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Kailash Chander Sharma v. State Of Haryana And Others
Factual and Procedural Background
The petitioner participated in a recruitment process conducted by the Haryana Public Service Commission (HPSC) for the post of Assistant District Attorney. By letter dated 7-5-1986, the Commission informed him that he was selected and placed at serial No. 39 in a merit list of sixty-six candidates. In earlier litigation—Sat Dev Parasher v. State of Haryana—this Court had dealt with ad-hoc appointees to the same post. During those proceedings, counsel for the State of Haryana gave an undertaking that any vacancy arising within one year would be filled from the HPSC merit list in order of seniority.
Despite the undertaking, the petitioner was not appointed. The State first admitted in an affidavit that 39 general posts were available, but later claimed the correct figure was 37 and characterised the earlier statement as a “typographical mistake.” It also asserted that no vacancy arose within the one-year period. Subsequently, 27 additional posts were advertised. Alleging arbitrary denial of appointment, the petitioner invoked Article 32 of the Constitution, seeking a writ of mandamus directing the State to appoint him.
Legal Issues Presented
- Whether the petitioner, ranked 39 on the HPSC merit list, had a right to appointment to the post of Assistant District Attorney pursuant to the State’s undertaking recorded in Sat Dev Parasher v. State of Haryana.
- Whether the State could lawfully avoid that undertaking by asserting that no vacancies arose within the stipulated one-year period.
Arguments of the Parties
Petitioner’s Arguments
- He was duly selected by the HPSC and placed at serial No. 39, corresponding to the number of posts initially admitted by the State.
- The State’s later claim that only 37 general posts existed is inconsistent with its prior affidavit and amounts to arbitrary conduct.
- Vacancies necessarily arose within the one-year window because 27 posts were subsequently advertised; the State deliberately delayed action to evade the Court’s directive.
Respondents’ Arguments
- The reference to 39 general posts in the earlier affidavit was a typographical error; only 37 posts were earmarked for general candidates.
- No vacancy arose within one year after the Court’s December 1985 judgment; hence the undertaking was fully honoured.
- The petitioner has no fundamental right to appointment and must participate afresh in any new recruitment process.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sat Dev Parasher v. State of Haryana, W.P. No. 887 of 1986 (Supreme Court) | State undertaking that any vacancy arising within one year would be filled by HPSC-selected candidates in order of merit; clarification that ad-hoc appointees held only temporary tenure. | The Court treated the State’s undertaking as binding and measured the State’s subsequent conduct against it, concluding that vacancies did arise within the year and that the petitioner, being No. 39 on the merit list, was entitled to appointment. |
Court's Reasoning and Analysis
The Court took judicial notice of two uncontested facts: (1) the petitioner’s selection and rank (No. 39) on the HPSC merit list, and (2) the State’s unequivocal undertaking recorded in Sat Dev Parasher. It found the State’s assertion—that no vacancies arose within one year—“incredible,” particularly because 27 posts were later advertised without explaining when each vacancy occurred. The Court reasoned that vacancies in public service posts inevitably arise through retirement, resignation, or creation of new positions; therefore, at least some of the 27 positions must have become available during the one-year window.
Viewing the State’s change of stance—from 39 to 37 general posts—as an attempt to circumvent the Court’s earlier directive, the Bench held that technical arguments about the expiry of the one-year period could not defeat the substance of the undertaking. The Court emphasized that governmental actions must align with both the letter and spirit of judicial orders, and it refused to allow deliberate delay to nullify those orders.
Holding and Implications
ORDER: The respondents are directed to appoint the petitioner as Assistant District Attorney, subject to medical fitness. No costs were awarded.
Implications: The decision enforces compliance with a prior undertaking given to the Supreme Court, reinforcing that the State cannot evade such commitments on technical grounds. The ruling provides immediate relief to the petitioner but does not announce a broader doctrinal change.
