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SOMVEER LAMBA v. HARYANA PUBLIC SERVICE COMMISSION & ANR [2015] INSC 480 (6 JULY 2015) THE SUPREME COURT OF INDIA SOMVEER LAMBA ……………………………………. APPELLANT(S) VERSUS HARYANA PUNLIC SERVICE COMMISSION …………...………………………………. RESPONDENT(S) Dated: 6th July, 2015 Bench: Adarsh Kumar Goel,J

JUDGMENT : 1. The facts necessary for deciding whether the petitioner is entitled to be appointed to the Haryana Civil Service (Judicial Branch) (hereinafter referred to as 'the service') and whether a writ in the nature of mandamus can be issued directing the respondent-Haryana Public Service Commission (for short 'the Commission') to recommend his name for appointment to the service are that the petitioner applied for recruitment to the service in pursuance of advertisement No. 3 of 1988 issued by the Commission. He claimed consideration for appointment as a ward of Freedom Fighter but the Commission declined to consider his candidature. This was challenged by him in C.W.P. No. 1615 of 1990 which was dismissed by this Court. Their Lordships of the Supreme Court reversed the High Court's order in S.L.P. No. 13314 of 1991 decided on 26.3.1992 and remanded the case for fresh adjudication. Thereafter, the writ petition was allowed by the learned Single Judge on 13.10.1993 [1994(1) RSJ 291 - Som Veer Lamba v. State of Haryana another]. In compliance of the direction of the Court, the Commission interviewed the petitioner on 23.11.1993. He was awarded 41 marks in the viva voce but his name was not recommended because he did not satisfy the requirement of securing 55% marks in the aggregate. The petitioner challenged that decision of the Commission in C.W.P. No. 4470 of 1994 which was dismissed on 21.11.1995 [Som Veer Lamba v. Haryana Public Service Commission and others, 1996(2) RSJ 446]. The petitioner filed L.P.A. No. 102 of 1996. That too was dismissed on 9.4.1997. Thereafter, the petitioner filed S.L.P. No. 15182 of 1997. Their Lordships of the Supreme Court issued notice of the S.L.P. to the respondents and after hearing counsel for the parties dismissed the same on 20.3.1998. Review Petition No. 1425 of 1998 filed by the petitioner was also dismissed by their Lordships on 23.7.1998. 2. Undeterred by the dismissed in C.W.P. No. 4470 of 1994, L.P.A. No. 102 of 1996, S.L.P. No. 15182 of 1997 and Review Petition No. 1425 of 1998, the petitioner has again invoked writ jurisdiction of this Court for grant of the following reliefs:

    "(a) a writ in the nature of mandamus or such other appropriate writ, order or direction be issued directing the respondent No. 1 to declare the petitioner qualified within meaning of Amended Rule 8(P/4) or Amended Rules (P/5) of the Rules, on the basis of marks obtained in written examination and viva voce test, (P/1). It is further prayed that respondent No. 1 be directed to recommend the name of the petitioner to the respondent No. 2 for the post of Subordinate Judge on the basis of Annexure P/1, by treating the petitioner at par with other Backward Classes;
   (b) such other appropriate writ, order or direction as this Hon'ble Court may deem fit in the interest of justice, including setting aside the order of this Hon'ble Court dated 21.11.1995 which was delivered on the basis of the Rules, which were repealed, discriminatory and the same are deemed to be inoperative in view of 1994(4) RSJ 127 read with 1992(1) PLR 313.

