Punjab-Haryana High Court
Sarabdeep Kaur vs State Of Punjab And Ors on 16 December, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.14610 of 2012
:1:
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.14610 of 2012
Date of decision: 16.12.2014
Sarabdeep Kaur
... Petitioner
Versus
State of Punjab and another
... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.P.S.Khurana, Advocate,
for the petitioner.
Mr.Rajiv Prashad, Addl. AG, Punjab
*****
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
This case does not turn on law. It turns on facts. This is the 4th round of litigation the petitioner has suffered looking for a job she competed for successfully in direct recruitment in 2006, with two earlier writ petitions and a contempt petition filed in this Court by her pursuing the subject relief but never losing heart. The petitioner has been knocking at the doors of this Court for long trying to secure an appointment as a Head Mistress on the strength of her merit position in the select list in the women category falling at Serial No.106 against the 108 posts advertised in the Punjab education department. She has been in a seesaw of candidates falling in and falling PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 :2: out while she was precariously poised on the fringe of the merit list. Her name was in the twilight zone and in the shifting sands. Just as hard as she has been chasing her rightful due, the officers of the State in charge of affairs have with equal force denied her rightful due and which is so easily demonstrated by her counsel by a simple calculation of advertised vacancies on his finger tips and their filling up. But respondents have been recalcitrant and in no mood to relent in their litigative stamina which may have exhausted the best of us and to give up the chase for peace and quiet. She is before the court the 4th in time and in despair clutching as it were to the last straw, stuck in quicksand looking for the hand of justice held out to her to pull her out. Below are reasons why I would rescue her from the morass and allow her claim and grant her the desired relief with costs to secure her a consideration for an appointment as a teacher.
2. It is not disputed by the State and is asserted by the petitioner that some advertised vacancies were not filled on account of non-acceptance of offers of appointment by some of the selected candidates and cancellation of appointment offers to some ineligible candidates issued in mistake and upon discovery of ministerial errors committed by the functionaries of the State Government remain vacant and unfilled sufficient to accommodate the petitioner.
3. Briefly stated, the facts which are necessary to dilate are that 215 posts of Head Masters/Head Mistresses were advertised on 1st October, 2006 in the general category to be filled in the ratio of 50:50 each from amongst the female and male candidates. Selection done, the merit list was prepared and published in the daily print media on 21st November, 2006 PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 :3: where the name of the petitioner figured at Serial No.106. Thus, she was well within the zone of consideration amongst 108 posts for female candidates [fractions favouring ladies]. However, the petitioner was not offered an appointment. She made a representation in December, 2006 to the Government asking it to redress her grievance and appoint her as per merit. Meanwhile, a public notice appeared in the newspapers informing the stakeholders that the department had planned an exercise for preparing a waiting list to recruit candidates on the available unfilled posts lying in the department to the extent of 10 percent of the advertised vacancies. This notice was made public on 21st December, 2006. The petitioner responded to this opportunity and in this exercise was assigned registration number 1314. It transpired that two of the candidates namely Saloni Mehta and Bhupinder Kaur at merit positions 15 and 54 did not join the posts of Head Mistresses as the former was happy to continue working as a Math Mistress in a Government school while the latter was not prepared to give up her post of Lecturer in Chemistry in another Government school, both of which were in Tehsil Jagraon, District Ludhiana. This exercise yielded no benefit to the petitioner which she expected and for the mythical call from a Government office she eagerly waited for but which never came.
4. This led to the first round of litigation. The petitioner filed CWP No.5827 of 2009 claiming appointment. It came up for hearing on 29th April, 2009 and the following directions were issued while disposing of the matter:
"In view of the above, this petition is disposed of with a direction to the respondents to take decision PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 :4: on the legal notice of the petitioner and if, there is no legal impediment the appropriate order for appointment of the petitioner may be issued, if the petitioner stands selected and the vacancies are available. However, in the event the claim of the petitioner is to be rejected, the same shall be by a reasoned and speaking order.
Let the entire exercise be completed within a period of three months from the date certified copy of this order is served upon the competent authority."
