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Judgment
HARPREET SINGH BRARHARPREET SINGH BRAR, J. (Oral), J. (Oral)
CM-5539-2026
The present application has been filed under Section 151 of CPC for placing on record the letters dated 14.11.2025 and 27.11.2025 as Annexures P-10 and P-11 respectively. In view of the grounds mentioned in the application, the same is allowed, Annexures P-10 and P-11 are ordered to be taken on record, subject to all just exceptions. Registry is directed to place the same at an appropriate place.
MAIN CASES
With the consent of parties, this common order shall dispose of the aforementioned civil writ petitions as they arise from a similar factual matrix and involve identical questions of law. However, for the sake of brevity, the facts are taken from CWP-7837-2025.
This present writ petition has been filed under Article 226/227 of the Constitution of India seeking issuance of an appropriate writ, order or direction, especially a writ in the nature of certiorari, for quashing the result dated 04.01.2025 (Annexure P-7), to the extent that against 48 posts advertised for the post of PGT Home Science (Rest of Haryana Cadre) and 5 posts advertised for PGT Home Science (Mewat Cadre), only 36 candidates have been declared selected for PGT Home Science (Rest of Haryana Cadre) and Nil candidates have been declared selected for PGT Home Science (Mewat Cadre), despite availability of suitable candidates including the petitioners. The petitioners further seek issuance of a writ in the nature of mandamus directing respondent No.3 to declare the petitioners selected for the post of PGT Home Science (Rest of Haryana Cadre) and/or PGT Home Science (Mewat Cadre), as the case may be, pursuant to Advertisement No.27/2024 dated 23.07.2024 (Annexure P-1).
CONTENTIONS
Learned counsel for the petitioner(s), inter alia, contends that the petitioners, being fully eligible candidates, applied for the posts of PGT Home Science pursuant to Advertisement No. 27/2024 dated 23.07.2024 (Annexure P-1) and had opted for the Rest of Haryana (for short “ROH”) Cadre as their first preference (Annexure P-2). The petitioners were issued admit cards (Annexure P-3), appeared in the Subject Knowledge Test (for short “SKT”) and were declared qualified vide result dated 26.09.2024 (Annexure P-4), having secured the prescribed minimum cut-off of 35 marks.
Thereafter, pursuant to announcement dated 23.10.2024 (Annexure P-5), the petitioners appeared in the viva voce and secured 43.30 and 44.65 marks, respectively, as reflected in the Roll Number-wise marks dated 17.11.2024 (Annexure P-6). However, vide result dated 04.01.2025 (Annexure P-7), against 48 advertised posts of PGT Home Science, ROH Cadre and 5 posts of Mewat Cadre, only 36 candidates were selected for the ROH Cadre and no candidate was selected for the Mewat Cadre, despite eligible and suitable candidates, including the petitioners, being available. It is contended that no minimum cut-off marks for final selection, beyond the prescribed SKT cut-off of 35 marks, were fixed by the respondent-Commission. Therefore, withholding the remaining advertised posts and not considering eligible candidates for selection is wholly arbitrary, particularly when the posts continue to remain vacant, and is violative of Articles 14 and 16 of the Constitution of India.
Learned counsel further contends that the action of the respondent-Commission in conducting separate shortlisting for the ROH and Mewat Cadres is contrary to Clause 2(e) of the Scheme/Pattern of Examination contained in Advertisement No. 27/2024 (Annexure P-1), which contemplated calling candidates for interview in the ratio of two times the total number of advertised posts, subject to securing the minimum cut-off of 35 marks. Since 53 posts in all were advertised, 106 candidates ought to have been shortlisted for interview, instead of separately applying the ratio cadre-wise, which resulted in duplication of candidates and ultimately left the Mewat Cadre posts vacant. Therefore, it is submitted that the posts are lying vacant despite the availability of successful candidates, and in case the common candidates who have joined the ROH Cadre have thereby vacated their positions in the merit list for the Mewat Cadre, such vacancies are required to be offered to the candidates next in merit in the respective cadres.
Moreover, it is argued that the posts for the ROH and Mewat Cadres were advertised together and the written examination was common for both cadres, with candidates having applied for both cadres. The respondent-Commission ought to have prepared a common merit list and thereafter allotted the cadre to the selected candidates on the basis of their preferences. The failure to adopt such a process has resulted in an artificial and arbitrary situation whereby eligible candidates have been denied selection and advertised posts have been left vacant, contrary to the terms of the advertisement, public interest and the mandate of Articles 14 and 16 of the Constitution of India.
