HPSC had no authority to list Irrigation vacancies without a requisition, but the Government could not arbitrarily withhold filling those vacancies for over a decade without strong reasons. The Court therefore directed the Government to fill at least half of the vacant AEE posts in the Irrigation branch within one year, while refusing to order the finalisation of the 1985 selection. The appeals were allowed in part.

Issues considered

The Haryana Public Service Commission's authority to include Irrigation branch vacancies in its recruitment notification without a requisition from the Government.
Whether the State Government is legally bound to issue a requisition and fill the Assistant Executive Engineer vacancies in the Irrigation branch when the cadre strength and promotion quota are fixed by the Rules.
Whether the HPSC's requirement of a 65% minimum score for interview, exceeding the 50% prescribed in the Rules, is ultra vires.
Whether candidates who appeared for the 1985 selection acquire any legal right to appointment or to compel the Commission or Government to appoint them.
Whether the Court can direct the Government to fill the vacancies and/or order the finalisation of the 1985 selection process.

Subjects

recruitmentpublic service commissioncadre strengthvacancy fillingdirect recruitmentpromotion quotaselection procedureminimum marksrequisitionHaryanaAssistant Executive EngineerIrrigation branch

Judgment

PARVEEN JINDAL AND ORS. ETC. ETC. A
v.
STATE OF HARYANA AND ORS.

MARCH 16, 1993

[B.P. JEEVAN REDDY AND N. VENKATACHALA, JJ.] a-

HO!Jlana Se1Vice of Engineers Class-IP. W.D. (Irrigation Branch) Rules,
1964: Rules 5(2), 7(2)-First proviso.

Haryana Se1Vice of Engineers Class-II P. W.D. (Irrigation Brqnch) C
Rules, 1970:

Service Law-Power of employer to fill up posts-Cadre-Strength
of-Fixed by Rules-But posts not filled for a long time-Held where strength
of cadre is fu:ed by Ru/es-Government is not justified in not filling up the
posts for a very long time except for very strong and good reasons-Directions D
to State to fill up the posts issued.

State Public Se1Vice Commission--Power to notify vacancies-Com-
mission has no authority to notify vacancies wiltout requisition from Govern-
ment-Only appointing authority viz. Government is competent to make E
requisition to Commission.

-
SelVice Law-Selection-Written test and intelView-Prescription of
qualifying marks for inte1View--Obtaining ofprescribed minimum marks does
not create a right to be called for inte1View-Commission can limit number
of candidates to be called for inte1View-Also mere appearance by candidate F
at selection does not clothe them with right to selection.

The Public Works Department of Government of Haryana consists
of three wings viz., Irrigation, Roads and Buildings and Public Health.
The Engineering Service in the Irrigation Branch comprises both Class-I G
service-consisting of Assistant Executive Engineers,. Executive Engineers
and Superintending Engineers - and Class-II service including Assistant
Engineers. While the Assistant Executive Engineers are recruited by direct
recruitment only, the Executive Engineers are recruitea by (i) direct
recruitment; (ii) by transfer; (iii) by promotion from Class-II service. The
cadre strength of Assistant Engineers, fixed under the Rules is very large H
3$
354 SUPREME COURT REPORTS {1993] 2 S.C.R.

A as compared to the cadre strength of Assistant Executive Engineers. For
the purposes of promotion to Executi~e Engineers both Assistant Execu-
tive Engineers and Assistant Engineers are eligible for which inter-se quota
is fixed under the Rules.

The Haryana Public Service Commission issued a uotiftcation in
B 1985 inviting applications for selection to the posts of Assistant Executive
Engineers for all the three wings of the P.W.D. Although the requisition
~ -
from the Government was to select Assistant Executive Engineers only for
two wings viz. Public Health apd Buildings and Roads yet the Commission
notified the vacancies with respect to Irrigation Branch also stating that
c posts in the said category are also likely to be filled from the snitable
candidates from this very advertisement after the receipt of demand from
the Government. On the basis of written test and interview selections were
made for Public Health and Buildings and Roads wings but no selections
were made for the Irrigation wing because even by the date of finalisation
""' -
of selections, no requisition or demand had come from the Government.
D
The appellants, who were not selected, filed writ petitions in the
Punjab and Haryana High Court for a direction to respondents to fill np
vacancies of Assistant Executive Engineers and others falling to the quota
of direct recruits from amongst the applicants who had applied in pur-
E suance to the advertisement and for a further direction to the State of
~
Haryana to send requisition to the Commission to fill np all vacancies
which are meant for direct recruits. The High Court dimissed all the

-
petitions.