5. When the directions were not obeyed the petitioner filed a contempt petition bearing No.1533 of 2009. This was the second round of litigation. After notice was issued in the contempt petition, an order dated 29th September, 2009 was passed and produced in Court rejecting the case of the petitioner. The petitioner says the rejection was on flimsy grounds. Faced with the adverse order and feeling aggrieved by it the petitioner returned to Court to assail the order which was adverse to her interest.
6. This led to the third round of litigation. The petitioner approached this Court in CWP No.19055 of 2009 on which notice was issued to the State and the case remained pending and contested when the petitioner obtained information under the Right to Information Act, 2005 through various letters of the PIO between 11th February, 2010 and 13th July, 2011 which when received by her were placed on record of the petition as Annexures P-14 to P-17. There were material admissions in this correspondence which revealed that in February, 2010, 22 posts remained unfilled. While another letter of the same month disclosed 10 unfilled PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 :5: vacancies. There was clear admission by the respondents that one post remained unfilled when Ms.Alka Gupta at merit position No.50 did not join service. In the July, 2011 letter, within the information supplied by the PIO there was a mention that one Ms.Shivani Gupta also did not join. This was due to a dispute with respect to Shivani Gupta's eligibility which was settled against her. Therefore, the post was not offered.
7. At the end of three years of despair, CWP No.19055 of 2009 was disposed of on 12th January, 2012 by the learned Single Judge by passing the following order : -
"The petitioner applied for the post of Head Mistress in response to the advertisement No.1/October, 2006 and her name was included in the final merit list at Serial No.106 published in the News Paper on 21.10.2006 but later on she was shown in the waiting list as the claim of three other candidates was accepted and they were brought in the main merit list. Resultantly, the name of the petitioner did not figure in the select list of 106 candidates to the extent of advertised posts.
Ordinary, a candidate whose name figures in the wait list has no right to seek appointment if the candidates in the main selection list have occupied the advertised posts. The petitioner has, however, placed on record the information received under the Right to Information Act on 2.2.2010 (Annexure P-15), according to which the candidates shown at Serial Nos.16, 40, 42, 44, 50, 55, 59, 82 and 97 of the select list did not join the post. If that is so, there appears to be some merit in the contention of learned counsel for the petitioner that the next candidate in order to merit ought to have been offered appointment against the advertised posts which remained unfilled due to non-joining of the selected candidates.
Since the above information obtained under the RTI has been placed on record by the petitioner after the filing of the PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 :6: reply-affidavit by the respondents, I deem it appropriate to dispose of the writ petition with a direction to the respondents to verify the above mentioned claim and if the name of the petitioner is in the wait list at No.1, to consider her for appointment subject to other eligibility conditions. The respondents shall dispose of the petitioner's claim within a period of four months from the date of receipt of a copy of this order. Suffice it to say that in the event of appointment, the petitioner shall be entitled to notional benefits only.
Except for the above directions, the writ petition stands disposed of."
8. This was the first time that the Court understood her problem, removed the wheat from the chaff and ordered an effective re-consideration exercise to examine important fresh material placed before it. The State was relentless in its pursuit to hound the petitioner. Despite the clear remand directions reproduced above the State did not address the core issues delineated by court and rejected her case once again on flimsy grounds. This how the impugned order dated 11th May, 2012 was passed rejecting her claim once again leading to the 4th round of litigation, which is the present petition, challenging the impugned order. Its length having nothing to do with the quality of reasons supplied. The order was mostly deaf, dumb and blind.
9. The absurd reason for rejection is based on the ground that no waiting list of general category (female) was prepared by the respondents. To refute the statement, the petitioner has placed on record Annexure P-20 a documented communication dated 8th November, 2011 received under the Right to Information Act, 2005 to show that a waiting list indeed was PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 :7: prepared for male, female and physically handicapped categories. The grounds of rejection were unfortunately falsified by the department's PIO by supplying information. This is sad as the writ court expects the burden of proof of claims brought before court to be discharged by the petitioner. If a material document is withheld, information of vacancies not notified from time to time, a person in order to substantiate a claim in a court of law for lack of possession of documents may lose a just cause. The department was clearly working against her interest and to scuttle her rights.
