Punjab-Haryana High Court
Harsimran Singh vs State Of Punjab And Ors on 1 December, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.17954 of 2011
:1:
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.17954 of 2011
Date of decision: 1.12.2014
Dr.Harsimran Singh
... Petitioner
Versus
State of Punjab and others
... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.D.S.Patwalia, Sr.Advocate with
Mr.Salil Sabhlok, Advocate
for the petitioner.
Mr.Rajiv Prashad, Additional Advocate General, 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.
The petitioner and the 5th respondent are members of Punjab Civil Medical Services. The petitioner is senior to the 5th respondent as a Medical Officer. The Departmental Promotional Committee met on 12th June 2007 and recommended the cases of promotion of both the petitioner and respondent No.5 as Senior Lecturer/re designated as Assistant Professor in the Department of Ophthalmology in the Government Medical College, Patiala. However, these promotions were made ad hoc and against vacant posts in direct quota and was fortuitous and made for the reason that the direct recruits were not available largely as a result of selections made by PARITOSH KUMAR 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 :2: Punjab Public Service Commission, Patiala being mired in what came to be known and part of present folklore as the Ravi Sidhu 'cash-for-job' scam when a person by the name of Ravinder Pal Singh Sidhu was once the Chairman of Punjab Public Service Commission, Patiala and is now serving jail sentence. Ultimately, it was decided to fill up the posts of Senior Lecturers lying vacant for long in various departments of the Government Medical College, Patiala including in the Department of Ophthalmology by direct recruitment. As a result, three posts were advertised in the Department of Ophthalmology, the parent department of the petitioner and the 5th respondent. These three posts were distributed; one each for general category, Ex-serviceman and the reserved category of the backward class. Surprisingly, even though no posts were reserved for a candidate belonging to the scheduled caste category, in pursuance to the advertisement, the 5th respondent applied under the scheduled caste category on his own.
Rather interestingly, two days before the selection process was to commence, a corrigendum was issued by the Director, Research and Medical Education, Punjab, Chandigarh reducing the number of posts advertised to two without giving any break up as to which of the three posts was abolished and from which category the other two posts are to be filled up. It is a matter of even greater surprise that the process of interviews was to be held on 4th January 2011. The DRME, Punjab then wrote to the Chairman of the Selection Committee informing him that in fact, for the interviews proposed to be held for induction in the Department of Ophthalmology, the posts to be filled would in sharp departure from what was professed in the advertisement stand reduced from three to two and PARITOSH KUMAR instead of filing up the posts as per the prescribed advertisement, the posts 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 :3: would be filled up from the general category and the other from amongst the candidates belonging to the scheduled caste category, a class that had not responded to the advertisement nor could possibly have. Neither was any corrigendum issued to this effect nor any public notice put in public domain for candidates to know of the change.
2. It is the case of the petitioner that the 2nd respondent walked extra lengths and beyond the call of duty to accommodate the 5th respondent who is a member of the scheduled caste category in order to secure him the benefit of direct appointment. It is thus pleaded in paragraph 2 of the petition. A clear nexus is established from a succession of foreboding events including the very fact that even though a post for Scheduled Castes was not advertised, the 5th respondent applied in the scheduled caste category in advance and in anticipation of manna. Later on, the SC category was designed for him in the manner narrated above. The rules of the game were changed twice before the 5th respondent was selected and appointed to the post. As a result of the ad hoc promotion in 2007 accorded to both the petitioner and the 5th respondent, they had continued to serve from time to time in the temporary promoted post meant for direct quota and till the present regular recruitment was made resulting in the appointment of the 5th respondent as Assistant Professor. It is not disputed that those promotions were made till a regular recruitment is through. The regular recruitment had been delayed because of nullification of the process of direct recruitment of doctors by the State Government whose appointments could not mature because of the Ravi Sidhu scam.
3. A few further facts are necessary to be narrated for purposes of PARITOSH KUMAR understanding the challenge in this petition to the appointment of the 5th 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 :4: respondent pursuant to Advertisement No.1 of 1st September 2010 seeking a writ of quo warranto and whether he is a usurper of public office.
