Punjab-Haryana High Court
Gs Ghuman vs State Of Punjab And Others on 18 October, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.7850 OF 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.7850 OF 2011
DATE OF DECISION: OCTOBER 18, 2012
GS Ghuman .......Petitioner
Versus
State of Punjab and others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.DS Patwalia, Advocate for the petitioner.
Mr.Suvir Sehgal, Additional Advocate General, Punjab.
Mr.RK Malik, Senior Advocate with
Mr.Vijay Dahiya, Advocate for respondent No.3.
Mr.Anupam Gupta, Senior Advocate with
Mr.Jasmandeep Singh, Advocate for respondent No.4.
Mr.Gurminder Singh, Advocate for respondent No.5.
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TEJINDER SINGH DHINDSA, J.
This order shall decide Civil Writ Petition Nos.7850 of 2011 (GS Ghuman v. State of Punjab and others), 10584 of 2011 (Gurloveleen Singh and others v. State of Punjab and others), 11134 of 2011 (Ritu Aggarwal v. State of Punjab and others) and 10606 of 2011 (Malwinder Singh Jaggi and others v. State of Punjab and others). The challenge in these petitions is to the CIVIL WRIT PETITION NO.7850 OF 2011 -2- order dated 28.12.2010 whereby the State Government has determined the seniority of PCS (Executive Branch) Officers appointed on the basis of PCS (Executive Branch) and Allied Services Examination held pertaining to the recruitment process of 1990. As common facts and questions of law arise in these petitions, they have been taken up together. Facts, however, are being noticed from Civil Writ Petition No.7850 of 2011 (GS Ghuman v. State of Punjab and others).
2. The petitioner as also the private respondents were candidates for selection to the PCS (Executive Branch) in the selection process pertaining to the year 1990. There were 26 posts of PCS (Executive Branch) which were filled up in such process of selection through Register 'B' meant for direct recruitment under the Punjab Civil Services (Executive Branch) (Class-I) Rules (hereinafter to be referred to '1976 Rules'). Fifteen posts were for General Category, six posts were reserved for Scheduled Castes category, four were reserved for ex-Serviceman category and one for the Freedom Fighter category. Twenty six candidates were appointed to the PCS (Executive Branch) in such selection process. Vide order dated 2.12.1992, Annexure P2, allocation of candidates, as accepted candidates in Register 'B' in terms of the provisions of 1976 Rules for appointment to the PCS (Executive Branch) was made. The name of the petitioner who belongs to the General category was at Serial No.7 in such list, the name of respondent No.3 who belongs to the Scheduled Caste category was at Serial No.18 and names of respondents No.4 and 5 who belong to ex-Serviceman category, were reflected at Serial CIVIL WRIT PETITION NO.7850 OF 2011 -3- Nos.22 and 23 respectively. In such order dated 2.12.1992, Annexure P2, it had been stipulated that such appointments are subject to the condition of adjustment, if any, with regard to the eligibility of a candidate and the inter se seniority of the candidates belonging to the same category.
3. A gradation list was issued by the State as corrected upto 1.1.1993, Annexure P3, in terms of which the petitioner was placed at higher position viz-a-viz the private respondents. A reference in the pleadings has also been made to the gradation list for Register 'B' corrected upto October 2010, Annexure P4, wherein again the name of the petitioner was reflected higher than the private respondents. On 12.3.2008, a tentative seniority list of the PCS (Executive Branch) Officers recruited in pursuance to the result of the recruitment process for the year 1990 was circulated, Annexure P5. A perusal of the same would reveal that notice had been taken of the judgment of the Hon'ble Supreme Court of India in Civil Appeal No.6373 of 2001 "Arvinder Singh Bains v. State of Punjab" as also the decisions of the Hon'ble Apex Court in Ajit Singh Januja and Ajit Singh-II and it was in purported compliance of the aforesaid judgments that the tentative seniority list had been issued. In terms of such tentative seniority list dated 12.3.1986, the petitioner was shown at Serial No.171, respondent No.3 was shown at Serial No.159 and respondents 4 and 5 were shown at Serial Nos.157 and 161 respectively. The petitioner filed objections to such tentative seniority list taking a specific stand that the judgment of the Hon'ble Supreme Court in the case of Ajit Singh Januja had been CIVIL WRIT PETITION NO.7850 OF 2011 -4- wrongly applied.
4. In the objections, it was stated that the tentative seniority list was in complete violation of the statutory provisions contained in the 1976 Rules and that the names of the petitioner as well as the private respondents had been entered in the year 1992 upon allocation in the order of merit and such position had continued unchallenged for over a period of almost 19 years and as such, the seniority position could not have been disturbed in such an arbitrary fashion.
5. It is in pursuance to the finalization of such tentative seniority list dated 12.3.2008 that the final impugned order dated 28.12.2010 has been issued finalizing the seniority of the PCS (Executive Branch) pertaining to the recruitment process of the year 1990 wherein the name of the petitioner has been shown at Serial No.171 and private respondents No. 3 to 5 have been shown at Serial Nos. 159,157 and 161 respectively. It is in the light of such brief factual background that the present writ petition impugning the order dated 28.12.2010 at Annexure P8 has been filed.