10. In the written statement filed by the State in defence of the petition and in support of the impugned order dated 11th May, 2012, it is pleaded that of the various posts advertised including 431 posts of Head Masters/Head Mistresses, 108 posts were meant for candidates who belonged to the category of female general against which the petitioner applied and competed. The merit position achieved by the petitioner as per the prescribed criteria was 69.94. It is not disputed that the petitioner's name fell at serial No.106 and was within 108 vacancies initially advertised. However, this result was got revised and as per revised result, the merit of the last selected candidate in the category of female general is 69.97 while the petitioner rests at 69.94. Therefore, the petitioner' name could not find place in the final selection list for the posts of Head Mistress on account of her being lower in merit than the last selected candidate in her category. It has been denied if any waiting list was maintained. It is not factually disputed that the last appointment under 2006 advertisement were offered by the respondent-State in 2012 when the present petition was brought. PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 :8:
11. On 1st August, 2013, this Court passed the following order : -
"CM No. 10817 of 2013:
Application is allowed as prayed for. The additional affidavit of the petitioner along with Annexures P-21 & P- 22 are taken on record.
CM disposed of.
Main case:
The petitioner had applied for the post of Head Mistress in response to an advertisement issued in October, 2006 against the general category. Apart from raising other grounds, the categoric averments made in para 14 of the writ petition is that a candidate namely Shivani Gupta also belonging to the general category, whose name figured in the select list was ineligible and accordingly, was not permitted to join on the post of respondent-department. Clearly, such post had to be offered to the next candidate in order of merit which happens to be the petitioner. In the written statement filed on behalf of the State, there is no denial as regards the ineligibility of Shivani Gupta (general category) as also of the fact that she never joined on the post. It is also the case made out on behalf of the petitioner that two other candidates even though eligible and having been offered appointment as per merit had chosen not to join.
Resultantly, the claim of the petitioner for being appointed to the post of Head Mistress is based on merit and not on account of her name figuring at Sr. No. 1 in the waiting list.
Mr. Pankaj Mulwani, learned Deputy Advocate General, Punjab shall complete instructions in regard to such factual position positively within a period of 10 days. List on 14.08.2013."PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 :9:
12. The time-bound period fixed in the order was not obeyed and on 14th August, 2013 the State was directed to file a specific affidavit in terms of the earlier order. The same was required to be done within 4 weeks and the matter was posted for 11th October, 2013. On 11th October, 2013, an additional affidavit of the Deputy Director (SA) was filed. In the affidavit, it is admitted that Ms.Shivani Gupta's appointment letter was withheld at the stage of offer of appointment on detection that she was ineligible since she lacked the requisite experience prescribed for the post. She was not permitted to join and thereafter left the race. It is sequitur that her post is still lying vacant unless shown to the contrary, which is not the case.
13. The respondents have explained how a shortfall in selected candidates occurred in the recruitment process which was ascribed as lack of interest in joining the posts not being pensionable. The spoilsport was condition No.15 of the appointment letter which denied pension on the existing pension/family pension scheme and the provisions of the New Contributory Scheme to be notified by the Government shall be applicable. It has been explained that certain selected candidates who did not submit their joining in the year 2006 for the reason of availability of only the less attractive CPF scheme had approached the Court with a prayer to allow them to submit joining in terms of Government letter dated 24th October, 2008 by which condition No.15 was relaxed and its operation exempted for the employees as were earlier serving in the Government prior to 1st January, 2004 when the transition took place from pension to CPF. This is how some of the vacant posts were filled. It is then urged in the additional PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 10 : affidavit in paragraph 6 that if the Department declared Shivani Gupta ineligible, even then the claim of the petitioner is not sustainable as there is present one more unselected candidate namely Kawaljit Kaur whose merit is higher than the petitioner. Kawaljit Kaur secured 69.97 while the merit of the last candidate selected was 70.015.