4. The defence in the written statement filed by the State of Punjab is that after the advertisement was issued, the Department realized that inadvertently, a mistake was made in advertising some posts against the provisions of Punjab Medical Education Services Rules, 1979 and in this recalculation exercise, some of the posts were withdrawn by issuing a corrigendum on 29th December 2010 (P-7) including in the Ophthalmology Department. As per PMESR, 1979, the ratio and proportion between the promotion quota and direct quota was 75% and 25% respectively. The cadre of Senior Lecturers/Assistant Professors in the Department of Ophthalmology consists of 8 posts. Hence, two posts come under direct recruitment and 6 posts under the promotion quota. Thus, out of 8 posts, 2 posts are to be filled through direct quota. As per instructions of the Government of Punjab, Department of Welfare (Reservation Cell) Memorandum dated 25th June 2004 (R-2), if the cadre is less than 5, then the 2nd post goes to the scheduled caste candidate. Hence, a corrigendum was issued reserving one post for a scheduled caste candidate. It is admitted that the 5th respondent applied for the post as a member of the scheduled caste as there was no bar on scheduled caste candidates in applying for a post in the general category. The State does not dispute that even though no post for scheduled caste category was advertised, yet the 5th respondent applied from that category. Not only that, he applied in a category not advertised. The 5th respondent was called for interview and accepted the precious opportunity. After the corrigendum dated 29th December 2010 was issued, a back-to-back PARITOSH KUMAR corrigendum was issued on "1.1.2011/2.1.2011" wherein the advertised 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 :5: number of posts which were to be filled up were varied from those which were advertised in the initial advertisement. In this corrigendum, it was clarified that two posts will be filled up but without disclosing the distribution category-wise and leaving the matter as vague as could be. The process of selection was to commence on 2nd January 2011. More shockingly, one day before the date of interview, i.e., on 3rd January 2011, an advisory was issued by the 2nd respondent to the Chairman of the Selection Committee informing him that there has been a change in the number and nomenclature of the posts to be filled and the same be now filled up in the manner prescribed by him. With this, the posts were distributed one day short of the interview between the general and scheduled caste category. The interviews went ahead in the changed circumstances and recommendations were made by the Selection Committee inter alia to appoint the 5th respondent to the post of Senior Lecturer/Assistant Professor of Ophthalmology in the Government Medical College, Patiala.
5. In his challenge to the appointment of the 5th respondent, Mr. Patwalia, learned senior counsel, has taken this Court systematically through various stages of the recruitment process drawing attention to facts and figures as they occurred which show that there was something drastically wrong in the method adopted to single out the 5th respondent for preferential treatment and choose him in flagrant disregard to constitutional norms of appointment to public service secured under articles 14 and 16 of the Constitution. He first points out to advertisement No.1 and points to its break up of posts in Clause A(iii) meant for Senior Lecturers/Assistant Professors, where 36 posts were advertised in different disciplines including PARITOSH KUMAR at Serial No.10 where one post was for the general category, one from BC 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 :6: and one from Ex-serviceman in the field of Ophthalmology. He points out to running Clause G (i) which contains important instructions that are relied upon by the respondents in the written statement, to wit, that the number of posts can be increased or decreased or withdrawn by the Government without any notice. This condition is kept on hold for further discussion in this judgment.
6. Learned senior counsel next points out to Clause C which deals with age barriers and provides in sub-clause (b) that for the posts of Senior Lecturers/Assistant Professors and Lecturer, the age qualifying for appointment stands between 18 to 35 with relaxation up to 45 years for all State/Central Government employees. He submits that on the date of recommendation made by the Selection Committee, the age of the 5th respondent was 46 years 11 months and 5 days which makes the 5th respondent overage for direct recruitment. It is then pointed out from Annexure P-3, p. 47 that the 5th respondent in the application form has written "SC02" in the category code '03'. In the column of age relaxation, if applicable, it is written, "SC02". On the left margin, the words, "eligible" have been scribed and initialed by unknown person in long hand possibly in the scrutiny process. The application form is dated "17.9.2010", which was the closing date for receipt of applications. There is no category or category code existing in Advertisement No.1 as ascribed by the 5th respondent on the face of the application form which was obviously filled in anticipation of fair weather. Prior information leaked out cannot be ruled out of consideration with neither the 4th nor the 5th respondent available to explain. It is often said that coming events cast their shadows before. PARITOSH KUMAR 7. Mr. Patwalia then draws the attention of the Court to the 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 :7: corrigendum issued by DRME, Punjab (P-5) which is dated nil but refers to advertisement No.1 published in various newspapers on 3rd/4th September 2010. In the corrigendum, it is reflected that for the time being, the 'following' posts mentioned in the corrigendum will alone be filled. Two posts are mentioned in Ophthalmology without disclosing as to which of the three categories they relate to and which one of the three was deducted and which retained. It is most certain that no reservation for SC candidates was mentioned in the corrigendum. The written statement discloses that this corrigendum is dated 1st January 2011, i.e., three days prior to the interviews. Then is the turn of the letter dated 3rd January 2011 addressed by DRME, Punjab, Chandigarh to the Chairman of the Selection Committee, Vice-Chancellor, Baba Farid University of Health Sciences, Faridkot being designated selecting body. This memo draws the attention of the Chairman of the Selection Committee to the corrigendum dated 1st January 2011 and 2nd January 2011 published in the daily newspapers.
