Punjab-Haryana High Court
Kultar Singh vs Unknown on 30 January, 2014
Author: Rajesh Bindal
Bench: Rajesh Bindal
CWP No. 15645 of 2011 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 15645 of 2011 (O&M)
Date of decision: January 30, 2014.
Kultar Singh
.. Petitioner
v.
State of Punjab and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. H. C. Arora, Advocate for the petitioner (s).
Mr. Suvir Sehgal, Addl. Advocate General, Punjab.
Mr. Kapil Kakkar, Advocate for respondents No. 3 to 11.
...
Rajesh Bindal J.
This order will dispose of three petitions bearing CWP Nos. 15645, 15646 of 2011 and 3825 of 2012, as common questions of law and facts are involved.
Challenge in the bunch of petitions is to the selection and appointment to the post of Information and Public Relations Officer.
Learned counsel for the petitioners submitted that advertisement for 11 posts of Information and Public Relations Officer was issued by the Information and Public Relations Department, Punjab bearing No. PR (01/2009), which was published in 'Ajit' on 11.9.2009. In terms of the advertisement, total 11 posts were advertised, five of which were meant for General Category, one for Scheduled Caste, one for Scheduled Caste (Sportsman), two for Scheduled Caste (BM), one for Scheduled Caste (ESM & others) and one for Backward Class. The educational qualifications required were Master's degree in Public Relations and Journalism or Mass Communications or Journalism from a recognised University or Degree of Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [2] Master of Arts in Punjabi or English from a recognised University and one year Post Graduate Diploma in Mass Communications or Journalism or Public Relations. As provided for in the advertisement, the candidates were required to appear for written test in the process of selection, which was held on 4.7.2010. The interviews were held from 6.12.2010 to 8.12.2010. In July, 2011, the selections were finalised, which are under challenge before this court.
The submission is that in the advertisement issued for selection to the post of Information and Public Relations Officer, no criteria had been laid down, which is a pre-requisite and in fact, had to be decided before the process of selection starts. He further submitted that it has been established from the record on the basis of information received by the petitioners under the Right to Information Act, 2005 (for short, 'the Act') that though part of the criteria for selection was laid down before the process of selection was initiated, however, certain conditions were put in later on. While referring to document (Annexure P-5), a part of the file noting which was obtained under the Act, it was submitted that criteria was initially prescribed by the Departmental Selection Committee in its meeting held on 12.3.2009 before the advertisement was issued, which clearly provided for marks of qualifications/publications, interview etc. Even the Departmental Selection Committee was constituted on 3.6.2009. After the advertisement had been published in the newspaper on 11.9.2009, the file shows that the issue was raised regarding award of marks for rural areas. While referring to an advertisement already issued on 5.9.2007 for recruitment of Teachers, it was mentioned in the office noting that provision had been made for grant of weightage of five marks for the candidates of rural areas. The aforesaid policy was approved by the Cabinet and further that the award of aforesaid marks was even upheld by this Court in Sudesh Rani v. State of Punjab, 2010 (5) SLR 768. While referring to the aforesaid judgment, it was proposed to provide five extra marks to the candidates of rural areas, who passed their Middle and Matriculation examination from rural areas, as a result of which the total marks were increased from 100 to 105. The marks were to be awarded on production of relevant certificates at the time of Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [3] interview. It was further mentioned in the noting that since the provision of aforesaid marks was not there in the criteria already prescribed, approval of the Chief Minister was required. The file was approved by the Chief Minister on 3.10.2010. The same was more than one year after the process of selection started and even the written test, as prescribed in the advertisement, had already been held on 4.7.2010.
In view of the aforesaid factual matrix, the submission is that firstly the award of extra marks for having passed Middle and Matriculation examination from the schools of rural areas was subject-matter of consideration before this Court. A Full Bench of this court in Abhishek Rishi v. State of Punjab and others, 2013 (3) SCT 1 opined that award of extra marks to the candidates having qualification from the schools in rural areas cannot stand judicial scrutiny. The judgment of Division Bench of this Court in Sudesh Rani's case (supra) was specifically over-ruled. He further submitted that rules of the game could not be changed mid-way, as has been done in the present case. It was further submitted that the law declared by the court means that same was the law always. It will apply to all pending cases. The judgment of Full Bench does not state that the interpretation as given will have prospective effect or the earlier Division Bench Judgment in Sudesh Rani's case (supra) has been over-ruled prospectively. Undisputedly, the advertisement was issued on 11.9.2009, whereas the award of extra marks to the candidates having qualifications of Middle and Matriculation from the schools of rural areas was approved by the Chief Minister only on 3.10.2010, when even the written test, as prescribed in the process of selection, had already been conducted.