F In appeals to this Court it was contended on b"half of the appellants
that (1) the Government acted arbitrarily in not sending the requisition,
inspite of the fact that vacancies in Irrigation Branch existed for a number ~
of years; (2) when the rules created a particular category and the cadre
strength was also fixed therefor and more particularly when a quota was
reserved for them ih the channel of promotion to the category of Executive
G Engineers, it was not open to the Government to nullify the spirit and
object behind the Rules by refusing to make appointment to the said
category; (3) the procedure adopted by the Haryana Public Service Com-
~-
mission was contrary to Rules because under the Rules a candidate
obtaining SO per cent marks in the written test is entitled to be called for
\·
H viva voce, but the Commission arbitrarily prescribed a threshold of 65 per
PARVEEN JINDAL v. STATE OF HARYANA 355

cent which resulted in denial of opportunity of selection to the appellants. A

The stand taken by the Government of Haryana was that the
decision not to send requisition for filling np the vacant posts of Assistant
Executive Engineers in Irrigation Branch was bona fide and actuated by
relevant considerations because a large number of Assistant Engineers,
who can be posted only as Sub Divisional Officers/Sub Divisional En- B
gineers, are in surplus over and above the cadre strength and if the
Assistant Executive Engineers are also appointed as demanded by the
appellants, they will be in further surplus inasmuch as they too can be
posted only as Sub Divisional Officers/Sub Divisional Engineers.

Allowing the appeals in part, this Court,
c
HELD: 1. The Public se[Vice commission had no authority to in-
clude the vacancies in the Irrigation Branch in the notification issued by
it when the Government had not asked for it. May be the Commission did
so bona fide. Even so,-the fact remains that none were selected against the D
vacancies in the Irrigation Branch, evidently because no demand/requisi-
tion ever arrived from the Government. Indeed, it is not as if the apellants
appeared only for the vacancies in Irrigation Branch. It was a composite
notification for all the three wings. The appellants do not say that they
confined their applications to Irrigation wing alone. Those selected for the E
other two wings had admittedly scored more marks at the selection.
Therefore, the mere appearance at the selection does not clothe them with
the right to selection or appointment. [366G-H, 367A·C]

State of Ha1yana v. Subltash Chandra Marwaha, [1974] 3 S.C.C. 220
and I.J. Divakar v. Govemment of Andhra Pradesh, A.l.R. 1982 S.C. 1555, F
relied on.

2. Where the Rules have created a particular category, fixed its
cadre strength and have also prescribed a quota for such categroy in the
matter of promotion to the higher category, the Government would not be G
justified in not making appointments to such category for over a decade
unless there are very strong and good reasons therefor. The Government
would not be justified in nullifying • though not in word, but in spirit • the
Rules in this manner. [367C-D]

2.1. There is no reason why the Government did not think it lit to H
356 SUPREME.COUR'f REPORTS (1993] 2 S.C.R.

A make some ad hoc· appointments to the category or Assistant Execntive
Engineers when it was recruiting such a large number, on ad hoc basis, to
the category of Assistant Engineers. At the same time, the Courts have to
think twice before adding the numbers to the already over-loaded service.
It is not so much a question or 'punishing' the errant but one of what to
B do with the surplus personnel and the consequent unwarranted burden
upon the public exchequer. On balancing the contendin11 rights and equi-
ties, the Court is of the opinion that at least part or the cadre strength or
Assistant Executive Engineers in the Irrigation Branch should be filed np
in the near future. [367E-GI

C 3. The selection held in which the appellants had appeared, cannot
be directed to be finalised. The only direction that can properly be made
herein is to direct the Government to take steps for.filling up the vacancies
existing in tJte catgory or Assistant Executive Engineers in the Irri~tion
Branch as early as possible. Atleast hair the vacancies therein should be
filed within a period or one year from today. [367H, 368A·B]
D
I.J. Divakar v. Government of Andhra Pradesh, A.J.R. 1982 S.C. 1555,
distinguished.

4. A reading of the first proviso to Sub-Rule (2) of Rule 7 shows that
it prescribes a mioimnm percentage of marks in the written test both ror
appointment as well as for being called for interview (viva voce). It does
not create ~,right in the candidate, who has obtained the prescribed _
percentage or\narks, to be called for interview. [363A]

Ashok Kumar Yadav v. State of Haryana, A.l.R. 1987 S.C. 454, relied
F on.