8. Learned senior counsel then points out to the crucial document (P-7) containing the details of posts to be withdrawn from the posts to be filled up by the recommendations of the Selection Committee and the required details of the posts to be filled in. The vernacular of Annexure P-7 is placed alongside which reveals the cuttings and addition by hand of words in the printed document. This document shows that the requisition was sent for 3 posts in the Ophthalmology Department; two posts stand withdrawn; two posts are required for direct recruitment quota and the reservation presently is for one post of SC and one for general category. There is a cutting against column upon Item No.10 (Ophthalmology) in the 3rd column PARITOSH KUMAR where the number '2' is overwritten. This document became available to the 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 :8: Committee for the first time one day prior to the day interviews were to be conducted.
9. The serious grievance of the petitioner culminates in this document (P-7) which was not published in any newspaper and was, therefore, not in public domain nor made known to the candidates in advance or at the time of interview. No candidate knew of it except perhaps the 5th respondent for whom the post was being engineered at the instance of the 2nd respondent.
10. Mr. Patwalia draws the attention of this Court to the merit list of 11 candidates who appeared for interview on 4th January 2011, which is a photocopy of the original result sheet, disclosing the breakup of marks secured by each of the candidates. The topper is Dr. Anuradha who secured 76 marks in the general category and was selected and appointed. At serial No.1 is Dr. Kamaldeep in BC category who secured 31.5 marks. The name of the 5th respondent is found at serial No.10 (Dr. Rajinder Singh) with 32 marks in the category, 'SC02'. The second highest marks have in the general category been achieved by Mr. Anad Agarwal with 72.5 marks. It is clear from this chart that the 5th respondent-Dr. Rajinder Singh even if considered in the general category would fail to secure appointment. The 5th respondent was offered appointment vide memo dated 17th February 2011 (P-9) as Senior Lecturer/Assistant Professor in the Department of Ophthalmology in Government Medical College, Patiala. He joined the post and has been working since then.
11. The petitioner is neither an applicant nor contestant for the post though he is a member of the cadre and presently posted as a Senior PARITOSH KUMAR Lecturer/Assistant Professor in the Department of Ophthalmology, 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 :9: Government Medical College, Patiala. He has prayed for issuance of a writ in the nature of quo warranto restraining the 5th respondent from holding the post of Senior Lecturer/Assistant Professor in the Department of Ophthalmology in the respondent college by reason of his illegal appointment. The consequential prayer is that a writ of certiorari be issued quashing the appointment letter dated 17th February 2011 (P-9) by which the 5th respondent was offered appointment. The 3rd prayer is that upon quashing of the appointment of the 5th respondent, the post of Senior Lecturer/Assistant Professor, Ophthalmology be declared vacant and a writ of mandamus be issued to the respondents to re-advertise the post after re- calculating the vacancies in the cadre of Senior Lecturer/Assistant Professor and apply the principles of reservation properly in terms of the recruitment rule in the ratio of 75:25 amongst promotees and direct recruits respectively and thereafter, make the selection/appointment on the said post on the basis of fresh advertisement where the rules of the game are clearly spelled out and made known before the last date for receipt of application forms.
12. Heard the learned counsel for the parties at length and perused the writ papers thoroughly with the assistance of counsel and then in chambers.