Learned counsel further submits that, during the pendency of the present writ petitions, the Chief Secretary to Government of Haryana addressed a communication dated 14.11.2025 (Annexure P-10 in CWP-2721-2025) to the Additional Chief Secretary to Government of Haryana, Secondary Education Department, directing the latter to request the respondent-Commission to recommend the remaining eligible but unselected candidates from the Haryana cadre, in order of merit/seniority, for appointment against the vacant posts in the Mewat cadre under Advertisement Nos. 18/2024 to 37/2024. Pursuant thereto, the Additional Chief Secretary, Secondary Education Department, vide letter dated 27.11.2025 (Annexure P-11 in CWP-2721-2025), requested the respondent-Commission to fill the unfilled vacancies in the Mewat cadre under Advertisement Nos. 19/2024 to 37/2024 by recommending the next eligible unselected candidates in order of merit since they had applied under the same advertisements and had indicated the Mewat cadre as their second preference.
Per contra, learned counsel appearing on behalf of the respondent-Commission submits that although the petitioners had applied for the post of PGT Home Science under both the Rest of Haryana (ROH) and Mewat cadres, they were called for interview only under the ROH cadre. It is contended that the petitioners did not fall within the prescribed zone of consideration for the Mewat cadre, which was limited to candidates up to two times the number of advertised vacancies, in terms of the scheme and pattern of examination contained in the advertisement. Consequently, their candidature was considered only against the ROH cadre. The final result for the post of PGT Home Science was declared on 04.01.2025 (Annexure P-7) and since the petitioners secured marks lower than the last selected candidates in their respective categories under the ROH cadre, they were not selected.
As regards to the petitioners’ contention that a combined merit list ought to have been prepared for the ROH and Mewat cadres, learned counsel submits that although a common SKT was conducted for both cadres, separate results were declared in view of the fact that a large number of candidates had qualified for both. Thereafter, candidates were allocated to the respective cadres in accordance with the preferences indicated by them in their application forms. Consequently, several candidates who were selected in both cadres opted to join the ROH cadre in terms of their preference, resulting in certain vacancies remaining unfilled in the Mewat cadre. Learned counsel argues that the petitioners have failed to point out any provision in the advertisement or the governing recruitment rules mandating the preparation of a combined merit list for both cadres.
It is further contended that the petitioners did not raise any objection at any stage of the recruitment process and remained silent until the declaration of the final result. Having voluntarily participated in the selection process without protest, they are now estopped from asserting any claim against the vacant posts in the Mewat cadre. In support of the said contention, reliance has been placed upon the judgment of the Hon’ble Supreme Court in Madras Institute of Development Studies and another v. Dr. K. Sivasubramaniyan and others, AIR 2015 SC 3643, wherein it was held that a candidate who has consciously participated in a selection process cannot, after being unsuccessful, turn around and challenge the very process in which he had willingly participated.
Moreover, learned counsel argues that upon declaration of the result, the Commission becomes functus officio and has no authority to make any further recommendation. It is submitted that any decision regarding the filling up of the remaining vacancies falls within the domain of the concerned Department/employer. He further submits that the record pertaining to the credentials of all the candidates shall be made available to the concerned Department within a period of four weeks.
OBSERVATIONS & ANALYSIS
I have heard the learned counsel for the parties and perused the record with their able assistance. It is no longer res integra that mere inclusion of a candidate’s name in a selection list does not confer an indefeasible right to appointment. The State or the recruiting authority is not bound to fill up all the advertised vacancies and may, for valid and justifiable reasons, decide not to do so. However, such a decision cannot be arbitrary, unreasonable, or founded on extraneous considerations; it must reflect a conscious and bona fide application of mind to the relevant facts and circumstances. Reliance in this regard may be placed on the Constitution Bench judgment of the Hon’ble Supreme Court in Shankarsan Dash v. Union of India, 1991(2) SCT 555, and the judgment of a two-Judge Bench in Manoj Manu v. Union of India, 2013(4) SCT 532.