14. A reading of the additional affidavit fails to disclose that the purpose of the interim order dated 1st August, 2013 has been served. I think not. The real question was of availability of vacancies remaining unfilled within the advertised posts and not by operation of waiting list where no rights may accrue as pointed out in the order dated 12th January 2012 quoted supra where the Court had categorically said that ordinarily, a candidate whose name figures in the wait list has no right to seek appointment if the candidates in the main selection list have occupied the advertised posts. Therefore, the case of the petitioner was not expected to be considered from the angle of waiting list but on inter se merit in the main selection list against 107 posts provided there was vacancy within that number where her claim could be adjusted. The petitioner was at position
106. When in the review exercise 3 candidates were brought in by ouster of those found ineligible or those who dropped out of the race on failure to except the offers of appointment.
15. It is recalled from interim orders in the order sheets that during the course of arguments on 3rd November, 2014, it was discovered that there was a clear missing link between Serial No.30 and 32 in the select list which remains unexplained. Learned counsel for the petitioner had attributed this lacuna as a deceitful act hidden under the camouflage of a mass of papers in PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 11 : the long selection list, which list was obtained by the petitioner after filing of the present writ petition and has been placed at Annexure P-23 on record through an application after notice to the respondent State. In the absence of any explanation, learned DAG, Punjab prayed for time to seek instructions and to show cause why the petitioner be not held entitled to appointment on the logic presented by the petitioner mathematically in his address to the Court. A reply affidavit was filed by the State. It is, thus, admitted that serial No.31 is missing in the selection list but it has been explained and very essentially to be put in the words of the deponent himself which read : -
"That in this regard it is submitted that there was total of 215 posts meant for the candidates of General Category. Out of them 108 posts were meant for Female General Category and 107 posts were meant for Male General Category and 107 posts were meant for Male General Category. A perusal of this selection list, reveals that selection list contains the numbers upto serial no.109 and serial no.31 is missing on account of clerical mistake. In fact this list contains 108 candidates. The petitioner has also submitted that the candidate selected at serial No.16, 40, 42, 50, 55, 59, 82, 97 and 108 have not submitted their joining in furtherance of their selection during the year of 2006."
16. The rest of the contents of this affidavit are repetitious and should not detain the Court. However, one fact which looms large is that Kawaljit Kaur [registration No.46408 at serial merit No.42/107] joined as Headmistress on 9th July, 2012 and is presently working in Government service on an advertised vacancy/post. In the end of the affidavit, there is a prayer for grant of more time to ascertain the joining status of the remaining candidates whose names were pointed out by the petitioner in her civil PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 12 : miscellaneous application. If this is the position, hopelessly sought to be explained by the respondents with no clarity, then a distinct impression is left on the mind of the Court from the totality of facts presented that State has more to hide than to show. So long as the name of the petitioner is in the merit list and she was not driven out of the revised list for any reason whatsoever her right to retain and return to her original merit position in the pre-revised list would remain unaffected and she cannot be held to have fallen out the zone of consideration so long as one vacancy exists in the category of Headmistress (Female) General. She has a right to be offered appointment as the person next below the merit of the last candidate selected standing above the unfilled vacancy from the pool of advertised posts. It would be wholly fallacious to decide this case on the basis of a waiting list or whether they operate or were at all made or not.
17. It is trite to say that when vacancies in direct recruitment remain unfilled by reason of non-joining of selected candidates, then the candidate next below the last selected candidate deserves to be pushed up into the zone of consideration in the available vacancies and it is in this manner that the case of the petitioner has to be viewed.