13. Learned senior counsel appearing for the petitioner makes a threefold submission in his address to the Court to urge firstly, that the 5th respondent is a usurper of public office and his appointment being apparently in violation of the rules and contrary to the terms of advertisement No.1 dated 1st September 2010 the same deserves to be quashed. His second submission is that the 4th respondent, Dr. Jai Krishan, in PARITOSH KUMAR made party by name to answer the mala fides alleged apart from being the 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 10 : office holder of the post of 2nd respondent but has chosen not to file a separate reply in defence to the petition or to vindicate his stand. He acted improperly in changing the rules of the game after the game had begun and who at the eleventh hour issued two successive missives by way of corrigendum; one in the press and other not, by abusing his authority by introducing for the first time, one day before the selection committee met, altering and polluting the selection process by clandestinely declaring one post as ear marked for members of the scheduled caste category thereby paving the way for appointing the 5th respondent even though in advertisement No.1 of 2010, no post for the members of the scheduled caste has been advertised. This last minute change was kept a closely guarded secret from the public till after the result of the selection was known. In case, there was a calculation mistake in counting the vacancies in accordance with the rules and roster register and one post deserved to be granted to the member of the scheduled caste category, then the recruitment process should have been put on hold, if not recalled, and a suitable corrigendum issued and placed in public domain inviting other eligible candidates from the scheduled caste category who would have had the chance to apply in response to the fresh advertisement or corrigendum. Obviously, adopting this course would have delayed the recruitment and the game may have gone out of the hands of the 2nd and 4th respondent, the Head of the Department. On these premises and more importantly, the procedure adopted by the 2nd respondent was against the constitutional scheme of making public appointments in failing to satisfy the strict standards of both Articles 14 and 16 of the Constitution.
PARITOSH KUMAR 14. Thirdly, Mr. Patwalia contends that the 5th respondent could not 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 11 : be appointed by way of direct recruitment as he was overage on the date of the last date of receiving the applications, i.e., 17th September 2010. His date of birth is 12th October 1963. The 5th respondent in the application form has in his own hand written in Column No.10, '46 years 11 months and 5 days'. On his own showing, the 5th respondent was overage and even if the post for scheduled caste category was advertised, even then he had crossed the maximum age limit of 45 years for in service candidates, not to speak of the reserved category age limits by which also he would fail to secure an appointment. On this score alone, the appointment of the 5th respondent deserves to be nullified. This age rule was not relaxable nor was relaxed by the Government of Punjab or in consultation with it. Such a course could not be adopted and evidently was for the reason of the tearing hurry in which rules were broken, suitably changed and altered at the fag end of the selection process just short of final interviews on 4th January 2011 which alone speak volumes on bias, factual malice, malice-in-law and mala fides.
15. His next submission is that the first corrigendum itself speaks volumes of the unlawful manner in which the 2nd respondent proceeded apparently while working to the personal advantage of the 5th respondent in promptly reducing the posts from 3 to 2 in Ophthalmology without bifurcating the two posts category-wise and reducing one post, which no sensible reader of the corrigendum in the newspaper would understand the meaning of, much less a contestant.
16. It is then the submission of Mr.Patwalia that the respondents can take no advantage of the clause of increase or decrease of vacancies in Clause G (i) of Advertisement No.1 of 2010. The stand of the State in PARITOSH KUMAR paragraph 7 and 9 of the written statement is a facile attempt to cover up 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 12 : illegal actions by obfuscating the issues arising in the case. Besides, the instructions dated 25th June 2004 (R-2) relied upon by the respondents have no application to the facts of the case since they deal with cadres of less than 5 but the cadre of Senior Lecturers/Assistant Professors in the Department of Ophthalmology consists of 8 posts. The instructions have been dragged in with a view to confuse the court.
17. Service law does not allow bifurcation of a cadre on the basis of reservation law. It remains a single unit with reservation dovetailed into it to achieve the prescribed percentages of reservation and to facilitate which, reserve roster points are earmarked. It is difficult to approve of and for a person to successfully contend that in this case the cadre should be divided in the ratio 6:2 amongst 8 posts [as stated in the written statement] and to operate the aforesaid policy instructions dated 25th June 2004 accordingly. Even assuming that such a course is necessitated where two posts in the cadre of 8 had to be filled in by members of the scheduled caste through direct quota, even then such a recruitment process on an altogether new calculation should have been initiated in advertisement No.1 of 2010 itself, and if the official respondents wanted to proceed on such a premise based on the law of reservation then they would have to be put back on the correctional path by Court interference, to restore the imbalance created by the mess wholly contrary to the principles of equal opportunity, in order to re-balance those rights suitably.