It was further submitted that though there were 11 members of the Departmental Selection Committee, but still for the interview, separate marks were not awarded by them, as is evident from the document (Annexure P-7), a sheet showing award of marks at the time of interview. Consolidated marks were awarded by the Departmental Selection Committee. That does not show that members of the Departmental Selection Committee had independently judged the candidates.
On the other hand, learned counsel for the State submitted that Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [4] earlier the selection in question was challenged vide CWP No. 22309 of 2010- Inderpreet Singh and another v. State of Punjab and others, which was dismissed on 15.10.2010. The criteria required to be applied for selection of candidates was finalised on 12.3.2009, much prior to the issuance of advertisement. However, he submitted that as in the case of selection of teachers the government had taken a policy decision earlier to award five additional marks to the candidates having passed their Middle and Matriculation examination from the schools of rural areas and the aforesaid policy has been upheld by this court in Sudesh Rani's case (supra), the decision was taken to extend the same benefit to the candidates in the present selection as well. The aforesaid decision was taken after the issuance of advertisement in the present case in terms of the Division Bench judgment of this Court in Sudesh Rani's case (supra), which was pronounced on 20.4.2010. The interviews were held thereafter from 6.12.2010 to 8.12.2010. The merit list was finalised in April, 2011 and even the appointments were made in July, 2011, much prior to the judgment of Full Bench in Abhishek Rishi's case (supra), which was pronounced on 3.4.2013, hence, the selections do not deserve to be set aside on that ground, as the action of the authorities at that time was strictly in terms of the law laid down by this Court in Sudesh Rani's case (supra). It was further submitted that even if the petitioners are awarded five additional marks, they still do not come within the zone of selection.
Learned counsel for the private respondents, while adopting the contentions raised by learned counsel for the State, submitted that initially when the aforesaid criteria for award of five marks for qualifications of Middle and Matriculation from the schools of rural areas was prescribed for selection of Teachers in the year 2007, the same was challenged before this court. Initially, interim stay was also granted, however, later on, the same was vacated. After the Division Bench judgment of this Court in Sudesh Rani's case (supra), general instructions were issued to all the departments for providing five additional marks for qualifications of Middle and Matriculation from the schools of rural areas. These marks were added at the time of preparation of the final select list. However, learned counsel was Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [5] fair enough to admit that the process of selection starts with the issuance of advertisement and the criteria should have been prescribed prior in time. Further, relying upon the Full Bench judgment of this Court in Amarbir Singh v. State of Punjab and others, 2013 (3) SCT 676, it was submitted that even if a Full Bench of this Court in Abhishek Rishi's case (supra) had opined that award of five additional marks for passing Middle and Matriculation examination from the schools of rural areas is illegal, still the judgment has to be applied prospectively, i.e., for any selection to be made thereafter. The selections already made on the basis of existing law should not be disturbed.
Heard learned counsel for the parties and perused the paper book.
The issue under consideration in the present bunch of petitions is whether award of five additional marks to the candidates, who had passed their Middle and Matriculation examinations from the schools of rural areas is legally sustainable, especially when such a condition was not prescribed at the time of issuance of advertisement. Further, as to whether the selections made in terms of the law laid down by this Court in Sudesh Rani's case (supra) are to be upheld when subsequently the aforesaid judgment was over-ruled.
The facts, which are not in dispute are that advertisement for selection to the post of Information and Public Relations Officer and Assistant Information and Public Relations Officer was issued on 11.9.2009 with its publication in 'Ajit'. As is evident from the document (Annexure P-
5), office noting, the criteria for selection had been finalised on 12.3.2009, which is reproduced as under:
"Here it is necessary to mention that the following criteria for direct recruitment process to the post of Information and Public Relation Officer and Assistant Public Relation Officer was prescribed by the Departmental Selection Committee in its meeting held on 12.3.2009 (pre-page-20) under the Chairmanship of the then Hon'ble Chief Minister, Punjab:Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [6]
1. General Knowledge and Multiple Choice questions relating to Punjab. 50% marks
2. Drafting of Press Notes in English and Punjabi language and translation of one paragraph from English to Punjabi language. 25% marks
3. Minimum Educational Qualifications (5% for Ist Division, 3% for Second Division and 2% for Third Division). 5% marks
4. Computer Knowledge 4% marks
a) Degree holder.... 4%
b) Diploma holder..2%
5. Additional Professional Qualifications/ 4% marks Achievements
6. Viva Voce 12% marks As per serial No. 5 aforesaid, 4 marks have been prescribed for "Additional Professional Qualifications/Achievements. For purpose of streamlining these marks, a committee was set up vide office order No. P.R. (A-6)-2010/2157-61 dated 31.3.2010.
