HEMANT GUPTA, J.

This order shall dispose of aforesaid two Letters Patent Appeals filed on behalf of the 05 General category candidates i.e 04 in LPA No. 1903 of 2011 and 01 in LPA No. 2021 of 2011, as both the appeals arise out of the same judgment of the learned Single Judge and raise similar question of law and facts.

The names of the appellants appear at Sr. No. 42 onwards in the list of General category candidates for appointment to the Haryana Civil Services (Judicial Branch) (for short “the Service”), the result of which was declared on 20.12.2007 The appellants claimed appointment to the Service, inter alia, for the reason that in terms of Rule 8.5 Part D of Punjab Civil Services (Judicial Branch) Rules, 1951 applicable to the Haryana Civil Services (Judicial Branch) (for short “the Rules”), the names of the candidates selected by the Government for appointment, as Civil Judges (Junior Division), are required to be entered in the High Court Register to the extent of 30% more than the advertised vacancies. It is, thus, alleged that since 54 vacancies were advertised, therefore, the respondents are under statutory obligation to maintain names of 54 + 16 = 70 names in the Register to meet any contingency. It is also contended that in terms of the judgment of Hon'ble Supreme Court in Malik Mazhar Sultan v. U.P Public Service Commission(2006) 9 SCC 507, the vacancies have to be calculated by including 10% of the number of posts towards future vacancies that may arise due to elevation to the High Court, death or otherwise. Reliance is also placed upon Clause 11 of the Schedule fixed for filling up of the vacancies, wherein the declaration in the final select list was to be in order of merit and should be double the number of vacancies notified in the aforsaid judgment of the Hon'ble Supreme Court.

It was also alleged that 17 additional vacancies of Civil Judges (Junior Division) became available besides the 65 additional posts created on 20.11.2007, therefore, such posts are also required to be filled up on the basis of selection process initiated vide advertisement issued in the year 2007. It is also pointed out that 05 posts have fallen vacant on account of the candidates, who resigned consequent to their joining in Punjab Civil Services (Judicial Branch) or in the Delhi Judicial Services. Therefore, the appellants invoked the writ jurisdiction of this Court seeking appointment in the Haryana Civil Services (Judicial Branch).

The selection process was initiated with the issuance of notifaction on 23.03.2007, when 34 vacancies were taken out of the purview of the Public Service Commission. Out of such 34 vacant posts, 16 posts were meant for General Category; 09 for Schudule Castes of Haryana; 05 of Backward Classes of Haryana; 01 of Ex-servicemen of Haryana & 03 of Physically handicappted. 20 anticipated vacancies were also advertised. The final result was notified on 13.2.2008 But before the notification of result, 65 additional posts were created on 21.11.2007 To fill up the said posts, separate advertisement was published on 14.09.2008 All the 54 vacancies notified vide advertisement issued in the year 2007 have been filled up in two phases i.e 13.02.2008 and 14.03.2008 in the following manner:

Caegory

Vacancy shown in the advertiseme nts

Actual vacancies that were available on reconciliation with the data made available by the Hon'ble High Court

Posts filled up in the first phase i.e 13.02.2008

Posts filled up in the second phase i.e 14.03.2008

Total

(1)

(2)

(3)

(4)

(5)

(6)

General

28

29

23

17

40

Scheduled Castes

13

11

5

-

5

Backward Classes

6

9

3

6

9

Ex-servicemen

3

-

-

-

2

Physically handicapped persons

4

3

-

-

-

Total

54

54

31

23

54

In the writ petitions filed by the appellants, the learned Single Judge examined the following 05 questions:

(i) What is the true import of Rule 8(5)(i) of the Punjab Civil Services (Judicial Branch) Rule, 1951, as amended from time to time and the judgment of Hon'ble Apex Court in case of Malik Mazhar Sultan's (supra)?

(ii) How many vacancies fall within the purview of above mentioned Rule/judgment?

(iii) Whether the petitioners fall within the select list and have a right to be appointed against the vacancies engisaged under Point (ii) above?

(iv) Whether the petitioners have any right for appointment against the future vacancies created after the date of advertisement dated 23.07.2007?

(v) Conversion of unfilled Scheduled Caste vacancies to Backward Class vacancies.