K. Ramaswamy, J.— This writ petition under Article 32 of the Constitution is a sequel to the order passed by this Court in Sat Dev Parasher v. State of Haryana Writ Petition No. 887 of 1986 and a batch of connected Special Leave Petitions, Transfer Petitions, etc. in December, 1985. The State of Haryana made on different dates ad hoc appointments to the posts of Assistant District Attorney. Applications were invited by the Haryana Public Service Commission to make recruitment to the posts of Assistant District Attorney. The ad hoc appointees filed writ petitions under Article 32 and also special leave petitions against the judgment of the High Court of Punjab and Haryana. Their main contention was that they have been regularly recruited though on ad hoc basis after interview by a duly constituted committee and that they were entitled to be regularised. This Court while disposing of the cases held that the petitioners therein were appointed only on ad hoc basis till suitable candidates were available for regular appointment. The interim orders passed on different dates were vacated. It was observed that “if amongst the said petitioners any person has been appointed regularly by the Public Service Commission subsequently he shall hold the post pursuant to the order issued on the recommendation of the Public Service Commission. This order of dismissal will not affect him. The petitions are disposed of accordingly. The candidates who have been selected by the Public Service Commission shall be appointed by the State Government on regular basis and any stay order passed by this Court against their appointment is vacated. These petitions are accordingly allowed. Dr. Y.S Chitale, learned Counsel for the State, submits that if any post of the Assistant District Attorney is to be filled up within one year, candidates who are selected by the Public Service Commission but have not been appointed shall be appointed in the order of merit....” The petitioner was, admittedly, selected by the Haryana Public Service Commission, as communicated by letter dated 7-5-1986, with his Roll No. 446. He stood at serial No. 39 in the order of merit among sixty-six selected candidates. In the counter-affidavit filed in the earlier group of petitions by the State of Haryana it was admitted that 39 posts were to be filled from among the selected general candidates. The petitioner having been selected on merit and assigned the 39th position, was also entitled to be appointed as Assistant District Attorney. It is the petitioner's case that the respondents have arbitrarily and illegally denied him his right to appointment as Assistant District Attorney. It is his case that several representations made in this regard received no consideration constraining him to approach this Court for issuance of a writ of mandamus or order or direction to the respondents to give his due appointment. In the counter-affidavit, it is admitted that the petitioner was selected by the Public Service Commission and he stood at serial No. 39, but the posts earmarked for the general candidates were 37. Consequently, the petitioner could not be appointed. This Court seeing the specific admission made on the earlier occasion that 39 posts were earmarked for general candidates, called upon the respondents to explain the contradictory stand set up in the present case. A further affidavit was filed stating that averments of earmarking 39 posts for general candidates is a typographical mistake. The total number of posts notified were 57, the break up of which is that 11 posts were reserved for Scheduled Castes, six posts were reserved for Backward Classes and three posts were reserved for NSML and the remaining 37 were to be filled up from general candidates. They regretted the typographical error committed in the earlier affidavit. It is also admitted that subsequent notification was issued by the Public Service Commission to select 27 candidates to fill up 27 posts of Assistant District Attorneys, but claiming to be, after the expiry of the one year limit set by this Court. The stand taken by the respondents in their counter-affidavit and argued by their counsel is that the direction issued by this Court referred to hereinbefore was strictly adhered to and appointments were given to all the selected candidates. No vacancy had arisen before the expiry of one year as indicated in the judgment, and therefore, the petitioner could not be appointed as per the undertaking given by the counsel for the State. The petitioner has no fundamental right to appointment. He has to apply afresh and take his chance for selection by the Haryana Public Service Commission.
2. The admitted fact is that the petitioner was one among the selected candidates standing at serial No. 39 in the order of merit by the Public Service Commission and was recommended for appointment to the post of Assistant District Attorney. The counsel for the State had given an unequivocal undertaking that if any vacancies arise within one year from the date of the judgment, the candidates selected and recommended by the Public Service Commission shall be appointed to those posts in the order of merit. It is incredible to believe the averment of the State that within one year even one vacancy in the post of Assistant District Attorney had not arisen for appointment when 27 posts were subsequently notified for direct recruitment. It is not their case that all the 27 vacancies had suddenly arisen on a particular date just after the expiry of one year. It would be obvious and it is common knowledge that vacancies kept arising as and when the incumbents of such posts either retire or resign or new posts are created. When this Court had given the direction on the undertaking given by the State that selected candidates would be appointed in vacancies in the said posts that would arise within one year, it was expected that the Haryana State Government would comply with the spirit and substance of the direction, and not avoid compliance on the technical plea of expiry of the one year period. We wanted to know the definite dates when the 27 vacancies arose but the details have not been placed on the record in spite of the court's query. On the fact-situation arising out of the record of the proceeding, it has to be concluded that some of these 27 vacancies did arise within the one year period set by this Court in its earlier order but the State Government delayed action to allow the year to run out and to free itself from the purview of the direction. The court would not permit the State to avoid implementation of the order made by it on any technical or unjustified stand. In these circumstances, we are of the considered view that the petitioner became entitled to be considered for appointment to the post of Assistant District Attorney and given appointment in accordance with the rules. The respondents are, accordingly, directed to appoint the petitioner against one of the posts of Assistant District Attorney subject to physical fitness. No costs.
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