Umesh Chandra v. Union of India, [1985] 3 S.C.C. 721; Nilima
Shangla v. Siate of Haryana, [1986] 4 S.C.C. 268 and P.K Ramachandra
Iyer & Ors. etc. etc. v. Union of India & Ors., [1984] 2 S.C.C. 141, referred -
G to.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.3465-69
of 1988.

From the Judgment and Order dated 26.10.1987 of the Punjab and
H Haryana High Court in C.W.P. Nos. 755, 5141 & 3659/87 & 3138/88.
•
PARVEEN JINDAL v. STATE OF HARYANA [REDDY, J.] 357

Shanti Bhushan and Prem Malhotra for the Appellants. A

Ms. Nisha Bagchi for Ms. Indu Malhotra, U.S. Chowdhary and
Ravindra Bana for the Responde~ts.

Bhal Singh Malik and S.M. Hocida for the Intervenor.
B
The Judgment of the Court was delivered by

B.P. JEEVAN REDDY, J. This batch of appeals is preferred against
a common judgment of Punjab an Haryana High Court dismissing a batch
of six writ petitions.
c
There are three wings/branches in the Public Works Department of
the Government of Haryana, viz., Irrigation, Roads and Buildings and
Public Health. We are concerned herein with the Irrigation branch. The
Engineering service in the Irrigation branch comprises both class:! .ai;id
·class-II services. Recruitment to and conditions of service of class-I are ··D
governed by the Haryana Service of Engineers Class-I P.W.19., Irrigation
Branch Rules, 1964 \Vhereas recruitment to and conditions of service of
class-II is governed by Haryana Service of Engineers Class-II P.W.D.
(Irrigation Branch) Rules, 1970. The lowest category in. class-I is that of
Assistant Executive Engineers. Above it is the category of Executive En-
gineers and above it Superintending Engineers. Recruitment to the E
category of Assistant Executive Engineers is only by direct recruitment.
Recruitment to the category of Executive Engineers is (a) by direct recruit-

-- ment, (b) by transfer of an officer already in class-I sernce of the Govern-
ment of India or of a State Government and (c) by promotion from class-II
service. Sub-rule (2) of Rule 5 of the class-I Rules says, "recruitment to the
service shall be so regulated that the number of posts filled by promotion
F

·~ from class-ll service shall not exceed 75% of the number of posts in the
service excluding the posts of Assistant Executive Engineers for the first
10 years from the date of commencement of these Rules and thereafter
shall not exceed 50% of the number of posts in the service excluding the
post of Assistant Executive Engineers." The proviso to this sub-rule, how-
ever, says that 11 in case an adequate number of Assistant J;:xecutive En-
gineers who are eligible and considered fit for promotion are not available
the actual percentage of officers promoted from class-II service may be
larger than 75% or 50%, as the case may be." In other words, after the year
1974, the share of class-II officers in the promotion quota to the category H
358 SUPREME COURT REPORTS [1993] 2 S.C.R.

A of Executive Engineers categroy, shall not exceed 50%, the balance being
allocated to the Assistant Executive Engineers who are also entitled to be
promoted to the categroy of Executive Engineers. Bllt in case adequate
number of Executive Engineers are not available, the said ceiling can be
exceeded.

B
Though the Assistant Executive Engineers are. in class-I and Assis-
tant Engineers are in Class-II, both these categories discharge similar
functions, duties and responsibilities. Members of bot.Ii these categories are
posted as Sub-Divisional Officers/Sub-Divisional Engieers. Both are
eligible for promotion to the category of Executive Engineers as stated
c above, but while the cadre strength of Assistant Engineers is very large, the
cadre strength of Assistant Executive Engineers is quite small, with the
consequence that in the matter of promotion to the category of Executive
Engineers, the Assistant Executive Engineers enjoy a marked advantage in
view of the inter se quota prescribed by sub-rule (2) of Rule 5. The
D Assistant Executive Engineers get promoted far sooner than the Assistant
Engineers. The cadre strength of Assistant Executive Engineers is stated
to be 49. While the cadre strength· of Assistant Engineers is not stated
before us, it is admittedly far larger.

