Punjab-Haryana High Court
Anita Rani vs Haryana Staff Selection Commission And ... on 5 December, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.8726 of 2007 (O&M)
1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.8726 of 2007 (O&M)
Date of decision: 05.12.2013
Anita Rani
..... Petitioner(s)
Versus
Haryana Staff Selection Commission and another
..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.D.S.Patwalia, Advocate,
for the petitioner.
Mr.Harish Rathee, Sr. DAG, Haryana
*****
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 belongs to the Lohar caste of the Hindu community which has been notified as a Backward Class by Government of Haryana for purposes of reservation in services under the State. She is a Graduate in Arts and an M.A. in Political Science, both earned from the Kurukshetra University, Kurukshetra. She has qualified the National Trade Certificate in the trade of Stenography (English) on successful completion of the course from the Industrial Training Institute, Yamunanagar, Haryana, the duration of which was from August, 1990 to July, 1991. She served at Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 2 the Haryana State Electronics Development Corporation Limited as a Steno- Typist from 4.4.1995 to 27.1.1997. Thereafter, she worked for a private company from 1.3.1997 to 30.4.2001 as a Stenographer.
2. She is a weight lifter and participated in the 16th Annual Weight Lifting Championship, Mukand Lal College, Yamunanagar held on 11.10.1986 at State level. In this competition, she stood first in the championship.
3. On 8.2.2006, the respondent Haryana Staff Selection Commission issued an advertisement No.2-2006 inviting applications for filling up various posts available for direct recruitment in services under the State of Haryana. The petitioner applied for one of the posts, i.e., Office Secretaryship (English) under Category No.65 OS. One of several posts in this category was reserved for Outstanding Sports Person (BC-A) category. She applied in this category. She was called for interview on 13.2.2007 for appearance before the Committee-F of the Commission. She appeared in the interview. The result of the selection was declared and published in the Press on 18.3.2007. The result showed the single post ear marked for OSP (BC-A) to be vacant on account of non-availability of an eligible candidate.
4. Aggrieved, the petitioner approached the Commission on 20.3.2007 through a written representation. She followed it up by reminders/representations including the one dated 23.4.2007.
5. Her representation was answered vide letter issued by the Director, Sports and Youth Programme Department, Haryana addressed to the Secretary, Haryana Staff Selection Commission, Panchkula advising it through a clarification with respect to the gradation certificate issued to the Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 3 petitioner. The letter was in response to the Commission's memo dated 23.4.2007 on the subject matter. The Director Sports wrote memo dated 25.4.2007 (P-10) as follows : -
"The certificate submitted by Kumari Anita Dhiman of 16th Annual Weighlifting Championship dated 11.10.1986 is not covered under the instructions relating to the Sports Gradation issued by the Chief Secretary, Haryana Government. If Haryana Staff Selection Commission wishes, then it can consider the said sports certificate at their own level."
6. The weights were left by the Head of the Department of Sports, Haryana for the Commission to lift at their own level. The Sports certificate relied upon by the petitioner was issued by Haryana Weightlifting Association (Registered) which is stated to be affiliated to the Indian Weightlifting Federation, North India Weightlifting Association and the Haryana Olympic Association. There is no dispute that weightlifting is a recognized sport falling at Serial No.10 under the head "Olympic Games", meaning thereby, recognized as a Sport for the Olympics in the policy circular dated 30.11.1993 issued by the State Government which deals with reservation of seats for outstanding players in technical/ medical institutions and in State Government services. Para. 3-C of these instructions deal with State Level Competitions and prescribes that such State Championships as are recognized under the circular and which are recognized by the State Association of the game concerned, affiliated to the Haryana Olympic Association or National Federation of the concerned Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 4 game, which in turn should have been affiliated to the Indian Olympic Association or International Federation of the concerned game would fall in the policy circular. Para. 5 of the circular deals with eligibility for grading sports certificates. It prescribes that an applicant should have represented the Haryana State at the national games, Inter State Championships, Federation Cups, Inter Zonal Competitions and other National competitions for grading A-I, A-II and B-I and B-II certificates. Such certificates are issuable to the junior and senior level competitions to be considered for Sports Gradations. Thus junior level competition under Group 14 is excluded from reckoning.
7. The petitioner asserts that she falls within the eligibility conditions to compete in the OSP (BC-A) category. Circular dated 30.11.1993 was not a part of the judicial file and therefore this Court by an interim order dated 28.11.2013 called upon the learned State Counsel to produce inter alia the instructions which had been mentioned in the written statement and the advice/clarification issued by the Director Sports, Haryana but had not been produced on record. This is how Mr. Rathee has produced the instructions dated 30.11.1993 which were taken on record as 'Mark A' vide separate order and now form part of the judicial file.