6. I have heard Mr.Rajiv Atma Ram, learned Senior Advocate, Mr.DS Patwalia, Advocate, Mr.Amol Rattan Singh, Additional Advocate General, Punjab, Mr.RK Malik, learned Senior Advocate, Mr.Gurminder Singh, Advocate and Mr.Anupam Gupta, learned Senior Advocate at length.
7. The order dated 28.12.2010 has been assailed by the petitioner in terms of making following submissions:
i) It is contended that the merit of the qualified CIVIL WRIT PETITION NO.7850 OF 2011 -5- candidates was determined on the basis of letter dated 2.12.1992, Annexure P1, and it was on the basis of such merit list that the names of the petitioner and private respondents were entered in Register 'B' as per Rule 14 of the 1976 Rules. Such merit position on the basis of which seniority stood determined, was settled in the year 1992 itself and as such, in terms of the impugned order, the seniority inter se the candidates is sought to be disturbed and the same is unsustainable in law.
ii) The impugned order dated 28.12.2010 is liable to be set aside on the short ground that in terms thereof, the settled position of seniority is being re-opened and altered after a period of about 19 years. It has been urged that the rights inter se the parties stood already crystalized and as such, cannot be re-
opened after the lapse of such a long period. In support of such contention, reliance has been placed on the judgments of the Hon'ble Supreme Court in BS Bajwa v. State of Punjab, 1998(1) SCT 670:
Shiba Shankar Mohapatra & others v. State of Orissa and others, (2010)12 SCC 471 and H.S.Vankani and others v. State of Gujarat and others, (2010)4 SCC 301.
iii)Another limb of the submission made at (ii) above was that the principles of waiver and acquiescence would be applicable as the private respondents had CIVIL WRIT PETITION NO.7850 OF 2011 -6- accepted the seniority since the year 1992. The merit position having been determined in terms of order dated 2.12.1992 and the names having been entered into Register 'B' in the year 1992 itself, such order of merit had never been challenged by the private respondents and the same, accordingly, had attained finality. The respondents having accepted such position as regards merit as also seniority could not alter such position in terms of passing of the impugned order dated 28.12.2010.
iv)The impugned seniority has been issued in terms of wrongfully placing reliance on the judgments of the Hon'ble Supreme Court in Ajit Singh Januja's case as the same would have no application to the facts of the present case inasmuch as the petitioner belongs to the general category and respondents No.4 and 5 belong to the ex-Serviceman category.
v) It has been argued that the private respondents belonging to the ex-Serviceman category had appeared in the open competitive examination in terms of having availed relaxed standards as they had not appeared in the optional subjects and as such, they could not have competed with the candidates belonging to the general category like the petitioner who had appeared in all the papers.
The submission raised was to the effect that a level playing field would be of candidates who have not CIVIL WRIT PETITION NO.7850 OF 2011 -7- availed of any concessions or relaxation. All things have to be equal for all the candidates. On the strength of such submission, it was contended that candidates belonging to the ex-Serviceman category i.e. respondents No.4 and 5 would necessarily have to rank below the general category candidates as there could be no determination of merit inter se. Towards such submission, reliance has been placed upon two judgments of the Hon'ble Apex Court in Jitendra Kumar Singh and another v. State of Uttar Pradesh and others, (2010)3 SCC 119 and Union of India v. Ramesh Ram and others, (2010)7 SCC 234.
vi)The criteria adopted by the Punjab Public Service Commission towards preparation of combined merit list i.e. on the basis of marks secured in the papers by the candidates of different categories in which they appeared as per Rules and by working out the percentage of marks obtained in these papers as well as viva voce was totally alien to the provisions of the 1976 Rules. Reliance in this regard was placed upon Naraindas Indurkhya v. The State of M.P. and others, AIR 1974 SC 1232 to contend that any executive action taken by the State Government would have to be supported by legislative authority. It was urged that there was no legislative sanction insofar as adoption of such criteria whereby a combined merit list of the general category CIVIL WRIT PETITION NO.7850 OF 2011 -8- candidates as also candidates belonging to the ex- Serviceman category having availed the benefit of relaxed candidates has been prepared and on the basis thereof, the impugned order dated 28.12.2010 determining the seniority inter se had been issued.
vii)In terms of placing reliance upon Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851, it was contended that the validity of an order has to be adjudged by the reasons so mentioned therein and such order cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. In this regard, it was argued that the impugned order was cryptic and non-speaking and the same was sought to be defended in terms of relying upon the merit list dated 21.4.2005 which does not even find mention in such impugned order.
viii)Lastly, malafides were attributed to respondent No.3 who was stated to be posted as Secretary of the Punjab Public Service Commission and it was urged that the order inviting objections to the tentative seniority list issued in March, 2008 and the entire action of unsettling the settled position of seniority was done at her behest, she being an interested party.