E In the year 1985, the Haryana Public Service Commission issued a
notification stating that "a combined competitive examination for recruit~
ment to the post of Assistant Executive Engineers (C) in the P.W.D. will
be held by the Haryana Public Service Commission in August/September,

F
1985 in accordance with the rules of Haryana P.Vf.D. Irrigation, B&R and
Public Health Branches, as amended from time to time." Then followed
the table of particulars, which must be noticed:
-
Resetved Resetved Reserved
, Name Of Post No. Of For S.c. of For B.c. For Ex.
Post. Haryana Haryana Service
G Men.

1. 2. 3. 4 5.
(i) Haryana Service of Engineers 15 4 2 1
Class I (Junior Scales) in P.W.D.
, Public Health Branch.
H
PARVEEN JINDAL v. STATE OF HARYANA [REDDY, J.] 359

(ii) Haryana Service of enginners 8 2 1 A
Class I Engineers Class I (Junior
Scales) in P.W.D. B & R. Br.
(iii) Haryana Service of Engineers
Class I (Junior Scale) posts in the
P.W.D. Irrigation Branch are also B
likely to be filled from the suitable
candidates from this very
advertisement after the receipt of
demand from the Government.
2. The number of posts given against each category is liable to variation. C
Three posts (two for S.C. of Haryana and One B.C. of Haryana) in P.W.D.
B & R Branch are reserved failing with other shall be considered. Seven
posts (four for S.C. of Haryana, two for B.C. of Haryana and one for
Ex-Servicemen) in P.W.D. Public Health Branch are reserved failing
whom others will be considered".
D
It is significant to notice the wording of iteni (iii) in the table. It is
clear therefrom that the Public Service Commission had notified the vacan-
cies in the category of Assistant Executive Engineers (referred in the Rules
and in the notification as Engineers class-I (Junior Scale)) even without a
requisition from the Government. The Commission by stating that posts in E
the said category "are also likely to be filled from the suitable candidates
from this very advertisement after the receipt of demand from the Govern-
ment", had made it known to the candidates· of the absence of authority.

- Admittedly, no such demand or requisition was ever received by the
Government at any time after the issuance of the said notification. It is
equally relevant to point out that under the notification, applications for
F
selection to the category of Assistant Executive Engineers in all the three
wings of the P.W.D. were called for. The eligibility criteria and the
qualifications required for appointment to the said category is stated to be
indentical in all the three· wings though they are governed by different sets
of rules. It is also stated before us that no separate applications were G
necessary and that one could apply for appointment in all or any of the
three wings indicating his choice and subject to his fulfilling the prescribed
qualifications.

In response to the notification aforesaid, sever~ngineers including H
360 SUPREME COURT REPORTS [1993] 2 S.C.R.

A the appellants herein applied. A written test was conducted followed by an
oral interview. On the basis of the marks obtaioed in the written test and the -
oral interview, certain persons were selected for Public Health and Buildings
& Roads wings. No selections were made for the Irrigation wing evidently for
the reason that even by the date of finalisation of selections, no requisition or
demand had come from the Government. It is only then that the appellants
B
approached the Punjab and Haryana High Court with a batch of writ peti-
tions praying for the issuance of an appropriate writ, order or direction to the
respondents (Government of Haryana and the Haryana Public Service Com-
mission) "to fill up 44 vacancies of Assistant Executive Engineers and others
falling to the quota of direct recruits from amongst the applicants who had
c applied in pursuance of the advertisement... ... " They asked for a further
direction to the State of Haryana "to send requisition to the Respondent-
Commission to fill up all the vacancies in the Class-I service which are meant
for direct recruits forthwith and to make appointment to the class-I service by
the method of direct recruits as required by the Rules." The appellants
D challenged the method of selection followed by the Commission as also the
refusaVfailure of the Government to fill up the vacancies in the category of
Assistant Executive Engineers.

The writ petitions were opposed by the Public Service Commission
as also by the State Government. The High Court dismissed the writ
E petitions rejecting the several contentions urged by the appellants.

