Punjab-Haryana High Court
Baljeet Kaur vs State Of Punjab And Ors on 10 November, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.14383 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH
CWP No.14383 of 2013
Date of Decision: 10.11.2014
Baljeet Kaur ... Petitioner
Versus
State of Punjab and others ... Respondents
CORAM: - HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.Vivek Sharma, Advocate for the petitioner
Mr.Rajiv Prashad, Addl.A.G., Punjab for the respondents
1. To be referred to the Reporter or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
Pursuant to the advertisement dated 26th July 2011 (Annexure P-
3) published by the respondents in the press, the petitioner applied for the post of Staff Nurse in the general category. The last date for applying online was 19th August, 2011. The written test for the post was held on 13th November, 2011 after it was postponed on 6th November, 2011. She secured 60 marks out of 80 in the selection test and was called for counselling on 18th January, 2012 to produce her testimonials in the original. It was then discovered by the scrutiny committee that she was not eligible for the post as she had not passed the subject of Punjabi language in the matriculation examination as a compulsory or elective subject. The administrative remarks disqualifying her candidature are found in Annexure P-4. Aggrieved by the action of the respondents, the petitioner made a representation on 13th September, 2012 (Annexure P-5), [the day she cleared the Punjabi language MD FIROZ KHAN 2014.11.18 16:16 I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.14383 of 2013 2 paper in the matriculation examination, the test of which was held in March 2012] informing the respondents; that she had qualified the Punjabi paper; that she is a ward of a Defence Personnel and is a bona fide resident of Punjab. She got married on 28th January, 2007. A perusal of the advertisement reveals under the heading: Knowledge of Punjabi language; a condition that the wards of defence personnel who are bona fide resident of Punjab State have to pass a test of Punjabi language equal in level to the one conducted for the matriculation examination within a period of two years from the date of appointment. It happens that she has passed the Punjabi language subject in March, 2012 well before the expiry of the prescribed period of two years, if she were offered appointment, since the counselling was held on 18th January, 2012 and the result declared much later on 26th June, 2013. The petitioner also places reliance on the certificate issued by the competent authority that she was a dependent/ward of an ex-serviceman. The representation dated 13th September, 2012 has not been decided so far and remains pending consideration. Aggrieved by being denied appointment, she has approached this Court praying for a mandamus to the respondents to appoint her since on merit she makes it to the zone of selection amongst the 301 vacancies advertised by the respondents.
On summons issued, the respondents have entered appearance to contest the case and have filed a counter. In the written statement, it is pleaded that the petitioner is not a dependent of defence personnel as she was married prior to the recruitment process and has lost the status of a dependent of defence personnel. The other issue raised by the respondents is that on the last date of submissions of the applications i.e. 19 th August, 2011, MD FIROZ KHAN 2014.11.18 16:16 the petitioner had not qualified the Punjabi language examination in the 10th I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.14383 of 2013 3 Class and therefore, she was not eligible for the post.
I have heard the learned counsel for the parties at length and perused the case papers placed before this Court with no request to place anything further for its consideration.
The primary issue arising and canvassed is whether the petitioner's claim can be ignored for the reason that she had not qualified the additional subject of Punjabi in the 10th Class before the date of submission of the application form as per the advertisement when she applied under the General Category and not from the category of Wards of Defence Personnel.
Mr. Rajiv Prasad, learned Addl. AG appearing for the State of Punjab argues that the petitioner was married four years prior to the recruitment process and cannot be considered as a dependant of a defence personnel/ex- serviceman which her father may have been or is. She did not apply as a dependent of an ex-serviceman and competed in the general category. Since, the petitioner has not taken the benefit of being a dependent of ex- serviceman at the time of submission of application form, it would not be necessary to enter the issue. The other issue raised by Mr. Prasad, is that on the last date of submission of the application form i.e. 19th August, 2011 the petitioner had not qualified the Punjabi subject in the 10th class examination and therefore, she was not eligible for the post and her candidature has been rightly rejected. Merely because she has passed the Punjabi language paper afterward is no ground to admit her claim. The petitioner was bound by the terms of the advertisement. If a thing is required to be initiated in a particular manner, it should be done in the manner prescribed which should be strictly adhered to and if it not, it might open vistas for challenge by similarly MD FIROZ KHAN 2014.11.18 16:16 I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.14383 of 2013 4 situated persons brought in courts of law, as have also qualified the test meanwhile and may be within the zone of merit. However, no such instance is shown and only the reasoning is relied on as one which is grounded on established principles of equal opportunity and denial thereof by State machinery. No administrator could have, it is urged, taken the decision to give the petitioner the green signal. If the administrator didn't, the Court should not.