8. The case of the petitioner was considered by the Commission in the context of representations dated 26.3.2007 and 3.5.2007 and she was informed that as per clarification received from the Director, Sports Department, Haryana vide letter dated 25.4.2007, the 16th Annual Weightlifting Championship certificate issued to the petitioner on 11.10.1986 is not covered under the instructions issued by the Chief Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 5 Secretary to Government of Haryana relating to issuance of Sports Gradation Certificates. Hence, the petitioner could not be considered in the Sports category for the post applied for. This impugned memo is dated 14.5.2007 which has brought the petitioner to Court challenging its correctness.
9. Mr. Patwalia submits that the obdurate insistence on a Sports Gradation Certificate under the instructions is misplaced and the petitioner has been denied appointment arbitrarily in the reserved quota. Government in its letter dated 25.4.2007 had left it to the Commission if it wishes to consider the Sports Certificate as good at her own level, on the strength of which certificate the petitioner had applied for the single advertised post in the category of OSP (BC-A). The Commission did not take a decision at its own level as advised by the Government but blindly followed the diktat of the Director Sports, Haryana in the first part of his communication that the 16th Annual Weightlifting Championship held on 11.10.1986 is not covered under the instructions relating to Sports Gradation and therefore the petitioner has no case.
10. Learned Counsel submits on the strength of the terms and conditions of the advertisement that a Sports Gradation Certificate was not demanded when the applications were called through the public advertisement. He hammers this point by taking this Court to the terms and conditions of the advertisement and particularly the two following material conditions; one relating to reservation of posts and the other relating to documents to be attached with the application form. They are best reproduced verbatim to understand their implications and impact on this Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 6 case in the context of the relief prayed for and sought : -
Reservation of posts :
Reservation will be as per Haryana Govt. instructions. The dependent sons of ESM who fulfill all conditions of qualifications, age etc. prescribed for posts will be considered on merit for the posts reserved for ESM to the extent of non- availability of suitable ESM candidates. The children and the grand-children of Freedom Fighters (DFF) would be considered to the extent mentioned in Haryana Govt. Letter No.22/20/83- 3GSIII, dated 26.7.1984, if the quota reserved for Ex-Servicemen, remains unfilled due to non- availability of suitable Ex-servicemen or their dependents.
ESM/DESM candidates of Haryana claiming benefit will have to attach with their application fresh Eligibility Certificate from the concerned Zila Sainik Board. Mere dependent certificate will not be entertained. ESM candidates should attach attested photo copy of Identity Card issued by concerned Zila Sainik Board."
11. Further still, Mr. Patwalia points out to Note (i) under the following head : -
NONE OF THE PERSON BELOW SHALL FALL WITHIN THE DEFINITION OF WORD DEPENDENT OF EX-SERVICEMEN IN TERMS OF HARYANA GOVT. LETTER NO.12/37/79- GSII, DATED 21.11.1980 : -
i. to iv. XXXX Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 7 Note (i).
The benefit of reservation will be given only to those SC, BC and ESM and outstanding sportsperson candidates who are domicile of Haryana State. The SC, BC candidates are required to submit SC/BC Certificate duly issued by the competent authority.
ii. & iii. X X X X"
12. On the strength of the terms of the advertisement, it is argued that though there is a declaration that the reservation will be as per Haryana Government instructions but that part falls in the column of 'Reservation of Posts'. While dealing with reservation for the children and grand-children of Freedom Fighters (DFF), the Commission had specially pointed out to Haryana Government letter dated 6.11.1994 in the advertisement and similarly while dealing with Ex-Servicemen and Dependents of Ex-
Servicemen, reference was again specifically made to Haryana Government letter dated 21.11.1980 in which Note 1 above falls which grants benefit of reservation to SCs, BCs and ESM and Outstanding Sports Persons who are domicile of Haryana State. In Note 1, all that is demanded are Caste Certificates of SC and BC duly issued by the competent authority. The Sports Gradation Certificate for an applicant Outstanding Sports Person is not mentioned. The Note is silent on this aspect. More specifically, prospective candidates have been advised to submit certain documents to be attached with their application forms. All that was required of the petitioner to qualify eligibility criteria, was to possess a certificate issued by the competent authority. In support of her claim as an Outstanding Sports Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 8 Person, points to Note (ii) found under the head 'Documents to be attached', wherein a Sports Gradation Certificate is not required to be furnished from a person claiming to be an Outstanding Sports Person. The claim under this category can be established simply on production of a certificate which the petitioner did being the first position holder in the 16th Annual Weightlifting Championship, Haryana.
13. To strengthen his argument, Mr. Patwalia has drawn pointed attention of this Court to the interview call letter issued by the Commission to the petitioner (P-8) dated 1.2.2007 in which the following demands were made in writing : -
"You are directed to appear for interview at 9.00 a.m. on 13.02.2007 before Committee-F of the Haryana Staff Selection Commission at Commission Office, Bays No.67-70, Sector-2, Panchkula along with all your requisite documents, in original, particularly the following documents : -
1. Marks Sheets, Diploma/Degrees from Matriculation onwards.
2. Proof of Hindi upto Matric standard.
3. Proof of Date of Birth.
4. Proof of fee deposited by Treasury Challan/IPO in original/counterfoil.
5. SC/BC candidate will being with him domicile of Haryana certificate issued by the concerned SDO(Civil/City Magistrate).