8. On the contrary, the order dated 28.12.2010 was defended on behalf of respondents in terms of taking a stand that CIVIL WRIT PETITION NO.7850 OF 2011 -9- the petitioner as also the private respondents were allocated by the Department of Personnel and Administrative Reforms (PP-III Branch) vide letter dated 2.12.1992, Annexure P1, and such category-wise allocation was not as per combined merit. A positive stand was taken on behalf of the respondents that the list at Annexure P1 not being in the nature of a combined merit, the seniority inter se the candidates had never been determined in the year 1992. It was stated that the gradation lists that were issued from time to time by the State Government did not reflect the inter se seniority of the Officers. Such gradation lists at Annexures P3 and P4 could not be termed as seniority lists for the precise reason that the same were not based on a combined merit prepared by the Punjab Public Service Commission. It was contended for the respondents that the Government of Punjab issued circulars dated 22.10.1999 and 23.10.2000 towards implementation of Ajit Singh Januja's judgment whereby the Government had taken a decision that seniority would be required to be determined by not treating roster points as seniority points but rather the same was to be determined as per merit list prepared by the Punjab Public Service Commission. It was in pursuance thereto that a combined merit list for the years 1987 to 1990 was prepared by the Punjab Public Service Commission and forwarded to the Government to facilitate the preparation of seniority of PCS (Executive Branch) Officers. Such combined merit list pertaining to PCS (Executive Branch) and other Allied Services Examination was prepared and sent first at point of time by the Punjab Public Service Commission to the State Government CIVIL WRIT PETITION NO.7850 OF 2011 -10- vide letter dated 4.7.2001. Such combined merit list was further revised in terms of letter dated 21.4.2005 and it was in pursuance thereto that the tentative seniority list was issued in March, 2008 inviting objections and thereafter finalized in terms of order dated 28.12.2010. Accordingly, it has also been urged on behalf of the private respondents that since the order dated 2.12.1992, Annexure P2, was not an inter se seniority and seniority, in fact, had never been determined at that point of time, the question of challenging the same never arose.
9. Still further, it has been argued on behalf of the private respondents that the judgments relied upon on behalf of the petitioner pertaining to the ex-Serviceman candidates having availed of concessions/relaxed candidates would have no applicability in the light of the peculiar facts of the present case. The stand taken by the official respondents is that the seniority finalized in terms of order dated 28.12.2010 was in terms of the mandate of statutory provisions contained in the 1976 Rules. Furthermore, it has been urged on behalf of the respondents that every act of the State Government exercising its executive power would not require legislative sanction. The executive power of the State under Article 162 of the Constitution of India is co- extensive with its legislative power.
10. Before considering the rival contentions raised on behalf of the parties, it would be apposite to refer to the statutory provisions relevant for determination of the controversy arising in the present case. Rules 4,7,8,12,13-A,14,18,19 and 21 of the 1976 Rules read as follows:
CIVIL WRIT PETITION NO.7850 OF 2011 -11-
"(4). All appointments to the Services shall be made by the Government in consultation with the Commission. (7). Appointment to the Service shall be made in manner herein provided from amongst accepted candidates whose names have been duly entered in accordance with these rules in the Registers of accepted candidates to be maintained under these rules.
(8). The following Registers of accepted candidates shall be maintained by the Chief Secretary to Government, Punjab namely:-
(1) xxxxxxxx (2) xxxxxxx (3) xxxxxxx (4) register B in which shall be entered the name of persons accepted as candidates as a result of the (the main competitive examination), and (5) xxxxxxx (12). (1) A preliminary competitive examination, the regulations of which are contained in Appendix II of these rules, shall be held at any place in the State of Punjab as and when notified by the Government through the Commission for the purpose of selection of candidates for admission to the main competitive examination as specified in rule 13-A. (2) Notice of the date fixed for the (preliminary competitive examination shall be published in the CIVIL WRIT PETITION NO.7850 OF 2011 -12- Punjab Government Gazette).
(13-A). (1) A main competitive examination, the regulations of which are contained in Appendix III of these rules, shall be held at any place in the State of Punjab as and when notified by the Government through the Commission for the purpose of selection by competition of as many candidates for the service as Government may determine.
(2) Notice of the date fixed for the main competitive examination shall be published in the Punjab Government Gazette.
(3) No candidate shall be allowed to sit in the main competitive examination, unless she has qualified the preliminary competitive examination in terms of the provision of rule 12.
(4) the total number of candidates to be admitted to the main competitive examination shall not exceed thirteen times the total number of vacancies determined by the Government under sub-rule (1).
(14). Subject to the provision of (rules 13 and 13-A) Government shall include in Register 'B' in order of merit determined by the Commission, the names of such number of candidates as it may, from time to time, determine, from amongst those who have been declared as qualified in the (main competitive examination) by the Commission.
CIVIL WRIT PETITION NO.7850 OF 2011 -13-(18). The Government shall make appointments to the Service in pursuance of rule 7 from amongst the candidates entered on the various Registers in a slab of 100 vacancies as follows :-
i) the first vacancy and thereafter every
alternative vacancy shall be filled from
amongst candidates borne on Register 'B'.
ii) the 2nd, 8th, 14th, 20th, 26th, 32nd, 38th, 44th, 50th, 56th, 62nd, 68th, 74th, 80th, 86th, 92nd, 96th and 100th vacancy shall be filled from amongst the candidates borne on Register A-I;
iii)the 4th, 10th, 16th, 22nd, 28th, 34th, 40th, 46th, 52nd, 58th, 64th, 70th, 76th, 82nd, 88th and 98th vacancy shall be filled from amongst candidates borne on register A-II.
iv)The 12th, 30th, 42nd, 54th, 66th, 78th and 90th vacancy shall be filled from amongst the Excise and Taxation officers accepted as candidates on Register A-III.
v) The 18th, 36th, 60th and 84th vacancy shall be filled from amongst the District Development and Panchayat Officers or Block Development and Panchayat Officers accepted as candidates on Register A-III; and
vi)the 6th, 24th, 48th, 72nd and 94th vacancy shall be filled from amongst the candidates on register 'C'.