Additional Director (Administration) was made the Chairman of this Committee. ADPR, Sh. Upender Singh Lamba and Sh. Megha Singh, Joint Directors were also made the members of this committee. The report submitted by this committee has been placed at page no. 249 and particulars of this report are as under:
Information and Public Relation Officer:-
Essential Qualifications:
Masters Degree in Public Relations and advertising or Mass Communication or Journalism from recognised University:- Or a degree of Masters of Arts in Punjabi or English from recognised University and Post Graduate Diploma of one year in Mass Communication or Journalism or Public Relations.Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [7]
Additional Qualifications:-
(a) M. Phil in English/Punjabi/Journalism 1 mark
(b) Ph.D. In English/Punjuabi/Journalism 1-1/2 mark
(maximum marks 1-1/2 for both)
(c) Published Books 1 mark
(d) Masters Degree in other subject, apart 1-1/2 marks
from the prescribed essential qualifications.
Assistant Public Relation Officer Essential Qualification:
i ) Graduation in any subject from recognised University.
ii) Diploma or Degree in Public Relations and advertising or Mass Communication or Journalism from recognised University.
Additional Qualifications:-
i) M. A. Punjabi/English and M.A. Journalism Ist Division 1-1/2 marks IInd Division 1 mark IIIrd Division ½ mark Special Achievements:
a) Published Book 1 mark
b) Masters Degree in any subject 1-1/2 marks
apart from prescribed Essential
Educational Qualifications
Total Marks 4
------"
Further, what is evident from the office noting is that the Departmental Selection Committee was also constituted vide notification dated 3.6.2009 consisting of the following members:
"(1) Principal Secretary, the Govt. of Chairman Punjab, Information and Public Relation (2) Secretary, Punjab Govt. Personnel Member Department or its representatives Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [8] (3) Representative from Sainik Welfare Member Department (4) Representative from Welfare Department Member (5) Additional Director, Public Relation Member Department (being the Senior most officer of the department) (6) Director, Information & Public Relations Member Department, Punjab Secretary Experts:
1. (a) Editor of Hindustan Times Member
(b) Resident Editor, Indian Express Member Chandigarh
(c) Editor, Punjabi Tribune, Chandigarh Member
(d) Editor Desh Videsh Times Member
2. Head of Department of Journalism and Mass Communication of Punjab University Member"
Though the aforesaid criteria was not mentioned in the advertisement, but still as is evident from the office noting, the same had been prescribed prior to the issuance of advertisement. As provided for in the advertisement, written test in the process of selection was held on 4.7.2010. Even though the judgment in Sudesh Rani's case (supra), which is sought to be relied upon for justifying the selection, had already been pronounced on 20.4.2010, but still prior to the conduct of written test, no provision was made for amending the criteria before the written test was taken. This court is not going into the issue as to whether such an action could be justified or not, but it has been noticed as a fact.
As regards award of five additional marks to the candidates who had passed their Middle and Matriculation examination from the schools of rural areas is concerned, the issue was taken up only on 23.9.2010 and was finally approved by the Chief Minister on 3.10.2010. As there was no such provision in the advertisement, the certificates in support Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [9] of the claim were required to be produced at the time of interview and marks were awarded at the time of preparation of final select list in April, 2011.
No doubt, in Sudesh Rani's case (supra), a Division Bench of this court had upheld the policy of the State for awarding five additional marks to the students, who had passed Middle and Matriculation examination from the schools of rural areas, but the fact remains that Full Bench of this Court in Abhishek Rishi's case (supra), subsequently while over-ruling the judgment of Division Bench of this Court in Sudesh Rani's case (supra), held that award of additional marks to the candidates having passed 10th and 12th standard examination from the schools situated in rural areas in Punjab is ultra vires to the Constitution of India. It was opined that such a provision could not be made in the absence of any quantifiable data available with the State Government, as explained in Kailash Chand Sharma v. State of Rajasthan and others, 2002(3) SCT 938 (SC) and M. Nagaraj and others v. Union of India and others, 2007(4) SCT 664 (SC).