In Manoj Manu (supra), the Union Public Service Commission (UPSC) had recommended 184 candidates for appointment to the post of Section Officer. Out of them, six candidates did not join. Although a reserve list of eligible candidates from the same selection process was available, the UPSC recommended only three candidates against the resultant six vacancies, leaving the remaining three posts unfilled. The Hon’ble Supreme Court held that the decision of the UPSC to forward only three names despite a requisition from the Department of Personnel and Training (DoP&T) to fill all six vacancies was without any valid reason or justification. Speaking through Justice A.K. Sikri, the following was held:
“11.It can be clearly inferred from the reading of the aforesaid that it is not the case where any of these persons initially joined as Section Officer and thereafter resigned/left/promoted etc. thereby creating the vacancies again. Had that been the situation viz. after the vacancy had been filled up, and caused again because of some subsequent event, position would have been different. In that eventuality the UPSC would be right in not forwarding the names from the list as there is culmination of the process with the exhaustion of the notified vacancies and vacancies arising thereafter have to be filled up by fresh examination. However, in the instant case, out of 184 persons recommended, six persons did not join at all. In these circumstances when the candidates in reserved list on the basis of examination already held, were available and DoP&T had approached UPSC"within a reasonable time"to send the names, we do not see any reason or justification on the part of the UPSC not to send the names.
12.We are conscious of the legal position that merely because the name of a candidate finds place in the select list, it would not give him/her indefeasible right to get appointment as well. It is always open to the Government not to fill up all vacancies. However, there has to be a valid reason for adopting such a course of action. This legal position has been narrated by this Court in Ms. Neelima Shangla v. State of Haryana, (1986) 3 SCR 785. In that case:
The appellant was the candidate for appointment to the post of Subordinate Judge in Haryana. Under the scheme of the Rules, the Public Service Commission was required to hold first a written test in subjects chosen by the High Court and next a viva voce test. Unless a candidate secures 45% of the marks in the written papers and 33% in the language paper, he will not be called for the viva voce test. All candidates securing 55% of the marks in the aggregate in the written and viva voce tests are considered as qualified for appointment. The appellant though secured 55% of the marks was not appointed as her name was not sent by the Public Service Commission to the Govt. The Supreme Court in such fact situation found that the Public Service Commission is not required to make any further selection from the qualified candidates and is, therefore, not expected to withhold the name of any qualified candidate. The duty of the Public Service Commission is to make available to the Govt., a complete list of qualified candidates arranged in order of merit. How should Govt., act is stated by the Supreme Court in the following words:
"Thereafter the Government is to make the selection strictly in the order in which they have been placed by the Commission as a result of the examination. The names of the selected candidates are then to be entered in the Register maintained by the High Court strictly in that order and appointments made from the names entered in that Register also strictly in the same order. It is, of course, open to the Government not to fill up all the vacancies for a valid reason. The Government and the High Court may, for example, decide that, though 55 per cent is the minimum qualifying mark, in the interests of higher standards, they would not appoint anyone who has obtained less than 60 per cent of the marks."
(Emphasis supplied)
13.The Court after making reference to the decision of the Supreme Court in the case of State of Haryana v. Subhash Chander Marwah, reported in (1972) II LLJ 266 SC further observed as under:
"However, as we said, the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. There must be a conscious application of the mind of the Govt., and the High Court before the number of persons selected for appointment is restricted. Any other interpretation would make Rule 8 of Part D meaningless."
(Emphasis supplied)
14.It is, thus, manifest that though a person whose name is included in the select list, does not acquire any right to be appointed. The Government may decide not to fill up all the vacancies for valid reasons. Such a decision on the part of the Government not to fill up the required/advertised vacancies should not be arbitrary or unreasonable but must be based on sound, rational and conscious application of mind. Once, it is found that the decision of the Government is based on some valid reason, the Court would not issue any Mandamus to Government to fill up the vacancies.
15.In the present case, however, we find that after the UPSC sent the list of 184 persons/recommended by it, to the Government for appointment six persons out of the said list did not join. It is not a case where the Government decided not to fill up further vacancies. On the contrary DoP&T sent requisition to the UPSC to send six names so that the remaining vacancies are also filled up. This shows that in so far as Government is concerned, it wanted to fill up all the notified vacancies. The requisition dated 20th November 2009 in this behalf was in consonance with its Clause 4(c) of O.M. dated 14th July 1967. Even when the Government wanted to fill up the post, the UPSC chose to forward names of three candidates.
16.There is a sound logic, predicated on public interest, behind O.M. dated 14th July 1967. The intention is not to hold further selection for the post already advertised so as to save unnecessary public expenditure. At the same time, this very O.M. also stipulates that the Government should not fill up more vacancies than the vacancies which were advertised. The purpose behind this provision is to give chance to those who would have become eligible in the meantime. Thus, this OM dated 14th July 1967 strikes a proper balance between the interests of two groups of persons. In the present case since the requisition of the DoP&T contained in communication dated 20th November 2009 was within the permissible notified vacancies, the UPSC should have sent the names of six candidates instead of three.