(19). Candidates on the same Register shall be appointed to the Service in the order of merit assigned to them by the Commission while selecting as a batch for that particular Register.
(21). The seniority of officers appointed to the Service shall be determined in accordance with the order of CIVIL WRIT PETITION NO.7850 OF 2011 -14- their appointment to Service; provided that -
a) if the order of appointment of any candidate is cancelled under the provisions of rule 20 and such candidate is subsequently appointed to the Service, the order of appointment for the purpose of this rule shall be determined by the date of such subsequent appointment;
b) if any officer appointed to the Service fails to qualify himself for substantive permanent appointment within the prescribed period of probation, the Government may determine whether the date of his appointment for purpose of this rule shall be postponed by a period not exceeding the period by which such officer's substantive permanent appointment is delayed beyond the prescribed period of probation;
c) the persons appointed as a result of earlier selection from a Register shall be senior to those appointed as a result of subsequent selection from the same Register."
11. A perusal of the above produced relevant provisions of 1976 Rules would make it apparent that all appointments to the service shall be made by the Government in consultation with the Punjab Public Service Commission. In terms of Rule 7 of 1976 Rules, the appointment to the service is to be made from amongst accepted candidates whose names have been duly entered in accordance with the Rules in the registers of accepted candidates. In relation to the present controversy, Rule 8(4) of 1976 Rules governs Register 'B' wherein names of persons are to be entered as accepted candidates in pursuance to the result of the main competitive examination. Rule 12 postulates the holding of a preliminary competitive examination to be conducted through the CIVIL WRIT PETITION NO.7850 OF 2011 -15- Punjab Public Service Commission for purposes of selection of candidates for admission to the main competitive examination as specified in Rule 13-A of 1976 Rules. As per the mandate of Rule 14 of 1976 Rules, the Government shall include in Register 'B', the names of such candidates strictly in order of merit determined by the Punjab Public Service Commission who have been declared as qualified in the main competitive examination by the Commission. Under Rule 19 of 1976 Rules, the candidates on the same Register shall be appointed to the service in the order of merit assigned to them by the Commission while selecting as a batch for that particular Register. Rule 21 of 1976 Rules regulates seniority and mandates the same to be determined in accordance with the order of the appointment of such Officers to service.
12. Rules 3,4,5 and 9 of the Punjab Recruitment of ex- Serviceman Rules, 1982 Rules (hereinafter to be referred as '1982 Rules') read in the following terms:
"(3). Extent of Application. - These rules shall apply to all the State Civil Services and Posts connected with the affairs of the State of Punjab, except the Punjab Vidhan Sabha Secretariat Service and the Punjab Superior Judicial Service.
(4). Reservation of Vacancies. - (1) Subject to the provisions of rule 3, fifteen per cent of the vacancies to be filled in by direct appointment in all the State Civil Services and Posts connected with the affairs of the State of Punjab shall be reserved for being filled in by CIVIL WRIT PETITION NO.7850 OF 2011 -16- recruitment of Ex-Servicemen:
Provided that the total number of reserved vacancies including those reserved for the candidates belonging to the Scheduled Castes, Scheduled tribes and Backward Classes shall not exceed fifty per cent of the posts to be filled in a particular year.
(2) Where a reserved vacancy remains unfilled for non-availability of a suitable Ex-Serviceman, such vacancy may be filled in, temporarily from any other source in accordance with the rules regulating the recruitment and the conditions of service of persons appointed to such posts as if the vacancy was not reserved:
Provided that the reserved vacancy so filled in shall be carried forward for the subsequent occasions for recruitment spreading over a period not exceeding four years, whereafter the vacancy in question shall be treated as unreserved.
(5). Appointment through competitive examination. -
Notwithstanding anything contained in the concerned Service Rules, in case an appointment to any post governed by those rules is made through competitive examination, -
i) the maximum chances to be given to an Ex-
Serviceman for appearing in the said
examination shall not exceed three; and
ii) the Ex-Serviceman shall not be required to
appear in the optional subject, if any, specified for that examination.
CIVIL WRIT PETITION NO.7850 OF 2011 -17-(9). General. - (1) In matters not specifically provided for in these rules, a person appointed against a reserved vacancy shall be governed by the concerned Service Rules.
(2) All concerned Service rules shall be subject to the provisions of these rules and the said rules shall be construed accordingly.
(3) Nothing in these rules shall be construed as depriving any person to whom these rules apply of any right which had accrued to him under the rules, notifications or orders in force immediately before the commencement of these rules."
