- (1.) Sh. Satvir Singh Ahlawat, Additional Secretary, Haryana Vidhan Sabha has challenged the appointment of Sh. Sumit Kumar as Secretary, Haryana Vidhan Sabha, in this petition under Articles 226/227 of the Constitution of India.
(2.) A reference to the relevant facts for the purpose of adjudication of the disputed question is necessary. Sh. Sumit Kumar, who was working as Assistant Advocate-General, Haryana, was appointed by transfer to the post of Secretary, Haryana Vidhan Sabha, vide order dated April 3, 1989. The appointment was subject to the approval of the Haryana Public Service Commission. On March 5, 1990, another order was issued saying that the appointment of Sh. Sumit Kumar w.e.f. April 4, 1989 (forenoon) be made with the approval of the Public Service Commission by relaxing the requirement of experience as laid down in Entry No. (ii) under Column 4 against Serial No. 1 of Appendix 'B' to Rule 8 of the Haryana Vidhan Sabha Secretariat Rules, 1981. On successful completion of probation period of one year, Sh. Sumit Kumar was confirmed as Secretary, Haryana Vidhan Sabha, vide order dated June 16, 1990. The confirmation was subject to the final decision of C.W.P. No. 2528 of 1985 pending in this Court. Challenge to the appointment of Sh. Sumit Kumar as Secretary, Haryana Vidhan Sabha, has been made on the ground that the petitioner was eligible for appointment as Secretary and his claim was ignored. The amendment to the Rules was contrary to the provisions of Article 187 of the Constitution. Shri Sumit Kumar was not eligible for appointment as Secretary, Haryana Vidhan Sabha, on the date the vacancy arose.
(3.) Written statements have been filed by the Haryana Vidhan Sabha Secretariat and also by Shri Sumit Kumar. A preliminary objection has been taken in the written statement filed on behalf of the Haryana Vidhan Sabha Secretariat that the petitioner, who was working as Joint Secretary, Haryana Vidhan Sabha, was holding the additional charge of the post of Secretary, Haryana Vidhan Sabha. He was relieved of the additional charge on 4th April, 1989 on the appointment of Shri Sumit Kumar as Secretary, Haryana Vidhan Sabha, vide order dated April 3, 1989. The writ petition challenging the appointment of Sh. Sumit Kumar was filed on April 1, 1991 when he had already been confirmed on the post of Secretary w.e.f. April 4, 1990. The petitioner is seeking a writ a quo warranto and the same is liable to be dismissed on the sole ground of delay and laches. On merits, it is pleaded that the Governor of Haryana, in exercise of powers conferred by Clause (3) of Article 187 of the Constitution of India, after consultation with the Speaker, Haryana Vidhan Sabha, made rules regarding the appointment and conditions of service of persons appointed to the Haryana Vidhan Sabha Secretariat Service (for short, the Service). These rules were amended by the Governor of Haryana in consultation with the Speaker of Haryana Vidhan Sabha under Article 187 of the Constitution of India. Rule 9 relates to the method of recruitment to any service. Rule 9 was amended, vide notification No. G.S.R. 5/Const./Article 187/85, dated January 11, 1985 and the amended rule reads, thus, "9. Method of recruitment :- (1) Recruitment to service shall be made - (i) by direct recruitment; or (ii) by promotion; or (iii) by transfer or deputation of an officer/official already in the service of any State Government or the Government of India. (2) The appointing authority shall determine the method of recruitment as and when a vacancy arises. 4. In the said rules, in Appendix B, against Serial Number 1 :- (a) under column 3, in entry (2), after the words 'Legislative Assembly', the words 'or ten years practice at the Bar' shall be inserted; (b) under column 4, for the existing entry, the following entries shall be substituted, namely :- (i) In case of appointment by promotion, Law Graduate with five years experience as Deputy Secretary in the Haryana Vidhan Sabha Secretariat; (ii) In case of appointment by transfer of an officer already serving the State in a substantive permanent capacity as Deputy Advocate-General/Senior Deputy Advocate-General, who is duly qualified to be appointed as Public Prosecutor; (iii) In the case of appointment by deputation of an officer already serving the State as member of Haryana Superior Judicial Service in substantive permanent capacity." This rule envisages three methods of recruitment and it is for the State Government to choose any of the methods for filling the vacant posts. The State Government decided to fill the post of Secretary, Haryana Vidhan Sabha by way of transfer of an officer already in the Service of the State Government. Reference to the Rules has been made in the written statement to establish that the appointment of Sh. Sumit Kumar as Secretary, Haryana Vidhan Sabha was in conformity with the rules.;