3. Shri S.K. Lamba urged that in view of the amendment made in the Punjab Civil Service (Judicial Branch) Rules vide notification Nos. GSR 532/Const./Arts.234-309/Amd.(1)90 dated 13.6.1990 and GSR 95/Const./Arts.234 and 309/Amd.(1)96 dated 30.10.1996, the petitioner is entitled to be appointed to the service and the Commission is bound to recommend his name because he secured more than 50% marks. Learned Counsel submitted that the amendment made vide notification dated 30.10.1996 though not retrospectively, should be applied to the case of the petitioner because he is claiming appointment on one of the posts reserved for wards of Freedom Fighters. Learned Counsel argued that the dismissal of S.L.P. and the Review Petition by the Supreme Court should not be treated as a bar to the maintainability of this petition because no reasons have been given by the Supreme Court for not entertaining the claim of the petitioner. He further submitted that the petitioner did make an attempt to convince the Apex Court that in view of the amended rules, he is entitled to be appointed against a post reserved for wards of Freedom Fighters but their Lordships have not considered this plea and, therefore, the petitioner should be given appropriate relief by this Court keeping in view of the decision in Major Phalit Sharma v. State of Haryana and others, 1997(4) RSJ 127 : 1997(4) SCT 411 (P&H); Lastly, he submitted that the judgment in Ram Bhagat Singh v. State of Haryana and another, 1987(5) SLR 127, does not lay down correct law and the order passed by the High Court on 21.11.1995 dismissing C.W.P. No. 4470 of 1994 should be ignored for the purpose of giving relief to the petitioner.

4. In our opinion, none of the submissions made by Shri Lamba can be accepted and no relief can be given to the petitioner because the dismissal of C.W.P. No. 4470 of 1994 filed by him for directing the Commission to recommend his name has been upheld by the Division Bench as well as by the Supreme Court. The relief sought by the petitioner in this case, though worded differently, is, in substance, identical to the one sought in C.W.P. No. 4470 of 1994 and as the order dated 21.11.1995 dismissing that petition has become final, the same will operate as res judicata against the petitioner. The argument of Shri Lamba that the order passed by the Apex Court should be ignored as it does not contain reasons, is clearly misconceived because the petition for Special Leave to Appeal was dismissed by the Supreme Court after hearing the counsel appearing for the parties which shows that their Lordships did not find any error in the judgments of the Single Judge and the Division Bench of this Court.

5. The petitioner's plea that amendment made in the recruitment rules vide notification dated 30.10.1996 should be applied to his case is based on a misconceived assumption that the said amendment is retrospective. The fact, however, is that the said amendment is not retrospective and cannot be applied to the process of selection which was initiated eight years earlier. In C.W.P. No. 821 of 1996 Shiv Kumar v. State of Haryana, a Division Bench took notice of the anomaly in the rules regulating recruitment to the service vis-a-vis Punjab Civil Service (Judicial Branch). The Bench also noticed an earlier decision in Ram Bhagat Singh's case (supra) and held that the anomaly deserves to be removed. Some of the observations made in the order dated 30.1.1996 passed in Shiv Kumar's case are extracted below:

   "It was then contended that there is an anomaly in the rules. Particularly, it was pointed out that a candidate is required to secure 45% marks in the written examination which means that he has to secure 405 marks out of 900. The viva voce test carries 120 marks. Even if a candidate gets 100% marks, his total score shall be 525. To be eligible for appointment, he has to secure 561 marks. Apparently, the contention that there is an anomaly, is well-founded. We, however, find that this anomaly was pointed out through different communications to the State of Punjab.
   Copies of these letters have been produced as Annexures P.3, P.4 and P.5 with C.W.P. No. 9679 of 1995. However, it appears that such a communication was not sent to the State of Haryana. In this situation, it is not surprising that only the State of Punjab has amended the provisions of the rules. So far as the State of Haryana is concerned, necessary amendment in Rule 7 has not yet been made. We direct that the Registrar of this Court shall forward a copy of this order along with the copies of the three letters to the State of Haryana so as to enable it to make necessary amendment in the rule. However, the existence of the anomaly or the correction thereof would be of no consequence so far as the present cases are concerned. In fact, the provision as also the selection was upheld by a Division Bench of this Court in Ram Bhagat Singh v. State of Haryana and another, 1987(5) SLR 127. Consequently, the amendment would be of relevance only in case of subsequent selections. So far as the present dispute is concerned, in spite of the anomaly we find no ground to interfere."