The leaned Single Judge returned a finding that the rule contemplates that additional 30% vacancies are to be advertied to meet any contingency of the advertised posts remaining unfilled. The spirit of the rule is not to cater to future vacancies becoming available for what ever reason. Considering the Malik Mazhar Sultan's case (supra), it was held that the conclusion is that the select list comprises of vacancies available on the date of advertisement + 10% of the total sanctioned strength of the cadre. Since the total cadre strength was 198, therefore, 10% of the total strength i.e 20 anticipated vacancies were advertised. In respect of question No. 3, it was noticed that all the appointed candidates joined their respective posts on their being selected and, thus, no vacancy accrued on account of non-jointing/drop out. 14 vacancies became available on account of promotion between the period 23.03.2007 and 14.09.2008 i.e upto next selection. These additional vacancies were put to advertisement in the next selection vide advertisement dated 14.09.2008 and that the appellants have no right to be appointed against the vacancies after the advertisement.

Before this Court, learned counsel for the appellants have vehemently argued that in terms of Malik Mazhar Sultan's case (supra) the vacancies have to be calculated including future vacancies to the extent of 10% of number of posts. Since the vacancies advertised are 54, therefore, the select list is to contain names of the candidates of 10% of the number of posts, over & above the advertised posts in terms of merit list prepared. It is also argued that the select list has to be of double the number of vacancies notified. Since 54 vacancies were in existence as per advertisement, therefore, the select list published has to be of twice the said number of vacancies. Reliance is also placed upon Part D of the Rules contemplating that the candidates selected by Government for appointment as Civil Judges (Junior Division) under Rules 10 & 11 Part C, shall be entered into High Court Register in order of selection to the extent of 30% of more than advertised vacancies, so as to meet any contingency for the advertised posts. Therefore, such 30% of the vacancies contmeplated are over & above 54 advertised posts. Relying upon Clause 7(1) of Part D of the Rules, it is contended that any vacancy in the cadre of Haryana Civil Services (Judicial Branch), whether permanent, temporary or officiating is required to be made from the High Court Register in which names have been registered in the Register, therefore, the appellants claim right of appointment. Reliance is also placed upon a judgment of Hon'ble Supreme Court reported as Gujarat State Dy. Executive Engineers' Association v. State of Gujarat 1994 (2) SLR 710. Since 05 selected candidates have resigned, therefore, the appellants claim resultant vacancies to be filled up in the same manner, as has been done in the case of Ms. Mona Singh, whose name appear at Sr. No. 41 of the list.

After hearing learned counsel for the appellants, we do not find any merit in the arguments raised. A perusal of the table, reproduced above, shows that as against 28 vacancies for the General category, the category to which the appellants belong, as many as 40 candidates stand appointed. No doubt, 05 candidates of the General category have resigned or have not joined, but the said fact will not create any right in favour of the appellants to seek appointment as a member of the Haryana Civil Services (Judicial Branch). The resignation after joining does not entitle a waiting list candidate to join.

The Hon'ble Supreme Court in State of Punjab v. Raghbir Chand Sharma(2002) 1 SCC 113 was considering a case, where a candidate resigned after joining. It was held that after the joining of candidate, the panel ceased to exist and has outlived its utility. It was held to the following effect:

“4. ….As rightly contended for the appellant State, the notification issued inviting applications was in respect of one post and the first candidate in the select panel was not only offered but on his acceptance of offer came to be appointed and it was only subsequently that he came to resign. With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently.”

In Prem Singh v. Haryana State Electricity Board(1996) 4 SCC 319, the Hon'ble Supreme Court held that the selection process can be started for clear vacancies and also for anticipated vacancies, but not for future vacancies. The State cannot make more appointments than the number of posts advertised even though it might have prepared a select list of more candidates. It was held to the following effect:

“25. From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case.”

In Surinder Singh v. State of Punjab(1997) 8 SCC 488, the Hon'ble Supreme Court considered the judgment in Prem Singh's case (supra) and Gujarat State Dy. Executive Engineers' Association case (supra) i.e the judgment relied upon by the appellants and held that waiting list cannot be used as a perennial source of recruitment to fill up the vacancies not advertised. It observed as under:

“15. Prem Singh case (supra) was decided on the facts of that case and those facts do not hold good in the present case. In the case of Gujarat State Dy. Executive Engineers' Assn. Case (supra), this Court has explained the scope and intent of a waiting list and how it is to operate in service jurisprudence. It cannot be used as a perennial source of recruitment filling up the vacancies not advertised. The Court also did not approve the view of the High Court that since vacancies had not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed. Candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative.

16. It is in no uncertain words that this Court has held that it would be an improper exercise of power to make appointments over and above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelled out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touchstone of reasonableness. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of course that the authority can fill up more posts than advertised.”