13. In terms of Rule 3 of 1982 Rules, such Rules apply to all State Civil Services and Posts connected with the affairs of the State of Punjab except Punjab Vidhan Sabha Secretariat Service and Punjab Superior Judicial Service. In terms of Rule 4 of 1982 Rules, 15% of the vacancies to be filled in by direct appointment in all the State Civil Services and Posts connected with the affairs of the State of Punjab stand reserved for being filled in by recruitment of ex-Serviceman. Rule 5 of 1982 Rules opens with a non-obstante clause to the effect that notwithstanding anything contained in the concerned Service Rules, in case an appointment to any post governed by those Rules is made through competitive examination, the ex-Serviceman shall not be required to appear in the optional subjects, if any, specified for that examination. Rule 9 of 1982 Rules crystalizes the matter further and it is provided that in matters not specifically provided for in these Rules, a CIVIL WRIT PETITION NO.7850 OF 2011 -18- person appointed against a reserved vacancy shall be governed by the concerned Service Rules and further mandates that all concerned Service Rules shall be subject to the provisions of these Rules and the said Rules shall be construed accordingly. In terms of the repealing clause, the Punjab Government National Emergency (Concession) Rules, 1965; the De-mobilised Armed Forces Personnel (Reservation of Vacancies in the Punjab State Non-Technical Services) Rule, 1968; the De-mobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Services) (Executive Branch), Rules 1972; and the Released Indian Armed Forces Personnel (Determination of Eligibility for Promotion) Rules, 1977 stand repealed.
14. The first question that arises for consideration before this Court is as to whether the list at Annexure P1 issued in the year 1992 can be construed as a combined merit list depicting comparative merit of all the candidates belonging to various categories including the petitioner and the private respondents so as to determine seniority in terms of the 1976 Rules?
15. In the reply filed on behalf of respondent No.2- Punjab Public Service Commission, Patiala, it has been stated that a recommendation in the form of category-wise merit list was sent to the State Government vide letter dated 3.7.1992. On the basis thereof, the names of the petitioner as also private respondents were allocated by the Department of Personnel and Administrative Performance in terms of letter dated 2.12.1992, Annexure P1, and such category-wise allocation was not in pursuance to any combined merit sent by the Punjab Public CIVIL WRIT PETITION NO.7850 OF 2011 -19- Service Commission. This is the specific stand taken in the reply filed on behalf of the State Government. Letters dated 31.5.2000 and 22.3.2001, Annexures R2 and R3 respectively, appended along with the reply filed on behalf of respondent No.1 would clearly reveal that the combined merit list of all categories of candidates whose names were recommended by the Public Service Commission on the basis of 1984 examination and subsequent examinations were still awaited from the Public Service Commission. Still further, in terms of letter dated 22.3.2001, Annexure R3, addressed to the Secretary, Punjab Public Service Commission, it was clearly recited that in pursuance to the law laid down by the Hon'ble Supreme Court in Ajit Singh Januja and Ajit Singh-II, a combined merit list of PCS Officers recruited to the PCS (Executive Branch) from 1989 to 1999 be sent by the Commission. It is in response thereto that vide letter dated 4.7.2001, Annexure R1, the combined merit list of all categories prepared on the basis of merit of PCS (Executive Branch) and other Allied Services Examination for the years 1987,1988,1989,1990 and 1998 were sent by the Punjab Public Service Commission to the State Government. A perusal thereof would reveal that the criteria adopted by the Commission for the preparation of the combined merit list including the one pertaining to the recruitment process of the year 1990 was also disclosed inasmuch as it was stated that such combined merit list had been prepared by the Commission on the basis of marks secured in the papers by the candidates of different categories in which they appeared as per Rules and by working out the CIVIL WRIT PETITION NO.7850 OF 2011 -20- percentage of marks obtained in these papers as well as in viva voce. The reply on behalf of the Commission-respondent No.2 would further reveal that such combined merit list pertaining to the recruitment process of the year 1990 sent vide letter dated 4.7.2001 stood further revised on account of the inclusion of the name of one Shri Bakhtawar Singh, a candidate of 1990 examination and as such, the revised combined merit list was sent vide letter dated 21.4.2005 which stands appended as Annexure P7 along with the writ petition. As such, it is on the basis of such combined merit list submitted first in point of time on 4.7.2001 by the Commission and thereafter revised in terms of letter dated 21.4.2007 that has formed the basis of the issuance of tentative seniority list in March 2008 and thereafter finalized after inviting objections in terms of the order dated 28.12.2010.
16. Such factual position would clearly demonstrate that the letter dated 2.12.1992, Annexure P1, was merely an order of allocation issued by the Personnel and Administrative Reforms Department of the State Government, but did not contain the names of the candidates in the order of merit. That apart, even a perusal of such list dated 2.12.1992 would reveal that general category candidates were placed enbloc from Serial Nos.1 to 15, candidates belonging to SC (Balmiki/Mazhabi Sikh) were placed at Serial Nos.16 and 17, thereafter candidates belonging to SC, other categories were placed from Serial Nos.18 to 21 followed by candidates belonging to ex-Serviceman category from Serial Nos.22 to 25 and at the very end, a candidate belonging to the Freedom Fighter category was reflected at Serial No.26. Even the CIVIL WRIT PETITION NO.7850 OF 2011 -21- gradation lists that were issued from time to time by the State Government at Annexures P3 and P4 would clearly reveal that the same had been marked to the effect that the seniority of the Officers of the batch of 1990 i.e. the present petitioner and private respondents is yet to be fixed and the same would be evident from the mark (*) that was specifically indicated on the bottom of each page of the gradation list. Such gradation lists issued from the year 1993 to the year 2010 could not be construed as being reflective of the seniority position. In the order dated 2.12.1992, Annexure P2, it had been specifically stipulated that the appointments were subject to the conditions of adjustment with regard to the eligibility of a candidate and the inter se seniority of the candidates belonging to the same category. In the light of the facts of the present case, the expression "same category" as contained in the order dated 2.12.1992 would be construed to mean relating to Register 'B'. Furthermore, under Rule 21 of the 1976 Rules, the seniority of the Officers has to be determined in accordance with the order of their appointment and such Rule is required to be read with Rule 18 and, accordingly, the inter se seniority has to be fixed in accordance with the order of appointment by applying the roster provided under Rule 18. The expression "in accordance with the order of their appointment" would mean the order of merit determined by the Commission. Such merit had clearly not been determined in terms of the order dated 2.12.1992.