18. To pay due credit to Mr.Rajiv Prashad, learned Additional Advocate General, Punjab, in stoutly defending the State action of denying appointment, he relies on the constitution bench decision of the Supreme Court in Shankarsan Dash v. Union of India; 1991 (1) SCC 47 which is a leading judgment on the points it covers and has been followed since its pronouncement and applied to similar situations. The ratio in Shankarsan Dash proceeds on the postulate that the process of selection and PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 13 : appointment stands completed the what happen to rights of persons in waiting list or close enough to lay a claim to a superior service where vacancies remain unfilled by shifting up or by reallocation. This has been negated as one not creating rights on persons in the lower service covered by the same recruitment drive. The recruitment process having become Law 23 of the Rules of Cricket, or a dead ball, then the unfilled vacancies of past selection as a result of non-joining of candidates would have to be put in the trough of fresh selection process by direct recruitment so that the unfilled vacancies become available to be filled in accordance with non- discriminatory and the equal opportunity clauses in articles 14 and 16 of the Constitution respectively. In Shankarsan Dash the factual position resulted from an examination held by the UPSC in October, 1977 for appointment to several services including the IPS and the Police Services Group B, the examination of which was held in October, 1977 and the result was declared in May, 1978. A combined merit list of IPS and Police Services Group B was announced which included the name of Sh. Shankarsan Dash, the petitioner therein, who did not make the merit to the IPS and was offered DANIP in Police Services Group B which he had accepted. When several candidates did not join in Group B, the petitioner's position improved and ultimately, he found himself on the top of the list. Subsequent to the recruitment process of June, 1977, 14 new vacancies arose in the IPS due to selected candidates not joining the premier service. It was then a claim was laid by Sh. Shankarsan Dash etc. in Court for fitment on those vacancies which had drawn a blank and it was this request which was rejected while holding that a candidate whose name appears in the merit list acquires no PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 14 : indefeasible right to appointment if a vacancy arose by non-joining of some candidate. But this is not the factual position in the present case which deals with selection against vacancies of one post in the same cadre. This case is, therefore, distinguishable on facts and its ratio does not fit here.
19. In the present case, the recruitment process had not become Law 23 in view of the admission by State that Kawaljit Kaur was offered appointment and joined on 9th July, 2012 while this petition was filed on 31st July, 2012 when it was stamped by the Registry. It is therefore safe to assume that the recruitment process 2006 remained alive at least till 9th July, 2012 which was not of a litigious nature as Court had nothing to do with it as nothing of the kind is found pleaded in the writ papers. The petitioner has been litigating since then and her rights, if an, are to be declared on the date of filing of the petition which was only 3 weeks of the last offer of appointment by the State.
20. It may be noted that the petitioner was at merit No.109 in the revised merit list against 106 in the previous list. The State has not disputed in any of its written statements or in the affidavits filed in the case that due to the alarming situation created by non-joining of candidates, it had not given benefit of 10 percent of the total vacancies to operate as a working waiting list from where names could be drawn. One may witness Annexure P-9 issued by the Punjab Government, Public Instructions (Schools) Department on the subject "Notice of preparing list for filling up vacancies remained unfilled and 10percent waiting list" which document have not been disputed by the State in its counter to paragraph 7 of the petition where this fact is specifically pleaded by the petitioner. It is trite that what is not PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 15 : specifically denied is judicially accepted as admitted and need not be proved.
21. From the afore stated position it is manifest that this fact in A-9 gives a larger room for entry even beyond both the rigid principles of law pertaining to advertised limit of vacancies and operation of waiting lists. Reasons for this are as follows. Firstly, that A-9 relaxes more or less the normal strict bar against filling posts beyond the advertised vacancies; Secondly, it dips into the pocket of 10 percent of the advertised vacancies making those an active source of recruitment from the same process; Thirdly, the theory of non-making of waiting list stands exploded; Fourthly, the petitioner's case does not depend on the waiting list; Fifthly, even if it did, even then it is not the case of the State that her case does not fall within 10 percent of the advertised vacancies where she is so high up that her claim should naturally fall; Sixthly, she was pushed down from position 106 to 109 because 3 candidates fell in who were not in the first list. It is then that Ms. Shivani Gupta falls out of the merit list due to her ineligibility and fails to secure an appointment leaving one clear vacancy unfilled and by this process the petitioner comes at position 108 which was the advertised quota of Head Mistresses. By this logic, the petitioner has made out a case for interference and she is found deserving of the relief claimed as she has been denied appointment on lame excuses without any justifiable rationale.