17.This Court in Sandeep Singh v. State of Haryana & Anr. (2002) 10 SCC 549 commended that the vacancies available should be filled up unless there is any statutory embargo for the same. In Virender S. Hooda & Ors. v. State of Haryana & Anr., 1999(2) S.C.T 652 : AIR 1999 Supreme Court 1701, 12 posts for direct recruitment were available when the advertisement for recruitment was made which was held in the year 1991. Some of the selected candidates did not join in this batch almost similar to the present case, the Court held that the appellant's case ought to have been considered when some of the candidates for reasons of the non- appointment of some of the candidates and they ought to have been appointed if they come within the range of selection.”
(Emphasis added)
Adverting to the facts of the present case, the posts in both the ROH and Mewat Cadres were admittedly advertised together vide Advertisement No. 27/2024 dated 23.07.2024 (Annexure P-1). The respondent-Commission conducted one common selection process for candidates of both cadres with a common screening test and Subject knowledge test, and the candidates were required to indicate their preference in their application form. In such circumstances, the respondent-Commission must have foreseen or ought to have reasonably anticipated that a candidate could feature in the merit list of both cadres simultaneously. Such a candidate, however, cannot in practical or legal terms occupy two posts at once. Once such a common candidate exercises his option and joins the ROH Cadre, his selection qua the Mewat Cadre becomes incapable of fructifying into an appointment. The consequence therefore, is not that the Mewat post ceases to exist or lapses; rather the post was never substantively filled.
Accordingly, this Court is of the considered view that the vacancies remain in the Mewat Cadre are not fresh or future vacancies arising after the recruitment process is completed. They continue to be the very vacancies that formed part of the original advertisement and the original selection process. The petitioners’ claim is not, therefore, for a subsequent or additional vacancy falling outside the scope of advertisement; rather it is a claim for completion of the selection already undertaken pursuant to that very advertisement.
Thus, where a common candidate figuring in the merit list of both cadres, opts for and joins the ROH Cadre, the resultant vacancy in the Mewat Cadre must be offered to the candidate next in order of merit. This does not require a fresh combined exercise; it only requires the respondent-Commission to give full effect to the merit list. To permit the post to lie vacant in these circumstances, when candidates otherwise eligible and available on that very list stand ready to be considered, would allow one candidate to notionally occupy two posts merely because the Commission chose to draw up two separate select lists from a single common examination. The aforesaid approach confers an undue benefit on the joining candidate and correspondingly and arbitrarily forecloses consideration of the next eligible candidate. Such an outcome cannot be reconciled with Articles 14 and 16 of the Constitution of India, which require public employment to be filled strictly according to merit, and do not countenance an advertised and competed-for post being left unfilled for reasons extraneous to the merit of available candidates.
Significantly, this is not a case where a selected candidate joined the Mewat Cadre and the vacancy arose thereafter on account of his resignation or subsequent exit, a situation which, as Manoj Manu (supra) itself recognises, stands on a different footing, since the notified vacancies would then stand exhausted and any subsequent vacancy would require a fresh examination. Here, the common candidates never joined the Mewat Cadre at all and exercised their option in favour of ROH cadre at the very threshold. The Mewat cadre posts, therefore, never went out of the pool of vacancies notified under the advertisement. Filling such vacancies from the next candidate in order of merit does not enlarge the sanctioned or advertised strength. Rather, it merely completes the selection for which the recruitment was undertaken. The aforesaid view is squarely consistent with the ratio in Manoj Manu (supra), that it is the duty of the recruiting body to make available a complete list of qualified candidates and not to withhold the name of such candidates without a valid reason.
This Court also finds it necessary to notice that the respondent-State itself does not appear to view the matter differently. The Chief Secretary to Government of Haryana, vide communication dated 14.11.2025 (Annexure P-10), directed the Additional Chief Secretary, Secondary Education Department, to request the respondent-Commission to recommend the remaining eligible but unselected candidates from the ROH cadre, in order of merit/seniority, against the vacant Mewat cadre posts under Advertisement Nos. 18/2024 to 37/2024; and pursuant thereto, the Additional Chief Secretary, vide letter dated 27.11.2025 (Annexure P-11), requested the respondent-Commission to fill the unfilled Mewat cadre vacancies under Advertisement Nos. 19/2024 to 37/2024 by recommending the next eligible unselected candidates in order of merit. This administrative course of action initiated by the respondent-State during the pendency of these proceedings, lends further support to the view that the unfilled Mewat posts are to be treated as unconsumed advertised vacancies, rather than as vacancies that have lapsed or require a fresh advertisement.