In response, Mr. Vivek Sharma appearing for the petitioner submits that Note at Bullet 8 of the terms and conditions of the advertisement no doubt requires the qualifications of a candidate to be earned prior to the last date of filing the application form to compete for the post. But submits that as per the advertisement, the core minimum essential qualifications for the post of Staff Nurse were actually the professional qualifications possessed for the post without which the exercise would be meaningless i.e. the candidate should have passed the Senior Secondary Part-II Examination or its equivalent from a recognised university or institution; should possess a Diploma in General Nursing and Midwifery from a recognized university or institution and the candidate should be registered with the Punjab Nursing Registration Council established under the Punjab Nurses Registration Act, 1932 (Punjab Act No.1 of 1932). It is not disputed that the petitioner possesses all the three essential minimum qualifications advertised as per rules of service before she applied. Passing of the Punjabi language test is a shade secondary in nature to the essential functions of a nurse though necessary in the workplace and which is capable of being earned by overcoming a barrier which is not insuperable unlike the essential professional qualifications. This can be achieved while in service by way of MD FIROZ KHAN 2014.11.18 16:16 a concession and a special protection granted by State policy itself to wards I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.14383 of 2013 5 of defence service personnel who schooled outside Punjab by virtue of postings suffered in different parts of India during service by their fathers and were disadvantaged in learning their mother tongue in schools outside the State of Punjab not offering the Punjabi language as a subject taught by giving them a chance to qualify the same within the period of time prescribed for a ward of defence service personnel to gain proficiency in the language while in service and demonstrate their ability by qualifying a test conducted by the language wing of the Department of Education of Punjab Government within a period of two years from the date of his/her appointment.
Learned counsel for the petitioner submits that the petitioner is otherwise eligible as she holds all the three prescribed professional qualifications as on the last date of submission of the application form as there is no stipulation in Rule 17 of the Punjab Civil Service (General & Common Conditions of Service Rules), 1994 (for short "the 1994 Rules") [which statutory rule deals with knowledge of Punjabi] stipulating in its proviso that Punjabi language subject has to be passed in the following manner by taking care of situations arising after appointment. Proviso to Rule 17 is reproduced below:-
"Provided further that where a ward of defence service personnel, who is a bona fide resident of Punjab State, is appointed by direct appointment, he shall have to pass an examination of Punjabi language equivalent to matriculation standard or he shall have to qualify a test conducted by the language wing of the department of Education of MD FIROZ KHAN 2014.11.18 16:16 I attest to the accuracy and integrity Punjab Government within a period of two years of this document punjab and haryana high court chandigarh CWP No.14383 of 2013 6 from the date of his appointment."
A perusal of the proviso read in juxtaposition with the terms of the advertisement bears out that the proviso is specific to the wards of defence service personnel who are bona fide residents of the State of Punjab. When such a ward is offered public appointment by direct recruitment, he/she would take the benefit of the moratorium period of two years to qualify the Punjabi language examination from the date of appointment. The proviso militates against the belief that subject matter examination has to be inflexibly cleared before the last date of submission of the application form.
In fact the heart of the matter really lies in Note: Bullet 4 of the terms and conditions of the advertisement where the stringent condition of passing matriculation with Punjabi as a compulsory or elective subject at the time of submission of application stands relaxed for wards of defence service personnel who if appointed on merit shall have to pass the examination in the Punjabi language as prescribed. To appreciate this, Bullet 4 of the "Terms & Conditions" of the advertisement needs to be looked into. To put it in inverted commas:-
"Knowledge of Punjabi language: No person shall be appointed to any post in any service by Direct appointment unless he has passed matriculation examination with Punjabi as one of the compulsory or elective subject or any other equivalent examination in Punjabi language at time of submission of application, which may be specified by the Govt. from time to time. Provided further that where a ward of Defence Service MD FIROZ KHAN 2014.11.18 16:16 I attest to the accuracy and integrity Personnel, which is a bona fide resident of Punjab of this document punjab and haryana high court chandigarh CWP No.14383 of 2013 7 State, is appointed by direct appointment, he shall have to pass an examination of Punjabi language equivalent to Matriculation Standard or he shall have to qualify a test conducted by the Language Wing of the Department of Education of Punjab Govt. within a period of two years from the date of his appointment."