17. As such, it is clear that in terms of the list at Annexure P1 dated 2.12.1992, the names furnished therein were not in CIVIL WRIT PETITION NO.7850 OF 2011 -22- order of merit in pursuance to any exercise or determination of a combined merit list of the candidates belonging to different categories and as such, the assertion made on behalf of the petitioner that seniority inter se stood determined in the light of Annexure P1, is based on a factually incorrect premise. Having so held, even the contention raised on behalf of the petitioner that in terms of the impugned order, the settled position of seniority that had held good for 19 years was sought to be re- opened pales into insignificance.
18. Learned counsel for the petitioner has made a pointed reference to memo dated 29.3.2011 appended as Annexure R-4/2 along with the reply filed on behalf of respondent No.4 whereby information had been provided under the provisions of the Right to Information Act which would show that the private respondents No.4 and 5 belonging to the ex-Serviceman category had not appeared in the optional subjects. Relying upon such document, the argument was raised that a reserved category candidate cannot compete with the open category candidates having availed relaxation pertaining to the prescribed standards. Consequently, it has been urged that such ex-Serviceman candidates would have to rank below the general category candidates in any process of determination of merit and consequently, cannot steal a march as far as seniority inter se is concerned.
19. Such submission would require examination in the light of the statutory provisions. Under Rule 8(4) of the 1976 Rules, the Registers of accepted candidates are to be maintained and in CIVIL WRIT PETITION NO.7850 OF 2011 -23- Register 'B', the names of persons accepted as candidates are to be entered pursuance to a result of the main competitive examination. Rule 12 of the 1976 Rules contemplates a preliminary competitive examination to be held for the purpose of selection of candidates for admission to the main competitive examination as specified in Rule 13-A of the 1976 Rules. Under Rule 13-A, the main competitive examination is to be conducted by the Commission in the light of the regulations which are contained in Appendix III of the 1976 Rules. Under Appendix-III which laid down the regulations relating to the subjects and standards of the main competitive examination, it is stipulated that such main competitive examination shall include compulsory and optional subjects and every candidate shall take all the compulsory subjects and not more than three of the optional subjects.
20. Under the 1982 Rules which apply to all the State Civil Services and Posts connected with the affairs with the State of Punjab and wherein 15% of the vacancies to be filled by direct appointment stand reserved for ex-Serviceman, Rule 5 mandates that notwithstanding anything contained in the concerned service Rules in case an appointment to any post governed by those Rules is made through competitive examination, the ex- Serviceman shall not be required to appear in the optional subject, if any specified for that examination. Under Rule 9 of 1982 Rules, it is postulated that the concerned service Rules shall be subject to the provision of these Rules and the said Rules shall be considered accordingly.
CIVIL WRIT PETITION NO.7850 OF 2011 -24-
21. The Scheme of the 1982 Rules shows that the same are in the nature of a beneficial act of legislation for the ex- Serviceman. The provisions would require to be interpreted in a purposive manner so that the intent and purpose of such statutory provisions is served. It is in terms of the mandate of Rule 5 of the 1982 Rules that respondents No.4 and 5 belonging to the ex-Serviceman category did not appear in the optional subjects. The 1976 Rules and to be specific, Rule 13-A as also Appendix-III would have to be read in the light of Rule 5 of the 1982 Rules insofar as the ex-Serviceman category is concerned. If the contention raised on behalf of the petitioner is accepted in relation to relaxed standards and thereby such reserved category of ex-Serviceman candidates not to even compete with the general category candidates, the obvious consequence that would follow is that candidates of the ex-Serviceman category in every eventuality would rank at the tail end. Such a conclusion would be absurd and would negate the intention of the legislature and frustrate the statute itself. It would also require notice that under the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Services) (Executive Branch) Rules, 1972, apart from the exemption to appear in the optional subjects for the ex-Serviceman having been provided in Rule 2, it was also stipulated in Rule 4, sub-clause (d) that all candidates appointed against the reserved vacancies under Rule 2 would rank below the candidates appointed by direct recruitments in the year in which the former candidates are allotted. The 1972 Rules stand repealed in terms of the 1982 Rules. The acceptance of the CIVIL WRIT PETITION NO.7850 OF 2011 -25- contention raised on behalf of the petitioner pertaining to relaxed candidates would also have the effect of revival of a repealed provision.