18. It is trite law that only those posts which are advertised are required to be filled in the ratio and proportion in which they are notified to be filled and in accordance with rules. This was sadly not done in the present PARITOSH KUMAR case which when not done remains an incurable flaw in the recruitment 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 13 : process fatal enough to clothe this Court with the sacred armour of writs of certiorari and mandamus to nullify the illegal selection and appointment of the 5th respondent.
19. On the other hand, Mr. Rajiv Prashad, learned Additional Advocate General, Punjab relies on the defence of the State in the written statement and submits that no one can be granted the benefit of a mistake committed in counting the vacancies in accordance with rules. The 2nd respondent i.e. Dr. Jai Krishan (4th respondent) acted non-arbitrarily in correcting a mistake even if it was at the eleventh hour or without informing the public since a mistake committed by the Government is open to correction at any time and there is no limitation prescribed for exercise of such powers. If a service benefit legally available to a member of the reserved category is denied, that may violate the reservation policy as enabled by Articles 16(4) and 16(4A) of the Constitution which may not be giving a fair deal. He adds that the letter of appointment is by itself sufficient to show legal and valid authority for holding the post and therefore the writ must fail and the Court in quo warranto cannot lift the veil by a fishing inquiry into the nature of the appointment. He also contends that no person from the scheduled caste category, applicant or otherwise, is before the Court aggrieved and challenging the appointment of the 5th respondent and thus the petitioner has no locus standi to maintain this petition.
20. Counsel however fails to see that the principle of locus standi has no place in writs of quo warranto. The quo warranto jurisdiction is the heart, the soul, the conscience keeper and the guardian angel rescinding corrupt public appointments and the Court acts as a sentinel of the rule of PARITOSH KUMAR law to maintain purity of administration. The writ is issued only to check 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 14 : under what legal authority does the occupier sit and if it is accordance with law the writ is to be refused. It can be ignited by the good, the bad and the ugly but without personal cause or oblique motive. It can well be invoked by a criminal who is not denuded of his rights to question how his jailor holds the post. The public must have substantial interest not only in the occupier of the post but in the post itself as one affecting the life of the community. The writ may be refused if the post is of inferior class where no public dealing is involved and to leave such an appointment, if challenged in the garb of quo warranto or public interest litigation, to the person aggrieved to seek remedy through regular modes. On the point of lifting the veil and that this Court when confronted by an order even if illegal can act no further but only an drop the matter leaving the challenge through some other mode, the argument does not impress me. The present jurisdiction in my view is not curtailed by an injunctive barrier stopping the Court from going behind the order or letter of appointment to examine its constitutionality and whether it passes the tests of Part III of the Constitution while dealing with public posts. This jurisdiction is in many ways much wider than what the Court is expected to do while issuing writs of certiorari, mandamus and prohibition. The very fact that any citizen can ignite the jurisdiction without having to show his standing except to disclose his identity, it then becomes more a matter between the constitutional court and the appointing authority when set in motion and responses called then the petitioner takes the back seat. Having filed such a writ he loses the right to withdraw just as in PIL jurisdiction. The Court becomes the qui vive of maintaining purity in appointments to public office and remains constitutionally bound to examine PARITOSH KUMAR the legal validity of suspect orders of State Government and its functionaries 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 15 : brought before it and can even go into their conduct and correct a public wrong by issuing amendatory directions. This an obligation the court must fulfill when called upon to and not be seen abdicating its authority in a just cause. It is a different matter if a case justifies interference or not on full facts available after receiving the State response, but the duty in the first reflex is to protect public office by peeping into official record to know if all is well, the relief part being debatable in Court and a matter of opinion formed by applying legal principles to facts in case they demand. But it is well to remember the limitations placed by the Court itself in exercise of this jurisdiction. It is not to be used as a machine gun to slaughter appointments indiscriminately made in the lower echelons of public service, such as labourers, peons, daftries, clerks and sundry ministerial staff etc who may have no public face nor hold positions of trust, confidence and the like nor are involved in public dealing affecting rights of citizens. I would draw the line from where the members of the community starts getting involved interfacing everyday with public authorities in the multifarious activities the state performs then the case takes a different hue and many factors come into play. Interference for the sake of interference or upsetting an appointment on trifling argument is not the order of the day. But what may be called for is only a proper secondary review exercise by the Court to satisfy itself that everything is in order or is not. If it is not, then interference may be justified. I would most certainly put my penny in to count the teaching post of Senior Lecturer/Assistant Professor in Government Medical College, Patiala in the check list of quo warranto. And be interested enough to know who holds the post and how he came by it.