In this appeal, Sri Shanti Bhushan, the learned counsel for the
appellants urged the following contentions:

F (1) The cadre strength of Assistant Executive Engineers in the Irrigation
wing is 49. As against the said strength, there were only 5 persons holding
·-
the posts, \vhich means the vacancies are 44 in number. There has been no
recruitment to this category since 1979. In that year, the Government had
sent a requisition for 22 posts but only 8 were selected by the Commission.
From out of these eight, only five were appointed to the category. In the
G year 1983, the Government sent a requisition to the Commission for 23
posts but none were selected or appointed. It is in this situation that the
notification issued by the Commission in the year 1985 envisaged a selec-
tion to the category of Assistant Executive Engineers in the Irrigation
Branch as well. The Commission expected that in view of the vacancies
H earlier notified, the Government would be sending a requisition and with
' I .
PARVEEN JINDAL v. STATE OF HARYANA (REDDY, J.] 361

- ~
a ~ew to save time a.nd effort, it included the vacancies in Irrigation wing A
as well in the Notification, which pertained to the vacncies in the very same
Cl\tegory in the other two wings of the P.W.D., for which requisition was
received. The Government acted arbitrarily and unreasonably in no send-

_j
" ing the requisition, inspite of the fact that 44 vacancies have been existing
I in this category in Irrigation Branch sinre a long number of years. This
B
refusal to fill up the said vacancies is ma/a fide ai;id is designed to help and
)(
promote the interest of class-II officers. Though, according to the Rules,
=I the number of promotees from class-II in the category of Executive En-
gineers should not exceed 50%, the fact is that practically all the promotion
posts in.the category of Executive Engineers are held by erstwhile class-II
officers for the reason that the category of Assistant Executive Engineers c
in this branch is being kept practically empty. When the statutory rules have
created a particular· category and a cadre strength is also fixed therefor
·~
and more particularly when a quota is reserved for them in the channel of
promotion to the category of Executivie Engineers, it is not open to the
Government to nullify the spirit and object behind the Rules by refusing
D
to make appointment to the said category. If these 44 posts are filled up,
many of the appellants, if not all, are likely to be selected and appointed.

(2) The procedure adopted by the Haryana Public Service Commission is
contrary to statutory Rules. Whereas the Rules say that a candidate obtain-
ing 50% marks in the written test is entitled to be called for viva-voce, the E
;... Commission has arbitrarily prescribed a threshold of 65% which it had no
jurisdiction to do. As a result of the said arbitrary stipultion several of the
appellants have been denied the opportunity of selection. The Commission
..~
must now be directed to make selection afresh for all the three
~ wings/branches in the Public Works Department.
F
With a view to clear the ground, it would be appropriate to deal with
~
~ the second contention first. It is based upon the proviso to sub-rule (2) of
Rule 7 of the 1964 Rules. Rule 7 deals with direct appointment. For the
sake of convenience, we may set out sub-rules (1) and (2) of Rule 7:
G
"DIRECT APPOINTMENT:- (1) A Candidate for direct
appointment shall not be less than 20 years and more than
y 25 years on age of or before the first day of August next
preceding the last date of submission of applications to
the commission; H
A
362

Provided that:-
SUPREME COURT REPORTS [1993] 2 S.C.R.
-
"'
•
(a) in the case of candidates who are displaced persons
and in whose case the age limit for admission to
....
Engineering College had been relaxed, and in the case

B
of candidates belonging to the Scheduled Castes,
Scheduled Tribes and other backward classes the
r
upper age limit shall be such as may be fixed by the
Government from time to time.
rI
(b) in the case of candidates possessing the reqms1te
c qualifications who are already in the service of the
State Government, the upper age limit shall be 30
years;

(2) The selection of candidates, including those belonging
....
to Scheduled Castes, Scheduled Tribes or Backward Clas-
D
ses, shall be made by the Commission, after holding a
competitive examination, the syllabus for which shall be
such as may be prescribed by the Government from time
to time. The Commission shall recommend the required
number of candidates after arranging their names in the
E order of merit and indicating which out of them belong
to Scheduled Castes, Scheduled Tribes or Backward Clas-
ses:
1
F
Provided that a candidate shall not be considered
qualified for appointment,· unless he obtains not less
than forty per cent marks in each subject and also not
-
less than fifty per cent marks in the aggregate, and no
candidate who does not obtain the qualify'mg marks
shall be called for interview by the commission.