Hence, as far as the issue regarding award of additional marks in the present case to the candidates who had passed their Middle and Matriculation examination from the schools in rural areas is concerned, the same is contrary to the law laid down by Full Bench of this Court in Abhishek Rishi's case (supra), therefore, deserves to be set aside.
In the present case, the process of selection started with the issuance of advertisement on 11.9.2009. The criteria though had not been published in the advertisement, but as is evident from the office noting, it was duly prescribed and approved before the issuance of advertisement. Even Departmental Promotion Committee had also been constituted. It was only after the written test in the process of selection had already been held on 4.7.2010 that a decision was taken to award five additional marks to the candidates who had passed their Middle and Matriculation examination from the schools situated in rural areas. There was no such condition in the advertisement issued. The total marks provided for qualifications, experience and interview were increased from 100 to 105.
The issue as to whether rules of game, namely, the criteria for selection can be altered after the selection process has commenced has been Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [10] gone into by Hon'ble the Supreme Court on a number of occasions and it has been held that change of rules of game during process or after the game had been played, is clearly impermissible. Reference can be made to Maharashtra State Road Transport Corpn. and others v. Rajendra Bhimrao Mandve and others, (2001) 10 SCC 51. In the present case, it is established from the facts on record that the criteria for selection was changed not only after the advertisement had already been issued in terms of the criteria, which had already been finalised, but after the written test had already been held, hence, the selection made on the basis of revised criteria will have to be set aside and the result has to be re-worked out after reducing the extra marks awarded on account of qualification of Middle and Matriculation examination from the schools of rural areas, which was provided for after the selection process had already been started, hence, the selection is bad even on that account.
The contention raised by learned counsel for the respondents that judgment of Full Bench of this court in Abhishek Rishi's case (supra) should be taken to be laying down law for prospective application is to be noticed and rejected. There was no such observation made by the Full Bench of this Court in Abhishek Rishi's case (supra). Even the judgment of Full Bench of this Court in Amarbir Singh's case (supra), which has been cited by learned counsel for the private respondents in support of this argument, provides an answer against him. While referring to various judgments of Hon'ble the Supreme Court on the issue, it was opined that prospective declaration of law is a device innovated to avoid re-opening of settled issues. However, there shall be no prospective over-ruling unless it is so indicated in a particular judgment. The relevant paras thereof are extracted below:
"65. The preposition of doctrine of prospective overruling has been considered in several other decisions as well i.e. Ashok Kumar Gupta v. State of U. P. 1997(2) SCT 381, M/s Raymond Ltd. v. M. P. Electricity Board, 2001(1) RCR (Civil) 330, Somaiya Organics (India) Ltd. and another v. State of U. P. and another (2001) 5 SCC 519, Harsh Dhingra v. State of Haryana 2002(2) RCR (Civil) 450, M. A. Murthy v. State Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [11] of Karnataka and others 2003(4) SCT 251: 2003(7) SCC 517, Dr. Saurabh Choudhary and others v. Union of India and others, 2004(2) SCT 890: 2004(5) SCC 618, Employees State Insurance Corporation and others v. Jardine Henderson Staff Association and others, 2006(3) SCT 691: 2006(6) SCC 581, Amrik Singh Lyallpuri v. Union of India and others 2011 (6) SCC 535.
66. The consistent view of the Supreme Court is that prospective declaration of law is a device innovated to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. The object of prospective declaration of law is that all actions taken contrary to the declaration of law prior to the date of declaration are validated. This is done in larger public interest. According to the Supreme Court, it was a rule of "all judicial craftsmanship with pragmatism and judicial statesmanship as a useful outline to bring about smooth transition of the operation of law without unduly effecting the rights of people who acted upon the law adopted prior to the date of judgment overruling the previous law. There shall be no prospective overruling unless it is so indicated in the particular decision by the Supreme Court under Article 142 of the Constitution. Recently in Bangalore City Cooperative Housing Society Ltd. v. State of Karnataka and others 2012 (3) R. C.R. (Civil) 779: 2012(3) Recent Apex Judgments (R.A.J.) 497: 2012 AIR SC 1395, the Supreme Court has upheld the quashing of the notifications under Sections 4(1) and 6(1) of the Land Acquisition Act, 1894 on the ground that there was no useful scheme approved by the State Government prior to the issue of notifications. In the absence of such approval the land could not be acquired for public purpose.