22. Still further, the reliance placed by the learned counsel for the petitioner on the judgments of the Hon'ble Supreme Court in Jitendra Kumar Singh v. State of Uttar Pradesh and others and Union of India v. Ramesh Kumar (supra) would have no applicability to the facts of the present case. In case of Jitendra Kumar Singh (supra), the precise issue that came up for consideration before the Hon'ble Apex Court was as to whether an OBC who had applied exercising his option as a reserved category candidate thus becoming eligible to be considered against "reserved vacancy", can also be considered against an unreserved vacancy if he/she secures more marks than the last candidate in the general category. Likewise, in the case of Union of India v. Ramesh Kumar (supra), the question that arose was as to whether candidates belonging to reserved category who get recommended against general/unreserved vacancies on account of their merit (without the benefit of any relaxation/concession), can opt for a higher choice of service earmarked for a reserved category and thereby migrate to reserved category. Such question came to be examined in the light of the relevant statutory provisions i.e. the Civil Services Examination Rules (amended vide notification dated 4.12.2004). The afore-noticed two judicial precedents would not apply herein inasmuch as the ex-Serviceman category in the present case were not seeking migration but were selected in their own category. CIVIL WRIT PETITION NO.7850 OF 2011 -26-
23. In the light of the statutory mandate whereby candidates belonging to the ex-Serviceman category were not to appear in the optional subjects, under Rule 5(2) of the 1982 Rules and, on the other hand, Rule 13-A read with Appendix-III of the 1976 Rules require the candidates pertaining to Register 'B' to appear in the compulsory subjects as also optional subjects in the main competitive examination, it was certainly open for the Commission to evolve and adopt a criteria in determining merit inter se the candidates. Under Clause 8 of Appendix-III of 1976 Rules, it is stipulated that the names of qualified and unqualified candidates shall be arranged in the order of merit according to the aggregate marks obtained at the main competitive examination. Such provision would have to be read in the light of Rule 5(2) of the 1982 Rules and would require a harmonious construction in the light of the settled principle of interpretation of statutes. Such principle was clearly noticed and enunciated by the Hon'ble Supreme Court in P.Raghava Kurup and another v. V.Anantha Kumari and others, (2007)9 SCC 179 and it was held in the following terms:
"Therefore, the intention of the rule-framing authority can be brought forth by reading these two provisions harmoniously. The settled principle of interpretation of statute is that if two rules can be read harmoniously and the object sought to be achieved can be achieved without violation of any rule then it should be so read. Secondly, it may also be relevant to mention that Note (1) to Rule 1 was inserted in1982 CIVIL WRIT PETITION NO.7850 OF 2011 -27- subsequently knowing fully well that Rule 43-B starts with non obstante clause. Therefore, the note which is subsequent to the Rules of 1959 can be read harmoniously without doing any violence to Rule 43- B."
24. Insofar as the ex-Serviceman category is concerned, Rule 5 is couched in categoric terms and it starts with a non- obstante clause to the effect that in case of appointment through competitive examination notwithstanding anything contained in the concerned service Rules, the ex-serviceman shall not be required to appear in the optional subjects. Rule 9, sub-clause (2) of 1982 Rules further mandates that all concerned service Rules shall be subject to the provisions of these Rules. Accordingly, it is in the light of such provisions of 1976 Rules and 1982 Rules having been construed harmoniously that the Commission has adopted as criteria for determination of a combined merit list inter se all the categories of candidates pertaining to Register 'B' on the basis of marks secured in the papers by the candidates of different categories in which they appeared as per Rules and by working out the percentage of marks obtained in these papers as well as viva voce.
25. Even though, such criteria adopted by the Commission is not a subject matter of challenge in the instant writ petition, still it is held that the discretion exercised by the appropriate/Competent Authority towards determination of merit inter se the candidates would not be interfered with by this Court in the exercise of judicial review unless the same is shown to be CIVIL WRIT PETITION NO.7850 OF 2011 -28- perverse and illegal. It can be safely concluded that the Commission in adopting such criteria and determining inter se merit between various categories including general category and ex-Serviceman category candidates in the light of the provisions of Rule 13-A, Appendix-III of 1976 Rules and Rules 5 and 9 of 1982 Rules has indeed struck a balance and has adopted a harmonious approach. The observations of the Hon'ble Apex Court in the case of Chairman, All India Railway Recruitment Board and another v. K.Shyam Kumar and others, (2010)6 SCC 614 in this regard would be most relevant:
"Proportionality requires the court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision- maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate i.e. well balanced and harmonious, to this extent the court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.
Leyland and Anthony in Textbook on CIVIL WRIT PETITION NO.7850 OF 2011 -29- administrative Law (5th Edn.OUP, 2005) at p.331 has amply put as follows:
"Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in everyday terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision."
The courts have to develop an indefeasible and principled approach to proportionality, till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision-maker."