PARITOSH KUMAR 21. To return to the flow of Mr. Prashad's submissions and whether 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 16 : they should be accepted as a valid defence of the appointment, I should like to think, that assuming for a moment that there was a mistake in calculation of vacancies before the advertisement was published and the correction was done consciously and for good reason, even then the law requires that the recruitment process as far as the scheduled caste vacancy is concerned, should have been re-advertised or instead a corrigendum issued in the newspapers inviting applications from all those scheduled caste candidates who may have been eligible on the last date of submitting the application forms, but such a course was not adopted. Those not presently in sight were legally wronged. Neither was the roster register maintained by the department and duly checked by the Department of Welfare of SCs and BCs, Punjab produced to support the mistake in counting vacancies which may have been the best evidence, if produced, not that it would have made any material difference on the argument resting on the cornerstone of article 16 and violation thereof which is the touchstone of the case of the petitioner complaining of breach of principles of equality of opportunity apart from asserting that decision-making process leading to the appointment of the 5th respondent was blemished. I shudder to think of the serious consequences that may follow the quashing of the appointment of the 5th respondent where unfortunately many doctors eligible in in the year 2010 may have become overage and lost their opportunity forever in the re-conduct process which will follow in the event of success of this petition. Look at the harm that is wreaked by motivational factors and the havoc played by business deals behind closed doors and personal agendas destroying promotions and appointments and what these 'virtues' can do to the lives of innocent people PARITOSH KUMAR and the suffering public, victims of the caprice of the ruler of the day. 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 17 :
Constitutional tort is writ large in this case with no saving graces to act in aid of the usurper or his friend. The tortfeasor is most certainly the decision- maker and the participants in a stillborn appointment given life to play with the lives of the sick and the ailing.
22. The 5th respondent has not entered appearance before the Court probably because he couldn't muster strength enough to stand up in Court and support his appointment. As per office report, service on the respondents was complete on 31st January 2012.
23. The State has contested the case by filing a written statement on behalf of respondents No.1 and 2. The 4th respondent is the 2nd respondent as well but has not filed a personal reply to defend his actions and has depended on the State to justify the defence. Neither has the 5th respondent filed a separate reply to defend himself nor is represented through counsel to contest the case. Today as the case was called, no one appears for the 5th respondent. Since no one appeared for the 5th respondent despite many adjournments, he is proceeded ex parte. In these circumstances, the matter was heard for final disposal ex parte respondent No.5.
24. To sum up, I am unable to accept the grass root infirmity in the application form itself submitted on 17th September 2010 by a person applying under the scheduled caste category vacancy/post when none was advertised, yet strangely he was declared eligible and called for the interview which appears to have been only a mock drill and a sham with only one SC candidate in the fray.
25. The normal rule is that only the posts advertised category-wise can be filled up in the proportion determined without any increase or PARITOSH KUMAR decrease as was held for the first time by the Supreme Court in its landmark 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 18 : ruling in Hoshiar Singh v. State of Haryana and others, 1993 Suppl. 4 SCC 377 but the inflexible rule laid down therein has been marginally relaxed by the Supreme Court in Prem Singh v. Haryana State Electricity Board, 1996 (4) SCC 319 and then again in Varinder Singh Hooda v. State of Haryana and others 1999 (4) SCC 319 here relying on the 1957 circular which permitted appointments against future vacancies arising within six months of the date of recommendations of the Public Service Commission and then again softening to some extent the rigours of the rule declared in Hoshiar Singh and other cases. In Prem Singh an exception was carved out from the general rule in Hoshiar Singh where the Supreme Court observed as follows:-
"The State could deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment."