6. In C.W.P. No. 5655 of 1996 Satish Kumar v. State of Haryana and others, decided on 19.11.1996, the Division Bench, to which one of us was a party, again dealt with the same question and directed the Government to amend the Rules within one month. The relevant extract of that order reasons as under:

   "Learned Assistant Advocate General give out that in order to give effect to the observations made by the Division Bench on 30.1.1996 the High Court has already proposed the amendment in the rules and the Government is actively considering such amendment. On October 15, 1996 learned Assistant Advocate General gave out that amendment proposed by the High Court in the rules for recruitment to the Haryana Civil Services (Judicial Branch) will be placed before the Cabinet in its meeting to be held on 16.10.1996 and as soon as the Cabinet approves the same, the amendment shall be published in the official gazette.
   In view of the fact that steps have already been taken by the High Court as well as the State Government to amend the rules, we do not find it appropriate to strike down the rule on the ground that it is arbitrary or unreasonable, particularly when a Coordinate Bench did not feel inclined to strike down the rule but only directed that appropriate amendment be made in the rule and declared that such amendment would be relevant for subsequent selections. Even if we were to express our disagreement with the view taken by the earlier Division Bench in Ram Bhagat's case (supra), it would have become necessary for us to refer the matter to a larger Bench and no effective relief could have been given to the petitioner because the candidates selected by the HPSC in the subsequent selection are not before us and an order directing the appointment of the petitioner at this belated stage would unsettle the settled rights of those who are not before us. For the reasons stated above, we dispose of this writ petition by directing that the appropriate amendment shall be carried out in the rules regulating recruitment to the Haryana Civil Services (Judicial Branch) within one month of this order, in case such amendment has already not been finalised and published. We also hope that the High Court as well as the State Government will consider the desirability of making the amendment effective in such a manner that in the impending recruitment sufficient number of candidates become available to fill the posts which are lying vacant for sufficiently long period. This will go a long way to solve the problem of mounting arrears of cases in the Subordinate Courts."

Major Phalit Sharma, who applied for recruitment to the Haryana Civil Service (Judicial Branch) in pursuance of advertisement No. 7 of 1996, filed Civil Writ Petition No. 868 of 1997 for issuance of a direction to the respondents to treat him eligible ignoring the requirement of 55% aggregate marks. His petition was allowed by this Court and the respondents were directed to give effect to the amendment made vide notification dated 30.10.1996 to the recruitment which was pending at the time of issuance of the notification. The operative portion of the order passed in Major Phalit Sharma v. State of Haryana and others, 1997(4) RSJ 127, reads as under:- "In the result, we allow the writ petitions and direct:

   (i) The Haryana Public Service Commission should prepare a merit list in addition to the list already sent to the Government by including the names of the candidates who have secured marks in the written examination and viva voce as well as aggregate marks in terms of the amended Rules 7 and 8 and make recommendations to the Government and the High Court for the purpose of appointment of the unfilled vacancies/posts of Haryana Civil Service (Judicial Branch).
   (ii) While making recommendations in compliance of the direction No. (i), the Commission shall keep in view the law laid down by this Court in Jas Karan Singh's case and Dr. Abdul Majid's case so far as reserved vacancies are concerned.
   (iii) The necessary exercise shall be completed by the Commission within one month of the submission of certified copy of this order. The State Government and the High Court shall then take the required steps and appointed the selected candidates within next six weeks."

7. A careful reading of the judgment of Major Phalit Sharma's case shows that the Court applied the amendment made vide notification dated 30.10.1996 because at the time of decision of Satish Kumar's case, it was not brought to the notice of the Court that the Rules have already been amended. It is, thus, clear that in terms of the directions given in Shiv Kumar's case (supra) and Satish Kumar's case (supra), the amendment made in the recruitment rules vide notification dated 30.10.1996 could apply only to the pending selections and not to the selection which stood finalised many years before the passing of order in Shiv Kumar's case (supra) i.e. 30.1.1996. If we accept Shri Lamba's argument and direct that the amendment made vide notification dated 30.10.1996 should be given retrospective effect, the selections made pursuant to advertisement No. 3 of 1988 and those made in 1995 will have to be reviewed jeopardising the appointments already made. Some of those who have been appointed on the basis of these selections may be ousted from the service, while others may have to be inducted in the service. Therefore, there is no valid ground to direct the respondents to apply the amendment in the notification dated 30.10.1996 with retrospective effect so as to enable the petitioner to secure appointment to the service.

8. For the reasons mentioned above, the writ petition is dismissed.

CITATIONS : -https://www.manupatrafast.com/pers/Personalized.aspx -www.indiankanoon.com