22. If the argument is that mere selection or being short listed and placed in the wait list confers no indefeasible right to appointment and the State cannot be compelled to fill vacancies or make appointments, then, it would be apposite to refer to the dicta of the Constitution Bench of the PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 16 : Supreme Court where this aspect has been dealt with in Shankarsan Dash v. Union of India, (1991) 3 S.C.C. 47, where the earlier decisions of the Supreme Court were noted and the following observations were made:
"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to he taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwah, Neelima Shangla v. State of Haryana or Jatendra Kumar v. State of Punjab." (underlined for emphasis)
23. Before I come to the relief part of this case, I wish to pen down a few words on a thorny and vexed issue which has gnawed at me for long, and that is, whether the monetary relief of back wages should never be made admissible and denied mechanically. It is in this context that this issue looms large, in the midst of abundance of directions in past precedents, where entitlement to salary is as a matter of course directed either from the date of judgment or joining the post, but without any discussion on the point, and from where ratio may be found. Judicial guidance is that judgments, orders and directions of courts are not to be read as statutes or PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 17 : codified law. What one finds in the present case is a person relentlessly fighting four rounds of litigation to secure justice for herself. It is then that the moot issue is whether she is entitled to salary, in part or in whole, which she would have earned but for the wrongful and illegal denial of appointment to her. I am inclined to think that it cannot be held as an absolute rule that she should be denied such a right altogether on the reason that mere selection does not give rise to an indefeasible right to appointment. However, by applying the principle of no work- no pay on the ground that the matter was so contentious that respondent could not be accused of unlawful denial of appointment, as they had an arguable case which required a court verdict to declare the rights of either party, then, the case may be different. When the State cannot be blamed for the view taken, depending on its own logic in denying an appointment, but which is later on faulted by a Court, then a case for back salary may not be made out. Then it would be just to meet the ends of justice that salary should flow only prospectively from the date of joining under a court decree. But, in cases which are clear breaches of fundamental rights and denial of a right for the sake of denial, and on improper motives, as also such a denial is found manifestly suffering from wrongful deprivation of rights and divestiture of the values preserved by articles 14 and 16 of the Constitution of India, then, the position may be different. The court may then have to examine the case from various angles before thinking of granting anterior relief or compensate prospectively, by preserving all other rights of antedated appointment notionally. There may also be cases where the denial is ex facie based on palpable errors committed in counting vacancies but are stoutly PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 18 : and vindictively defended, say as in the present case, in the sheer arithmetic of vacancies.
24. In such cases, if the State is not found defending its wrongful action in a forthright manner and attempting to mislead the court by a jugglery of facts, playing tricks with numbers and deflecting the court from the path of justice, then, I find no fundamental policy in the Indian law or a statutory bar or a common law principle or even a rudimentary civil law principle to deny wages, for work unlawfully, illegally and unjustly withheld from being performed, without any just cause or legal justification for the monetary loss caused by illegal denial and for no fault of the petitioner. In such cases, a right might exist at least from the date a court of law is approached for the vindication of a pre-existing right, pre-existing from the date of illegal denial. In this case after reading case papers and hearing arguments addressed at the bar, I would be loathe to deny the petitioner, while declaring her right to appointment, the back salary at least after the date of presentation of the present petition demanding justice. I would therefore uphold the petitioner's right to back salary, but feel persuaded enough to deny it for any period prior to the filing of the petition, for the reason that the ground is covered by three previous rounds of litigation and orders passed therein. A mere practice of howsoever long a standing in court, when granting relief while upholding a right to appointment but denying back pay which is a monetary benefit enjoyed by the successful batchmates who secured appointment, will not turn it, however hard one tries, into an absolute rule or a principle of law of universal application that salary in such a case can run only from the date of PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 19 : joining, which itself will become a fortuitous circumstance when the court orders reconsideration of her case. This question cannot suffer any rigid formula or strait jacket approach and would need to be examined on a case to case basis holistically. In law, the court is concerned only with legal principles and ratio derived from precedents after full debate. If there are none available or in sight then what legal justification remains in not upholding such a right on first principles alone. Relief cannot be swept away by a precedential profusion which does not qualify as binding precedent governed by the principle of stare decisis. In absence of principles established by binding decisions on this short monetary point or any statutory enactment covering the subject, none of which is brought to my notice, it seems to me that the relief part is covered by the long recognised rule of thumb theory in the matter of grant of relief. This path is always easier to tread, but that would not per se make it a matter of law which leaves no discretion in the court to carry on the practice blindly when reason dawns and a question is posed for the court to answer and then it would not shy away. The more I examine the question of relief prior to appointment in the present context, and whether it is admissible at all, the more I am inclined to think that the only plausible reason that must weigh in the mind of the court while exercising jurisdiction under article 226 of the Constitution, is not to punish the wrong doer with financial liability, but not to ignore the rights of the wronged. There is no gainsaying that article 226 of the Constitution provides a discretionary power and in the exercise of that jurisdiction the Court may keep short its interference in money matters and tilt towards the State which runs on public funds and must not be PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 20 : burdened with tax payer's money. If this is a legally acceptable reasoning then I have nothing more to say and should abide.