26. In adopting such a flexible approach the Court was guided by overriding public interest. The exception does not save this case where there was no such interest involved. Nor was a policy decision taken by Government in its policy making room in accordance with its rules of business to make the impugned changes. DRME could not have acted single handedly merely on his ipse dixit to turn the tide of the Advertisement No 1 of 2010 mixing the coast, the shore and the beach by a jugglery of impure PARITOSH KUMAR 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 19 : facts.
27. In neither of aforesaid three cases before the Supreme Court, a factual situation was involved as found in the present case where a post in the new category has been created for the first time, by an unpublished corrigendum and the recruitment made on the basis of the changed effected one day before the interview. It is equally well settled that a post in the new category cannot be sought to be filled without an advertisement or public notice. Such a selection as made in this case was not open to the eligible public to apply in search of direct recruitment and thus, would be a back door entry. I have no hesitation in holding that the 5th respondent was ineligible on account of age-bar and when selected, is an illegal into service and he can derive no undue benefit from an illegal appointment and to continue holding it. The post of Senior Lecturer/Assistant Professor in a premier Government Hospital is an important post in which the public at large has a vital interest and would attract jurisdiction in quo warranto proceedings for this Court to nullify such an appointment so as not to leave any impurity in public service and on public record. I would agree with each of the arguments raised by Mr. Patwalia that this is a fit case in which a writ of quo warranto should be issued to set aside the appointment of the 5th respondent obtained by illegal means.
28. To sum up, I hold that :
i) the 5th respondent was overage on the last date of receipt of application form, i.e., on 17.9.2010 for the post of Senior Lecturer/Assistant Professor as he had by then crossed the age of PARITOSH KUMAR 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 20 : 45 years and therefore, his application could not have been entertained and considered;
ii) Further, he could not be appointed against a reserved category post (SC) since none was advertized in the advertisement No.1 of 2010 nor in the corrigendum and the last minute change brought about by the 4th respondent directing the selection committee one day short of interview to recommend the name of a Scheduled caste candidate did not amount to advertizing the post since it was not put in public domain. Therefore, the appointment is unconstitutional.
29. For the foregoing reasons, the petition is allowed. A writ of quo warranto is issued to the State Government. The selection of the 5th respondent is nullified forthwith. The 5th respondent is ordered to be reverted to his previous post. The direct recruit post illegally occupied by him is declared vacant and will not be counted in the roster register as filled up and will be deemed to remain vacant from one day prior to the joining of the 5th respondent and will not be treated as consumed for the reason that an illegal and unconstitutional appointment made in breach of article 16 and in gross abuse of power is ab initio void as distinguished from a voidable appointment where on judicial review it is discovered after forensic debate as an appointment not being absolutely in conformity with service rules or the like [the corollaries when appointments are not made in accordance with rules as explained in State of West Bengal v. Aghore Nath Dey, (1993) 3 SCC 371] but was a result of a bona fide error of judgment committed by the appointing authority in ignorance or in misunderstanding of the law and on PARITOSH KUMAR 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 21 : removal of such an incumbent of a post brought under judicial review will be taken as 'consumed' with all legal consequences flowing there from. A distinction will also have to be kept in mind between "illegal" and "irregular" appointments as explained in Secretary, State of Karnataka v. Umadevi, (2006) SCC 1 while examining cases whether a post stands consumed or not, in the event of discharge from service following an "unconstitutional", "illegal" or "irregular" appointment. Valuable rights of others may rest on such declarations. It is also moot as to what would be the effect on "consumption" of post, and whether it should be deemed to be occupied or deemed vacant ab initio where such a declaration comes from the State department in the first instance upon termination of service or by Court for the first time on judicial review of administrative action setting aside the appointment. Therefore, it appears to follow a priori that a mere physical occupation of a vacancy/post when it is found illegally occupied and the appointment declared constitutionally bad by Court then it will not count mechanically towards "consumption" of post only to be thrown open for the next recruitment process and in such a case it can be argued, and I think successfully, that if the wait list period has not expired wherever rules fix its life span then person in waiting can be offered appointment if the name stands recommended or if the aggrieved party is already in Court claiming that the post is occupied by a usurper and he is next in waiting for direct recruitment in the merit list. As that I mean to say for the present in the context of this case is that such a usurper would take no credit towards experience or be heard to urge that he is entitled to retain salary for the period of usurpation on the principle of quantum meruit. He takes home PARITOSH KUMAR nothing except a liability to return money, when I see in this case that the 5th 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 22 : respondent applied in SC category in advance and in anticipation when the right to apply was not available. Since he has not filed reply or contested the case I would draw an adverse inference that he was a beneficiary of fraud practiced on public employment. Therefore, he cannot be heard to urge that the appointment was not caused by any fault of his nor did he practice deceit, misrepresentation or fraud and he should be let off altogether or somewhat lightly. How can the Court ignore this- I would have liked to ask him this question had he appeared and told his side of the story. Notwithstanding, he has reaped a rich harvest from February 2011 and now for a little short of four years. This petition was filed in the same year. It is now pay back time.