The effect of Note: Bullet 4 appears to indicate that a ward of a defence service personnel who is a bona fide resident of Punjab State, shall have to pass an examination of Punjabi language equivalent to the matriculation standard within a period of two years from the date of appointment conducted by the language wing of the department of Education of Punjab Government without reference to passing of the subject of Punjabi language in the matriculation examination. Therefore, Punjabi language as a compulsory or elective subject in matriculation examination has been conferred equivalence by the Govt. with the test conducted by the language wing of the Department of Education of Punjab Government. There is thus a shimmer of a dichotomy which emerges from a reading of Note: Bullet 4 supra which gives with one hand and takes away by the other. The proviso in Bullet 4 when read harmoniously with its substantive first part evidently suggests an exception carved out for "wards" [not "dependants"] of defence service personnel by postponing the removal of lack of proof of knowledge of Punjabi language as a barrier from the main gate of the last date of receiving application forms online to the drive-in porch of a test of proficiency in the Punjabi language to a future point in time after joining service on appointment to be conducted by the language wing of the MD FIROZ KHAN 2014.11.18 16:16 Education Department, Punjab. When 'wards' of defence service personnel I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.14383 of 2013 8 are given special rights by Bullet 4 itself then power to do so can only be traced to rule 17 of the 1994 Rules even though the provision may not be mentioned as the source of the concession in the advertisement. This is a concession given to wards of a special category of a class of persons by the general and common conditions of service rules which deserves to be read in all advertisements calling applications for public employment unless they are ousted by special rules of service framed for the department in question by the Governor of the State under proviso to Article 309 of the Constitution of India. No such special rule has been shown by the respondents for the court to discard the 1994 Rules as inapplicable or of no value to the facts of the present case in adjudicating the lis.
To examine the issue from a different stand point it can be legitimately argued that if the defence of the respondent State of passing Punjabi language as a compulsory/elective subject in matriculation before the last date of submission of application form is accepted, then it appears nebulous as to whether Punjabi language test was to be qualified on the cut off date of submission of the application form online from 27th July to 19th August 2011 or whether proof of knowledge of reading and writing Punjabi should not be accepted ex post facto when the petitioner de facto came to possess the qualification of Punjabi language in the matriculation examination to the standard demanded though the result of such test was declared later on 27th June, 2013 which result would relate back to the date of the test. If the benefit of the fourth proviso to rule 17, which is in consonance with proviso to Bullet 4, is given to the petitioner then she would still have had sufficient time to pass the test to be conducted by the Department of Education, Punjab Government in the event appointment is MD FIROZ KHAN 2014.11.18 16:16 offered to her.
I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.14383 of 2013 9 It is also argued by the petitioner that the fourth proviso is meant for the "wards" of defence personnel and not for the "dependent" of ex- serviceman since the petitioner competed as a general category candidate and not as a dependant of ESM and in which competition she remained successful by qualifying for selection on merit as the result bears. The fourth proviso is a special proviso designed for wards of defence service personnel and not for the dependents of ex-serviceman. The former is a concession while the latter is a species of horizontal reservation. Between the two there is a vast difference in cause and effect. Quite apparently, the fourth proviso operates ex-post facto, that is, after the event when appointment is offered and accepted. The starting gun of the two year race in rule 17 starts from that tape. The rule is both creative of a right and declaratory in its nature. This leads to an irresistible conclusion that by not qualifying the Punjabi language subject in the matriculation examination at the time of submission of the application form is not determinative or conclusive of the issue when compliance stands postponed by rules of general and common conditions of service which the Govt. thought fit to incorporate as a substitute qualification achievable after direct appointment. Even assuming that there is an ambiguity in the advertisement and rule 17 of the 1994 rules, such an ambiguity deserves to be interpreted in favour of petitioner to secure her an appointment as she ranks higher in merit than a large number of selected candidates. I am not able to persuade myself, however hard I try, to ignore this crucial aspect of meritocracy that a supplicant to this Court should be left to sink in the quicksand of time unable to retrieve her Punjabiyat even when she is a true blue.