G Provided further that where a vacancy has been
reserved for a person belonging to Scheduled Castes,
Scheduled Tribes or Backward Classes, who secures
the highest marks in the aggregate and has qualified
for an appointment shall be selected irrespective of his
H position with respect to the other candidates."
PARVEEN JINDAL v. STATE OF HARYANA (REDDY, J] 363

-- A reading .of the first proviso to Sub-Rule (2) of Rule 7 shows that it
prescribes a minimum percentage of marl:s in the written test hoth for
appointment as well,as for being called for interview (viva voce). It does not
A

create a right in the candidate, who has obtained t.he prescribed percentage
of marks, to be called ·for imerview. This is how a similar Rule has been
understood by a Constltutibn J?ench of this Court inAshok Kumer Yadav v.
State of Harymia, A.I.R. 1987 S.C. 454. Regulation 3 in the Appendix to the
B
Haryana Civil Service (Executive) and other allied services read as follows:

'3. No candidate shall be eligible to 'appear in the viva
voce test unless he obtains 45 per cent marks in the
aggregate of all subjects including at least 33 per cent c
marks in each of the language papers in Hindi (in
Devanagri Script) ·and Hindi Essay provided that if at any
examination a sufficent number of candidates do no obtain
45 per cent marks in the aggregate the Commission may
at their discretion lower this percentage to not below 40 D
per cent for the language papers· remaining unchanged."

Construing the said Regulation, the Court held:

11
Jt is c]ear on a plain natural construction of Regulation
3 that what is prescribes is merely a minimum qualfication E
for eligibility to appear at the viva voce test. Every can-
didate to be eligible for appearing at the viva voce test
must obtain at least 45 per cent marks in the aggregate in
the written examination. But obtaining of minimum 45 per
cent marks does not by itself entitle a candidate to insist F
that he should be called for the viva voce test all can-
didates who satisfy the minimum eligibility requirement.
It is open to the Haryana Public Service Commission to
say that out of the candidates who satisfy the eligibility
criterion of minimum 45 per cent marks in the written
examination, only a limited number of candidates at the G
top of the list shall be called for interview. And this has
necessarily to be done because otherwise the viva voce test
would be reduced to a farce. It is indeed difficult to. see
how a viva voce test for properly and satisfactorily measur-
ing the personality of a candidate can be carried out, if H
364 SUPREME COURT REPOR'fll [1993] 2 S.C.R.

A over 1300 candidates are to be interviewed for recruitment
to a ·service. If a viva voce test is to be carried out in a
thorough and scientific manner, as it must be in order
arrive at a fair and satisfactory evaluation of the per-
sonality of a candidate, the interview must take anything
between 10 to 30 minutes."
B
In view of this decision, we do not think it necessary to deal with the
decisions cited by Sri Shanti Bhushan, namely, Umesh Chandra v. Union of
India, [1985] 3 S.C.C. 721; Nilima Shangla v. State of Haryana, [1986] 4
S.C.C. 268 and P.K Ramachandra Iyer & Ors. etc. etc. v. Union of lµdia &
C Ors., [1984] 2 S.C.C. 141. Suffice it to say that neith~r of them lays down
any principle contrary to the one quoted above from Ashok Kumar Yadav.

Coming to the first submission of Sri Shanti Bhushan, the defence of ~ -
the Government is to the following effect:
D
"It is also admittec'. that cadre strength of Assistant Ex-
ecutive Engineer was fLxed on 22.1.82 and is 49 out of
which 5 persons are in position. However, at present, there
is no vacant post of Assistant Executive Engineer in the
Department. The true facts are that during the year 1979-
E 80 some major projects viz. Drainage Projects, Jawahar
LalNehru Project and Linning etc. under the World Bank
Schemes were taken into hand and there was immediate
requirements of technical staff. For this purpose and to
take up the time bound works, 212 Assistant Engineers
F were recruited on adhoc basis and 178 Sub Divisional
Officers were promoted from Junior Engineers/Drafts-
men etc. on adhoc basis to meet the immediate require-
ment during the aforesaid period till their replacement by
the joining of regular Assistant Engineers through
Haryana Public Service Commission. The Haryana Public
G Service Commission recommended 176 number of Assis-
tant Engineers in December, 1981 for regular appoint-
ment against the posts of those, who were appointed/
promoted as Assistant Engineer/Sub Divisional Officers ··-v-
on adhoc basis. They were given offer of appointment on
H 29.1.1982. On joining of regular Assistant Engineers, the
PARVEEN JINDAL v. STATE OF HARYANA [REDDY, J.] 365