30. Resultantly, Government is free to make suitable temporary arrangement to man the post by charge of current duty by an in-house person who is otherwise eligible for the post and as thought fit in the exigencies of administration. Had the petitioner not secured direct recruitment by an illegal and unconstitutional process, he may have continued as an ad hoc Senior Lecturer/Assistant Professor against direct quota post with right of confirmation on due date on his seniority within his promotion quota or have faced reversion in the face of a direct recruit available, had one been appointed in accordance with law. The 5th respondent has deprived third parties under the original advertisement, as had applied, of their valuable rights who may not have come forward for unknown reasons. This is where the aggrieved person seeking certiorari is lost in the morass and quo warranto takes over to rule the day.
31. It is further ordered that in case, the 5th respondent has drawn PARITOSH KUMAR salary and service benefits over and above those of his previous post, which 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 23 : he must have, apart from enjoying the elevated status, then the monetary difference is directed to be regurgitated jointly and severally by the 4th and 5th respondents from their salaries and pension (in case retired) calculated as payable in easy installments to reimburse the Government till the difference is satisfied in the Government Treasury.
32. However, such orders of recovery shall be passed only after holding an enquiry against the erring officer/officers who engineered and participated in making an unconstitutional appointment contrary to law and in violation of the constitutional scheme, by calling for their explanations including from those who actively or passively participated in the selection process at the Baba Farid University of Health Sciences, Faridkot so innocently, in such a pliable manner and without any murmur, not to say without reflection and due application of mind. Those involved in the portals of the university in the hurried interview process enabled matters to come to such a pass by failing to refer the vital issue to the State Government for advice for which it could have simply postponed the interviews for a week or two and awaited response. If the Public Service Commission had been discredited in its working that did not mean that they earn discredit for the university. Once bitten twice shy. Heavens would not have fallen had the interviews of only 11 contestants in the ophthalmology department been postponed for a week or two to await advice of State Government. In fact DRME should have done that, had his vision not been coloured by predication and predisposition of mind.
33. So far as the University is concerned it was after all acting as a delegate of the State Government as an expert body to make the selection PARITOSH KUMAR and was responsible to act fairly under the Advertisement I of 2010 and its 2014.12.12 11:39 I attest to the accuracy and authenticity of this document CWP No.17954 of 2011 : 24 : terms and conditions unless changed by State Government in writing and addressed to it directly or acting through the department concerned routed through the proper channel in the chain of command together with the view the Welfare Department, Punjab on the subject.
34. The DRME, Punjab is not the State Government nor can pretend to be. He does not foot the salary bill of the 5th respondent which has gone into the pocket of a usurper of public office proactively helped by the former as the Head of the Department holding public office in public trust acting as a trustee of public property and governed by conduct exemplified by the doctrine of uberrimae fides but to the contrary he violated every shred of reason tearing articles 14 and 16 to bits. "All power is a trust; that we are accountable for its exercise; that from the people and for the people all springs, and all must exist." said Benjamin Disraeli, 1st Earl of Beaconsfield who twice served as Prime Minister of England.
(RAJIV NARAIN RAINA) JUDGE December 1, 2014 Paritosh Kumar PARITOSH KUMAR 2014.12.12 11:39 I attest to the accuracy and authenticity of this document