The said principle was followed in a later judgment reported as Rakhi Ray v. High Court of Delhi(2010) 2 SCC 637, when it was observed as under:

“7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as “the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution”, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to “improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale”, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v. Ishwar Singh Khatri1992 Supp (3) SCC 84, Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat case (supra), State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 (1994) 1 SCC 126, Prem Singh v. Haryana SEB case (supra) and Ashok Kumar v. Banking Service Recruitment Board(1996) 1 SCC 283.)

8. In Surinder Singh v. State of Punjab(1997) 8 SCC 488, this Court held as under: (SCC p. 494, paras 14 & 16)

“14. …‘9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.’

xxx xxx xxx

16. … Exercise of such power has to be tested on the touchstone of reasonableness. … It is not as a matter of course that the authority can fill up more posts than advertised.” (emphasis added)

9. Similar view has been reiterated in Madan Lal v. State of J&K(1995) 3 SCC 486, Kamlesh Kumar Sharma v. Yogesh Kumar Gupta(1998) 3 SCC 45, Sri Kant Tripathi v. State of U.P(2001) 10 SCC 237, State of J&K v. Sanjeev Kumar(2005) 4 SCC 148, State of U.P v. Rajkumar Sharma(2006) 3 SCC 330 and Ram Avtar Patwari v. State of Haryana(2007) 10 SCC 94.

In Rakhi Ray's case (supra), which deals with appointment of Superior Judicial Services, the Hon'ble Supreme Court held that any appointment made beyond the number of vacancies advertised is without jurisdiction and violative of Articles 14 and 16(1) of the Constitution of India and, thus, a nullity, inexecutable and unenforceable in law. It is held that the waiting list etc. cannot be used as a reservoir to fill up the vacancy which comes into existence after the issuance of notification/advertisement. It observed as under:

“12. In view of above, the law can be summarised to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. In case the vacancies notified stand filled up, the process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more.

13. In the instant case, as 13 vacancies of the general category had been advertised and filled up, the selection process so far as the general category candidates is concerned, stood exhausted and the unexhausted select list is meant only to be consigned to record room.”

It may be noticed that in the aforesaid case, the reliance was placed upon in Malik Mazhar Sultan's case (supra), as in the present case, and it was held that selections in Judicial Service have to be made as per the existing statutory rules. A direction was issued for amending the existing laws to adopt the recommendations of Justice Shetty Commission for the future. It was observed as under:

“18. In Malik Mazhar Sultan's case (supra), this Court made it clear that appointments in Judicial Service have to be made as per the existing statutory rules. However, direction was issued to amend the rules for future selections. This Court considered the correspondences between various authorities of the States and also the decision taken in the conference of the Chief Ministers and Chief Justices held on 11.03.2006, and observed as under:

“… Before we issue general directions and the time schedule to be adhered to for filling vacancies that may arise in subordinate courts and district courts, it is necessary to note that selections are required to be conducted by the authorities concerned as per the existing Judicial Service Rules in the respective States/Union Territories…. As already indicated, the selection is to be conducted by authorities empowered to do so as per the existing rules. … In view of what we have already noted about the appointments to be made in accordance with the respective Judicial Services Rules in the States, the apprehension of interference seems to be wholly misplaced….” (emphasis added)

Therefore, it is clear that this Court clarified that selection was to be made as per the existing rules and direction was issued for amending the existing laws to adopt the recommendations of Justice Shetty Commission as approved by this Court for the future.”

Later in State of Orissa v. Rajkishore Nanda(2010) 6 SCC 777 again, the Hon'ble Supreme Court held that the vacancies cannot be filled up over & above the number of vacancies advertised “as the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution”. It was held to the following effect:

“11. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as “the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution”, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to “improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational”, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 (1994) 1 SCC 126, Prem Singh v. Haryana SEB case (supra), Ashok Kumar v. Banking Service Recruitment Board(1996) 1 SCC 283, Surinder Singh v. State of Punjab(1997) 8 SCC 488 and Rakhi Ray v. High Court of Delhi case (supra)).”

In the present case, the names of the appellants appear at Sr. No. 42 onwards. As against 28 vacancies advertised, 40 candidates have been appointed out of which 05 have resigned or not joined. Therefore, the candidates much more than the vacancies advertised already have been permitted to join. The select list stands exhausted with the joining of the candidates. The resignation of few candidates after their joining, does not entitle a waiting list candidate to claim appointment. In view of the said fact, the appellants cannot claim any legal right in the posts advertised in the year 2007. The appellants cannot claim any right of appointment in respect of vacanicies which arose after advertisement or in respect of additional posts created after advertisement.

Consequently, we do not find that there is any illegality or irregularity in the order passed by the learned Single Judge, which may warrant interference in appeal before this Court.