services of about 45 adhoc ASsistant Engineers were ter- A
minated by the Government. The adhoc Assistant En-
gineers whose services were terminated by the Govern-
ment filed Civil Writ Petition No. 1529/89 Amllfjeet Singh
and others v. State of Haryana and other, writs involving
the same cause of action challenging their termination
orders. Upon regular hearing the above Civil Writ Peti-
B
tion, the Punjab and Haryana High Court (Hon'ble Justice
Mr. I.S. Tiwana) in its orders dated 3.9.84 decided the
matter in favour of the adhoc Assistant Engineers
recruited during the year 1980. Thus the services of adhoc
Assistant Engineers could not .be terminated and they c
continued to hold the posts· of Assistant Engineers, till
date. However, Government have filed Letter Patent Ap-
peal No.186-90 of 1985 and 374-381 of 1985. Amarjeet
Singh etc. v. State and the same is pending for dedsion in
the Hon'ble Punjab and Haryana High Court. Similarly, D
the Sub Divisional Officers, who are promoted on adhoc
basis in the year 19:79-80 in excess of their quota could
not be reverted by the Gpvernment for want of finalisation
of Ranking List for the purpose of promotion to the post
of Sub-Divional Officers in pursuance of the direction
given by the Hon'ble Punjab and Haryana High Court in E
Civil Writ Petitipn No. 5630-5631 of 1981. J.P. Gupta and
Shri Krishan v. State, 15i4!76 M.L. Venna v. State and

- 4489/82 Shri R.K Jain v. State."

The learned counsei appearing for the Government of Haryana ex- F
plains that 176 Assistant Engineers selected by the Commission in. Decem-
ber, 1981 for regular appointment are· in addition to 390 Officers (212
Assistant Engineers recruited on adhoc basis and 178 Sub. Divisional Officers
promoted from the category of Junior Engineers/Draftsmen! etc. on adhoc
basis). This statment is, however, disputed by learned counsel for the appel-
!ants. Be that as it may, the submission of the learned counsel for the C'
Government of Haryana is this: both the Assistant Engineers and Assistant
Executive Engineers are posted as Sub-Divisional Officers/Sub-Divisional
Engineers. There is no other posting availabe for them. In the circumstances
explained in the counter-affidavit, a large number of Assistant Engineers are
in surplus over and above the cadre strength. They have to be pdsted some- l
366 SUPREME COURT REPORTS [1993] 2 S. C.R.

A where and they can be posted only as Sub Divisional Officers/ Sub.Divisional
Engineers. If Assistant Executive Engineers are also appointed as demanded
by the appellants, they will be in further surplus inasmuch as they too can be
posted only as Sub Divisional Officers/Sub Divisional Engineers - and there
are no posts available to post them. The Government is finding it difficult to
give postings to the already existing Assistant Engineers, who have been
B
recruited/promoted on adhot 'f>asis as stated above and who could not be
ousted because of the orders from ·courts. It is for this reason that the
Government did not send requisition for filling up the 44 posts of Assistant
Executive Engineers in Irrigation Branch. The said decision is a bona fide
decision actuated by relevant co~siderations. There are absolutely no mala
C fides on the part of the Govefll1'1ent in not filling up the said posts of Assistant
Executive Engineers. It is also brought to our notice that though a requisition
was sent to , the Commission in the year 1983 for 23 posts of Assi~tant
Executive Eniineers in the Irrigation Branch, the Gpvernment had
withdrawn the said requisition on May 20, 1983 itself i.e., even before any
D selection could be made. It was for this reason that no one was selected or
appointed to the said category in that year. Counsel submitted, supported by
the counsel for the Commission, that in these circumstances, the Commission
was justified in not selecting anyone against the post of Assistant Executive
Engineers in .the Irrigation wing, more particularly when the expectation of
the Commission that the Government may send a requisition therefor did not
E materialise even by the date of finalisation of selections.

The question that arises in the above circumstances is whether the
Government can be compelled to send a requisition to the Commission for
the selecting Assistant Executive Engineers in respect of 44 vacant posts?
and if it can be so compelled, would it be appropriate to direct that those
F
posts shall be mied by the candidates who applied for and appeared at the
selection held in the year 1985.?
--or
The first thing to notice is that the Public Service Commission had no
G authority to include the vacancies in the Irrigation branch in the notification
issued by it when the Government had not asked for it. The requisition from
the Government was to select Assistant Executive Engineers only for the
other two wings viz., Buildings and Roads and Public Health. May be the
Commission did so bona fide. Even so, the fact remains that none were
selected against the vacancies in the Irrigation branch, evidently because ·no
H demand/requisition eve.r arrived from the Government. Merely because the
PARVEEN JINDAL v. STATE OF HARYANA [REDDY, J.] "367