The society's prayer for invoking the doctrine of prospective overruling in favour of those members of the society who had already constructed the houses may not suffer incalculable Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [12] harm was declined. The Estate Agent had charged huge money from the Society for getting the notifications issued under Sections 4(1) and 6(1) of the 1894 Act and sanction of lay out plan by the BDA. The Supreme Court found no justification to invoke the doctrine of prospective overruling and legitimate the illegal acts committed by the Estate Agent."
[Emphasis supplied] The issue had also been gone into by a Full Bench of this Court in Commissioner of Income-Tax v. Smt. Aruna Luthra, (2001) 252 ITR 76, wherein it was opined that a declaration by the court is-- This was the law, this is the law. This is how the provisions have to be construed. The court merely declares law. An earlier decision by the court is "simply no law". Relevant paras thereof are extracted below:
"A court decides a dispute between the parties. The cause can involve decision on facts. It can also involve a decision on a point of law. Both may have bearing on the ultimate result of the case. When a court interprets a provision, it decides as to what is the meaning and effect of the words used by the Legislature. It is a declaration regarding the statute. In other words, the judgment declares as to what the Legislature had said at the time of the promulgation of the law. The declaration is - This was the law. This is the law. This is how the provision shall be construed.
Julius Stone in Social Dimensions of Law and Justice (First Indian Reprint 1999) (Chapter XIV), while dealing with the subject of Judge and Administrator in Legal Ordering, observes as under:
"If, then, a main impulse underlying the stare decisis doctrine is that justice should respect reasonable reliance of affected parties based on the law as it seemed when they acted, this impulse still has force when reliance is frustrated by an overruling. Despite this, it has long been assumed that a newly emergent Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [13] rule is to be applied not only to future facts, and to the necessarily past facts of the very case in which it emerges, but to all cases thereafter litigated, even if these involved conduct, which occurred before the establishment of the new rule. This has proceeded ostensibly on the conceptual basis, clearly formulated since Blackstone, that the new holding does not create, but merely declares, law. So that any prior putative law under which the parties acted is to be regarded as simply not law". (emphasis supplied). The above observations clearly support the principle that the court merely declares law. An earlier decision as declaredwc by the court is "simply no law".
In the case in hand, nothing has been pointed out from the judgment of Full Bench in Abhishek Rishi's case (supra) that the judgment will have prospective effect. Still further, the selection in the case had not attained finality but were subject-matter of challenge before the court before the judgment in Abhishek Rishi's case (supra) was pronounced. If the criteria followed for selection is considered in the light of law laid down by this Court, the same has to be set aside as to the selected candidates, marks have been awarded for having qualified Middle and Matriculation examination from rural area schools, which has been declared to be ultra vires to the Constitution of India. Selections cannot be upheld at this stage relying on Division Bench judgment of this court, which has been over- ruled. A Full Bench of this Court in Aruna Luthra's case (supra) clearly provides that the court only declared law. An earlier law declared by the court is simply no law. Hence, even this contention of learned counsel for the private respondents is rejected being misconceived.
The contention raised by learned counsel for the petitioners to the effect that all the members of the Departmental Selection Committee had awarded the marks jointly is merely to be noticed and rejected for the reason that there were total 12 marks prescribed for interview and the Departmental Selection Committee consisted of 11 members. In these circumstances, Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document CWP No. 15645 of 2011 [14] assignment of separate marks to each of the member of the Selection Committee was not possible. After a candidate had been interviewed, award of marks in total by the Departmental Selection Committee cannot be faulted with.
For the reasons mentioned above, the writ petitions are allowed. The impugned selections of Information and Public Relations Officer is set aside. The authorities are directed to re-cast the merit list after ignoring five additional marks awarded to the candidates for qualification of Middle and Matriculation examination from the schools in rural areas and offer appointment to the candidates, who fall in the fresh select list as per the vacancies advertised. Necessary exercise be done within a period of three months.
(Rajesh Bindal) Judge January 30, 2014 mk (Refer to reporter) Kumar Manoj 2014.01.31 09:23 I attest to the accuracy and integrity of this document