25. In declaring valuable rights of citizens and granting relief the court is little concerned with the material fallout of its order or the financial burden it may cause to the State, when the court is convinced of the existence of a right, which is fundamental in nature, but not all rights in one sweep, as that would not be prudent without examining the right brought to a court. I do not find any fixed proposition of law or of natural justice to deny back pay in cases where the State acted with patent illegality and has tried to obfuscate the Court for long, in successive pleadings in four rounds of litigation, only with a view to harass and deprive the petitioner of her just claim. I would add that this order does not declare any special right as I find nothing that takes away the right to past salary and in that sense the approach is a negative one in trying to solve the issue of relief. In denying back pay the State benefits. While denying such relief the Court may not create a positive right in the State to retain money, as it would amount to unjust enrichment of dues, which were payable to the petitioner if the wrong was not committed by the State. There would hardly be any rationale in this worth the salt. The approach of the court should be to grant relief in a deserving case and it cannot remain unmindful of the accountability of the wrongdoer and indirectly punish the beneficiary of the wrong. This order only recognizes the wrong done to the petitioner for which amends are required to be made on principles of restorative justice to repair the harm done by the functionaries of the State holding office of trust and betraying it as is plainly forthcoming from the impugned orders. For this reason, I would PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 21 : award arrears of back salary accruing from the date of the petition and not from date of joining, in favour of the petitioner and against the State, though severely truncated for the reasons recorded above. That period of three rounds of litigation has to be sadly blacked out since it was beyond judicially manageable standards or control even of the court with litigation foisted on the petitioner by the respondents by passing bad administrative orders. There was no clear way out mostly due to false defences set up by State. This Court then proceeds to mould relief and it issues directions which it thinks are in conformity with the principles of justice, equity and good conscience; the triad which fuels the writ court to strike injustice. The court does no favour while granting such retributive relief. When found due it becomes a matter of right to such relief and must follow the right because the court obliges no one and no counsel should ever be heard to say in court while it passes favourable orders in a case "My Lord, I am obliged." This remark cuts through the heart of the court and bleeds it as it is not doing any favour to anyone but only declares rights in cases before it according to its understanding of the law. Relief becomes incidental to justice in a cause. One cannot forget lessons learnt that the State is supposed to be a model employer bound by the rule of law and not governed by individual perceptions of discretionary injustice.
26. In doing so, the Court is not afraid or easily swayed by any number of directions that may have been issued in past cases in which the issue of the right to salary before actual appointment or joining was denied. Cases of rightful appointment held back by sleight of hand and for bad reasons, the sort of deprivation this court finds emerging from the writ PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 22 : papers, when those directions in orders were neither thrashed out on legal principles nor debated at the Bar, then, they may not be mechanically followed. None of such a case has been brought to my notice, and if are available and of any help and binding precedent on this limited issue, then I would readily change my opinion and review the moot relief suo motu for which no appeal is required. If the functionaries of the State were remiss in their duty to act in accordance with law, then the State remains vicariously liable for the actions and inactions of its officers. Their attitude in this case and in its handling is mostly callous, if I may call it. It is just another example of man's inhumanity to man. In this case, it is worse still, since the petitioner is a lady. There is an environmental law principle applied by court, which rightly deserves to be introduced in service law, which is- The polluter pays. If State pollutes the fountain of justice by wrong doing, it must pay a price. Back pay should be denied only if the court is doing a favour in ordering the State to make an appointment.