The question is what has a nurse got to do with expertise in the MD FIROZ KHAN 2014.11.18 16:16 local language in India written and spoken while serving outside the home I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.14383 of 2013 10 State so long as he/she can communicate. This is where proviso to rule 17 steps in allowing sufficient time to pick up the threads of Punjabi language. India needs Florence Nightingales if they can be found. The best of nurses are in short supply and not in surfeit. Nursing care is more than wanting in our hospitals. Ask a sick man. The injured, the persons brought to hospital in the trauma ward, in comatose or in an unconscious state, in great suffering are managed by doctors, nursing and paramedical staff and the attendants of patients. A nurse is not to be engaged in a conversation by the patient or by the hospital staff except to obey commands of treating physicians and surgeons and to follow a regimen set for the patient. Their skill is more important than language because the nature of the job is such. Therefore, language becomes to my mind a secondary consideration in finding a nurse who is a good human being so long as they make their meaning clear in doing the work assigned to them and to do it efficiently and without a whisper. In search of good nurses the Govt. cannot remain obsessed by its State language which may be short-sightedness in terms of long term health care. Rules of service in this field are always inadequate to measure up to health care standards in searching for talent. India is one single entity for public employment in a constituent State. A nurse may hardly do any administrative work in pushing files in Govt. offices where standards of the local language become vital. A working knowledge of the local language is all that is required of a nurse which may not be true for a doctor on whom demands may be greater. We have to return to the philosophy of proviso to rule 17 in making a special provision for wards of defence service personnel who could not grow up in the nursery of their own mother tongue by force of circumstances. The question to be put to the health department really is:
MD FIROZ KHAN 2014.11.18 16:16 what are you looking for? I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.14383 of 2013 11 Moreover, on the fair principles of equity as well which this court exercises in article 226 as are founded on legal rights, the petitioner is held entitled to be considered for the post of Staff Nurse on precepts of justice, equity and good conscience. An interpretation should be placed in such a way ex debito justitiae which would secure the relief of appointment to a meritorious candidate on the ground of considerations of pure merit and practical prudence which far outweigh all other considerations, which principles should rule the roost and this can well be achieved by shedding judicial light on the dark shadows cast on the vexed interplay of the "Terms and Conditions" of the advertisement and rule 17 of the rules, each unfortunately made without reference to the other. This is where the draftsman of both the documents failed to produce any clarity on the subject, may be unwittingly, but leaving it mostly for the court to spend its time in recording reasons for its decision without fear of decision-making which a superior court might fault and reverse. Nevertheless, the Court never shirks from its constitutional duty to interpret the law in its limited human wisdom and personal experience of law-in-action gained by living in a community without any expectations or seeking approval of the correctness of its enterprise and intellectual exercise which may entail because the reward on the Bench is to do justice as justice demands from case to case as perceived after due reflection. Very often, personalized notions of justice become bedrocks of decisions and indecisions that a judge might take every day and does, and this is nothing to be worried about. This Court would pluck a leaf from the American school of realism and the legacy of its father figure; Oliver Wendell Homes, J. in his famous aphorism in 'The Common Law' [1881] that: "The life of the law has not been logic; it has been experience." MD FIROZ KHAN 2014.11.18 16:16 Then again in his main message in 'The Path of the Law' [1897] the great I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.14383 of 2013 12 judge said: "...that there is no basis in reason for deciding which of two contradictory legal doctrines is correct" and elaborating the message Holmes, J. said: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Then again the learned judge as author spoke in The Path: "I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage" though said in a different context.
The more slippery the case, the more or less the social advantage or disadvantage may have to be factored, one way or the other, the more ingenuity is required by Court to grant relief where new tools may have to be forged to replace old values to save life, liberty and the livelihood of a citizen and to achieve this the Court may not only look to past precedent without expanding the future. The Court may create law and not just follow it where human affairs allow. It is always easier to decline relief than to cull it out. It is always easier to be a defendant than a plaintiff in a court of law. Hard cases don't necessarily make bad law. This is what constitutional judges may do or may not.
Indisputably, the petitioner has qualified on merit in the general category and has also qualified the Punjabi language test before appointments were offered to the successful candidates after the result was declared on 26th June, 2013. In concluding the recruitment process the time taken is about two years from the advertisement and the offer of appointments and this hiatus also indicates that relief deserves to be granted to the petitioner in order to secure her a consideration for appointment on her merit and rank achieved in the open general category paving the way for her to become a professional nurse in a Punjab Government hospital or MD FIROZ KHAN 2014.11.18 16:16 dispensary. If appointed, the petitioner would rank, to much surprise, next I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh CWP No.14383 of 2013 13 below merit position 165, with candidates from 165 to 301 lower in merit than her if she were offered an appointment, leaving 136 persons junior to her in service, if she is accommodated in the pantheon of the successful. It cannot be forgotten that candidates up to merit 57.60 have secured appointment whereas the petitioner has notched 60 marks. To deny her claim would to the mind of the Court be unjust and unfair making the denial on the banal technicalities of the law. After all, no other candidate is before the court claiming relief who may be similarly circumstanced and higher in merit than the petitioner.
For the reasons above, this petition is allowed and a writ of mandamus is issued to the State to consider the case of the petitioner for appointment to the post of Staff Nurse by ignoring non-possession of the Punjabi language clearance certificate on and prior to 19th August, 2011 in case all other parameters such as police verification, medical examination etc. stand satisfied. A final decision in this regard is directed to be taken within a period of one month after the expiry of the period of limitation prescribed for an appeal against this order. Meanwhile, the respondent State may do a background check of the petitioner subject to final opinion so that time is not wasted on it.
(RAJIV NARAIN RAINA) 10.11.2014 JUDGE Renu/MFK MD FIROZ KHAN 2014.11.18 16:16 I attest to the accuracy and integrity of this document punjab and haryana high court chandigarh