26. It has also been contended strenuously on behalf of the petitioner that the action of the Commission in adopting a criteria for determination of a combined merit list and which, in turn, has resulted in the passing of the impugned order dated 28.12.2010, Annexure P8, determining the seniority inter se the candidates has no legislative sanction and as such, the impugned order CIVIL WRIT PETITION NO.7850 OF 2011 -30- cannot sustain. Even such contention is without merit. It is by now well settled that under Article 162 of the Constitution of India, the executive power of a State would extend to matters upon which the legislature of the State has competence to legislate. The executive power of the State would not be confined to matters which already stand governed by legislation. Such executive power cannot be circumscribed and it would be open for the Government/appropriate authority to carry on the administration unless such act is violative of any provisions of Constitution or any law. In BM Nagarajan and others v. State of Mysore and others, AIR 1966 SC 1942, it was held by the Hon'ble Supreme Court in the following terms:
"It would be convenient to deal with this argument at this stage. Mr.Nambiar contends that the words "shall be as set forth in the rules of recruitment of such service specially made in that behalf" clearly show that till the rules are made in that behalf no recruitment can be made to any service. We are unable to accept this contention. First it is not obligatory under proviso to Art.309 to make rules of recruitment, etc., before a service can be constituted or a post created or filled. This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in rules. Secondly, the State Government has executive power, in relation to all matters with respect to which the Legislature of the State has power, to make laws. CIVIL WRIT PETITION NO.7850 OF 2011 -31- It follows from this that the State Government will have executive power in respect of List II, Entry 41, State Public Services. It was settled by this Court in Ram Jawaya Kapur v. State of Punjab, 1955-2 SCR 225: (AIR 1955 SC 549), that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws. We see nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Art.162 of the Constitution without a law. It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Art.162 of the Constitution ignore or act contrary to that rule or act."
27. Such proposition has held the field all through and even in a recent judgment of the Hon'ble Supreme Court in Secretary, A.P.D.Jain Pathshala and others v. Shivaji Bhagwat More and others, (2011)13 SCC 99, it was observed in the following terms:
"Article 162 of the Constitution, no doubt, provides that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters upon which the legislature of the State has competence to legislate and are not confined to matters over which legislation has been CIVIL WRIT PETITION NO.7850 OF 2011 -32- already passed. It is also well settled that so long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power under Article 162 cannot be circumscribed; and if there is no enactment covering a particular aspect, the Government could carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf (See Ram Jawaya Kapur v. State of Punjab and Bishambhar Dayal Chandra Mohan v. State of U.P.)".
28. Yet another poser that would require to be answered is as to whether the impugned order dated 28.12.2010 is a reasoned order and as to whether it discloses the basis of determination of the seniority of PCS (Executive Branch) Officers in question. The answer is clearly in the affirmative. A minute perusal of the impugned order would reveal that the judgments of the Hon'ble Supreme Court in Arvinder Singh Bains v. State of Punjab, AIR 2006 SC 2265, as also Ajit Singh Januja and others v. State of Punjab and others, JT 1996(2) SC 727 and Ajit Singh-II and others v. State of Punjab and others, JT 1999(7) SC 153 have been noticed for embarking upon the exercise to determine the seniority of PCS (Executive Branch) Officers. It has also been noticed that the seniority had not been determined earlier in point of time. Still further, in para 16 of the impugned order, it has been recited that the inter se seniority of the PCS (Executive Branch) Officers recruited through various Registers is being fixed CIVIL WRIT PETITION NO.7850 OF 2011 -33- as per merit prepared by the Public Service Commission. The reference to the letter dated 2.12.1992 in para 17 of the impugned order is only with reference to the allocation and not towards determination of a combined merit inter se the candidates. As has been already noticed, the combined merit list pertaining to PCS (Executive Branch) and other Allied Services Examination was prepared and sent first in point of time by the Commission to the State Government vide letter dated 4.7.2001 and which was thereafter revised in terms of letter dated 25.4.2005. Such combined merit list (as revised) forms the basis of the final seniority list issued vide order dated 28.12.2010. The impugned order, Annexure P8, cannot be termed to be bereft of reasoning.
29. Even though at the stage of arguments, the ground of malafide was not pressed, but in the pleadings, a specific ground has been raised that the entire action as regards issuance of a tentative seniority list in March 2008, inviting objections thereto and thereafter issuance of the impugned seniority list vide order dated 28.12.2010 has been done at the behest of respondent No.3 who had been posted as Secretary of the respondent-Punjab Public Service Commission. Even such ground is wholly mis- conceived and untenable. Respondent No.3 was posted as Secretary of the Commission only in May 2007. The matter with regard to the Commission having been called upon to furnish the combined merit list by the State Government stood already initiated in terms of issuance of letters dated 31.5.2000 and 22.3.2001, Annexures R1 and R2 respectively appended with the CIVIL WRIT PETITION NO.7850 OF 2011 -34- reply filed on behalf of respondent No.1. In response thereto, a combined merit list of the 1990 batch had been sent by the Commission to the State Government first in point of time on 4.7.2001 which was thereafter revised on 21.4.2005. The assertion of the petitioner attributing malafides upon respondent No.3 insofar as issuance of the impugned order is concerned, is absolutely baseless in the light of such uncontroverted facts.
30. For the reasons recorded above and in the light of the fact that in the combined merit list of the 1990 batch prepared by the Commission, the names of the private respondents have been reflected higher in order of merit as compared to the petitioner and which, in turn, has formed the basis of finalization of the seniority inter se, this Court does not find any basis that would warrant interference in the impugned order dated 28.12.2010 whereby the seniority of the petitioner as also the private respondents in the cadre of Punjab Civil Services (Executive Branch) relating to the recruitment process of the year 1990 has been finally determined.
31. The petitions are, accordingly, dismissed.
( TEJINDER SINGH DHINDSA )
October 18, 2012 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No