Moreover, the reliance placed by learned counsel for the respondent-Commission on Madras Institute of Development Studies (supra) is wholly misplaced. In this regard, reference must be made to the judgement rendered by a two-Judge Bench of the Hon’ble Supreme Court in Mohit Kumar vs. State of U.P. 2025 SCC Online SC 1125, wherein the Court, after considering its earlier decision in Dr. (Major) Meeta Sahai vs. State of Bihar and others (2019) 20 SCC 17, categorically held that if the procedure followed by the selecting body/appointing authority is such that the same is in breach of constitutional safeguards, a candidate’s challenge to the procedure may not be rejected merely on the ground that he has participated in the process. It was observed that a candidate cannot always be expected to anticipate an illegality in the selection process before the declaration of the result. If the illegality becomes apparent only upon publication of the select list or at a subsequent stage, the candidate is not precluded from assailing the selection merely because he/she had participated in the process. The relevant observations of the Hon’ble Supreme Court, speaking through Justice Dipankar Datta, are reproduced below:
“19.It is no longer res integra that terms of an advertisement issued in connection with a selection process are normally not open to challenge unless the challenge is founded on the ground of breach of Article 16 of the Constitution or, for that matter, Article 14. Once an advertisement is issued inviting applications for public employment, it is the responsibility, nay duty, of an aspirant to read and note the terms and understand what its requirements are. If any aspirant finds any of the terms ambiguous and there is scope for an inquiry inbuilt in the advertisement or is provided by any rule/regulation, an effort ought to be first made to obtain clarity for understanding the requirements accurately. If no such scope is available, nothing prevents the aspirant from seeking clarity by making a representation. Should such clarity be not provided, the aspirant may participate in the process without prejudice to his rights and may question the term even after he is not selected. However, if the aspirant does not make any such effort and takes a calculated chance of selection based on his own understanding of the disputed term in the advertisement and later, he emerges unsuccessful, ordinarily, it would not be open to him to challenge the selection on the ground that the disputed term is capable of being understood differently. In such cases, the courts should be loath to entertain such plea of ambiguity while preferring to accept the recruiting authority's understanding of the said term. This is for the simple reason that the recruiting authority is the best judge of what its requirements are and it is such understanding of the recruiting authority that would matter most in cases brought up before the courts; hence, after commencement of the process wherein aspirants have participated without raising any demur as to what a particular terms means, even if any of the terms be ambiguous, the courts should lean in favour of the recruiting authority.
20.We are conscious of what this Court observed in paragraphs 15 to 19 of its decision in Meeta Sahai v. State of Bihar, (2019) 20 SCC 17 under the heading 'Preliminary Issues'. If the procedure followed by the selecting body/appointing authority is such that the same is in breach of constitutional safeguards, an aspirant's challenge to the procedure may not be nipped in the bud only on the ground that he has participated in the process. We also read the decision as recognizing that it may not always be possible for an aspirant to foresee any illegality in the procedure followed, till such time the select list is published. In all such cases where the illegality could not have been foreseen, a challenge to the procedure cannot be spurned on the specious ground that the aspirant having participated in the process, he has forfeited his right.” (Emphasis added)
CONCLUSION
In view of the foregoing discussion, the present writ petitions are disposed of in the following terms:
a. The respondents/competent authorities are directed to consider the claim of the petitioners for appointment/selection against the available vacancies in the Mewat Cadre, in accordance with the applicable rules, the terms of Advertisement dated 23.07.2024 and the merit of the eligible candidates.
b. It is, however, clarified that while undertaking the aforesaid exercise, the respondents shall not fill up those posts that are subject to any subsisting interim order passed by a competent Court in any pending litigation.
c. The learned State counsel submits that a period of at least three months will be required for undertaking the aforesaid exercise and taking an appropriate decision. In view of the aforesaid stand, the respondents/competent authorities shall consider the claim of the petitioners in accordance with law and take an appropriate decision within a period of three months from the date of receipt of a certified copy of this order. Needless to say, the decision so taken shall be communicated to the petitioners forthwith.
d. Further, the respondent-Commission shall furnish the complete record to the concerned Department relating to the credentials of all the candidates, along with all other relevant documents and information necessary for compliance with this order, within a period of four weeks from the date of receipt of a certified copy of this order.
e. In case the claim of any of the petitioners is considered favourably by the competent authority, the petitioners shall be entitled to all consequential notional benefits strictly in accordance with their merit and the applicable rules. However, they shall not be entitled to actual arrears of salary for the period during which they have not rendered service, and the actual salary and other monetary benefits shall be payable only from the respective date of their joining pursuant to such appointment.
Pending miscellaneous application(s), if any, shall also stand disposed of. Photocopy of this order be placed on the files of connected case(s).