appellants appeared at such selection they did not get any right to compel A
either the commission or the Government to select and appoint them. In-
deed, it is not as if the appellants appeared only for the vacancies in Irrigation
Branch. It was a composite notification for all the three wings. The appellants
do not say that they confmed their applications to Irrigation wing alone.
Those selected for the other two wings had admittedly scored more marks at B
the selection. Because, the appellants could not get selected against the
vacancies in the other wings, they have turned their attention to Irrigation
wing. The relevance of their attack upon the selection procedure adopted by
the Commission becomes clearer in this context. Be that as it may, the mere
appearance at the selection does not clothe them with the right to selection
and/or appointment. This is the principle affirmed by till$ court in State of C
Haryana v. Sub.hash Chandra Marwaha, (1974) 3 SCC 220 and IJ. Divakarv.
.Govememt of Andhra Pradesh, A.LR. 1982 S.C. 1555. At the same time, we
are constrained to observe that where the Rules have created a particular
category, fixed its cadre strength and have also prescribed a quota for such
category in the matter of promotion to the higher category, the Government D
would not be justified in not making appointments to such category for over
a decade unless there are very strong and good reasons therefor. The
Government would not be justified in nullifying - though not in word, but in
• spirit - the Rules in this manner. We are also not persuaded that the defence
put forward by the Government in this case is acceptable. There is no reason
why the Government did not tbink it fit to make some adhoc appointments to E
the category of Assistant Executive Engineers when it was recruiting such a
large number, on adhoc basiS, to the category of Assistant Engineers. The
situation in which the Government finds itself today is really of its own

- making. The problem is no doubt real. The courts have to think twice before
adding the numbers to the already over-loaded service. It is not so much a
question of 'punishing' the errant but one of what to do with the surplus
F
personnel and the consequent nnwrranted burden upon the public exche-
quer. On balancing the contending rights and equities, we are of the opinion
that at least part of the cadre strength of Assistant Executive Engineers in the
Irrigation branch should be filled up in the near future.
G
The question .then arises whether the selection held in 1985-86 al
which the appellants had appeard, should be directed to be finalised. We
do not think so. The situation is not similar to the one considered by this
court in Divakar. That was a case where the C6mmission called for· applica-
tions pursuant to the requisition from the Govermlu:nt, held the intervieWs H
368 SUPREME COURT REPORTS [1993] 2 S.C.R.

·A and was about to finalise the select list that the Government withdrew the
requisition. In those circumstances, this Court, while holding that the
candidates who appeared for the selection had no right to compel the
commission or the Government to select and appoint them, yet gave a
direction, in the interest of justice, to finalise the selection process and
forward the select list to the Government. The situation in this case, as
B already explained hereinbefore is totally different. The only direction that
can properly be made herein is to direct the Government to take steps for
filling up the vacancies existing in the category of Assistant Executive
Engineers in the Irrigation branch as early as possible. Atleast half the
vacancies therein should be filled within a period of one year from today.
c Before concluding, we must refer to certian letters relied upon by Sri
Shanti Bhushan to justify the notification issued by the Commission. He
relied upon the letters of the Engineer-in-Chief dated 16.8.1985, 16/ -
20.5.1986 and another letter written in between (the date of this letter is not
given) addressed to the Government of Haryana stating that while at the
D moment there was no vacancy of Assistant Executive Engineer, there was a
possibility of some vacancies arising on account of retirement etc. He, there-
fore, requested the Government to take steps to select persons therefor.
Firstly, it may be noticed that the appointing authority for this category being
•
the Government, only the Government could send the requirsition/demand
to the commission and not the Engineer-in-Chief. The aforesaid letters are
E
merely in the nature of recommendation to the Government. Secondly, all the
three letters are subsequent to the notification issued by the commission
calling for applications. These letters, therefore, ,do not justify the commis-
sion calling for applications in respect of vacancies in the Irrigation branch.

F For the above reasons, the appeals are allowed partly. A direction
shall issue to the Government of Haryana to take steps for filling up the
vacancies in the category of Assistant Executive Engineers in Irrigation ~
branch of P.W.D. as early as possible in accordance with law. Atleast half
the vacancies shall be. filled up within one year from today. It is further
G directed that if any of the candidates who had applied in pursuance of the
1985 Notification apply again, and if they are found to have become
age-barred, relaxation in the matter of age shall be granted to them so as
to make them eligible for consideration. No other relief can be granted in -~ ~
these appeals. There shall be no order as to costs.

T.N.A. Appeals allowed.