27. Article 16 (1) of the Constitution in "matters of employment"
guarantees equal opportunity and article 14 preserves fairness-in-action and reasonableness in the decision making process which should be as far as humanly possible, be free from arbitrariness. This expression has been interpreted so as to include matters both prior and subsequent to employment in the 5 Judge Bench of the Supreme Court in General Manager, Southern Railways v. Rangachari, AIR 1962 SC 36 [though overruled in Indira Sawhney v. Union of India & Ors (the Mandal case) on point of reservation in promotions notwithstanding] speaking through Gajendragadhkar, J. read to its limited extent on the point below, which part PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 23 : has not been upturned, the Court observed:-
" In this connection it may be relevant to remember that Art. 16(1) and (2) really give effect to the equality before law guaranteed by Art. 14 and to the prohibition of discrimination guaranteed by Art. 15(1). The three provisions form part of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment." [emphasis added]
28. Back salary on wrongful and unfair denial of appointment which is unfairly discriminatory clearly falls in the province of "matters of employment" in article 16 (1) and remains an eminently executable claim to money. Quite apart from this, in labour law such rights in back wages after retrenchment are upheld everyday by the Tribunals and in appropriate cases supported by the superior court and such rights are upheld.
29. If we examine the scenario obtaining, after the magical line is crossed leading to an appointment on regular basis and the man is sacked for the wrong reasons and is reinstated to service by the court, can he then be deprived of his arrears of back pay. On this, the Full Bench of this court answers in Radha Ram v. Municipal Committee, Barnala; 1983 PLR 21, speaking through S.S. Sandhawalia, J, holding that once the relief of setting aside of quashing the order of termination has been granted, it necessarily follows that the employee in the eye of law continues to be in service and as a necessary consequence thereof, would be entitled to all the emoluments flowing from declaration of that status. He must be deemed to be in a PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 24 : position identical with that existing prior to the passing of the order of termination of his service. The emoluments of the post are a logical consequence of setting aside the order of termination. Why is it not legally possible to apply the principle wholesomely and beneficially in reverse order, working backwards when rights are declared retrospectively to the periods prior to appointment. These are covered by "matters of employment" in article 16 and for which relief may be available in an appropriate case to secure the ends of justice and for the court to do so without being obsessed with the financial pocket of the State. This part can always be taken care of by giving the State recovery rights against defaulting functionaries who committed the tort of misfeasance in public office and were ex facie at culpable fault in deliberately miscalculating vacancies and then hiding more than they could show to Court by taking false defences. The State will remain at liberty to act so as to replenish the State exchequer of loss caused by its paid servants who were bound to discharge duty in accordance with law and not in mere error of judgment which might have saved them on good faith. I do not think the State would then have any quarrel left as it can restitute the money to itself at the expense of its erring officials. This approach I like to think is commendable and part of the doctrine of consequential benefits. This would also keep the functionaries of State within the law and be accountable for their actions. Bad orders cost a lot of money in court and waste too much of its time. When the State is vicariously liable for the actions of its servants, it only means that it is liable in the first instance to pay. But if it wishes, it can always recover money caused by deliberate and intentional wrongdoing by PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document CWP No.14610 of 2012 : 25 : its public servants.
30. For the foregoing reasons, this petition is allowed. A writ of certiorari is issued to the respondent State through which the impugned order rejecting the case of the petitioner for appointment as Headmistress (Female) General is quashed including all adverse file notings which may exist on the record by issuing a writ of certiorari to the respondent State not to act upon them. The respondents are directed to consider appointing the petitioner to one of the available vacancies lying unfilled from within 108 posts with all consequential benefits including right to receive salary from 31st July, 2012 the date of filing of the present petition. The consideration is directed to be finalized within 30 days from the date of receipt of a certified copy of this order. If she fulfills all other conditions she may be offered appointment. The petitioner shall have costs quantified at ` 25,000/- from the State.
31. The petition stands disposed of accordingly.
(RAJIV NARAIN RAINA) JUDGE December 16, 2014 Paritosh Kumar PARITOSH KUMAR 2015.01.07 16:15 I attest to the accuracy and integrity of this document