6. Experience certificate from an organisation of repute or in a training institute with salary is required."
14. The petitioner was not called upon to produce a Sports Gradation Certificate by this communication while the Commission knew Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 9 that she had applied in the category of Outstanding Sports Person (BC-A). She did produce her BC caste certificate issued by the competent authority certifying that the petitioner was not only of Backward Class but was a domicile of Haryana State as well. Her status as a backward class candidate has not been disputed before me. In these circumstances, having failed to secure consideration since she was turned back at the interview for the post of Office Secretaryship (English) in the Industrial Training Institute that the petitioner wrote a letter to the Secretary of the Commission dated 20.3.2007 assuring him that a Sports Gradation Certificate will be submitted to the office within 10 days. However, her request for consideration to be tested on the merits of selection was turned down on the specious plea that her case was not covered by the instructions issued by the Chief Secretary, Government of Haryana relating to issuance of Sports Gradation Certificate. That is how the final impugned order dated 26.3.2007 was passed six days after her request letter (P-9) was submitted.
15. The respondent Commission have defended the writ petition by filing written statement in defence of their stand. The Sports Department has filed a short reply stating that no relief is sought against them and as far as they are concerned, they had issued a clarification through letter dated 25.4.2007 (supra) to the respondent Commission. Nothing hinges on this short reply. However, the Commission in its written statement has taken stand that the petitioner applied for the post under the category of OSP without possessing the Sports Gradation Certificate on the cut off date, i.e., 7.5.2006. The petitioner did not produce a Sports Gradation Certificate at the time of interview and prior to declaration of the result. It is only after Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 10 declaration of the result that the petitioner came to know of the vacant post which remains unfilled and thereafter made representations to the Commission on 20.3.2007. The Commission has depended on the clarification issued by the State Government that the 16th Annual Weightlifting Championship is not covered under the instructions and therefore the petitioner has no case. It is further stated that the petitioner obtained 39.70 marks in BCA category as against 45.65 marks secured by the last selected candidate in the reserved category and therefore she did not find place in the reserved category of Bckward Class-A. It obviously means that her claim was considered under vertical reservation but not in its horizontal foundation. To the extent that the petitioner's claim was considered in BC-A category independently following decision of the Commission not to treat her as OSP (BC-A) candidate cannot be legally faulted as that was her right anyway.
16. The question, however, is whether the petitioner was wrongly ignored from consideration under the Outstanding Sports Person (BC-A) category. There can be no dispute that the advertisement does not mention any instructions insofar as OSPs are concerned much less the instructions dated 30.11.1993 which were produced on the directions of this court. They are not even adverted to in the impugned clarification issued by the State Government through Director Sports, Haryana nor in the impugned order declining consideration of candidature. There is, however, a general declaration that Haryana Government instructions would apply but what they are or mean has not been made known to prospective applicants who might respond reading the terms and conditions of the advertisement. It is Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 11 the submission on behalf of the petitioner that wherever the Commission wished to speak with reference to executive instructions issued by the Government, it spoke clearly when it referred to the instructions dated 26.7.1984 and Haryana Government letter dated 21.11.1980 with respect to rights of Freedom Fighters and ESM category candidates. It could have been clearly laid down in the advertisement in Note 2 under the head "documents to be attached with the application form" or elsewhere in the public notice inviting applications that an applicant claiming reservation under the Outstanding Sports Person category would have to produce a Sports Gradation Certificate and not just a certificate issued by the competent authority to be considered eligible. The petitioner would then have acted accordingly and armed herself with the desired testimonial.
17. On the other hand, Mr.Harish Rathee, learned Senior DAG, Haryana appearing for the State points out to the interview call letter (P-8) dated 1.2.2007 and submits from its reading that the petitioner was duty bound to bring along with her at the interview all requisite documents in original, some of which were mentioned in the letter from Serial No.1 to 6 and therefore the petitioner being a sports-person claiming to be an OSP ought to have imagined for herself that a Sports Gradation Certificate was one of the requisite documents she would have to bring along to demonstrate her eligibility. Mr. Rathee may not be incorrect in his submission that the 6 documents mentioned in the interview call letter dated 1.2.2007 were not exhaustive of the testimonials in view of the word 'particularly' used following the words 'requisite documents'. But it appears to this Court a bit too farfetched to presume that a person applying under Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 12 the advertisement and on reading its terms and conditions would come armed with a Sports Gradation Certificate issued by the Competent Authority when it was not asked for or sought in clear and emphatic terms. All that was asked for was a 'certificate' from the competent authority as contra-distinguished from the Sports Gradation Certificate issued by the competent authority under the policy circular issued by the Chief Secretary to Government, Haryana on which the claim for consideration was based but rejected for want of a thing not mentioned. It is well settled that the terms of an advertisement seeking applications for public appointments is the magna carta of the recruitment process and cannot be departed from by changing the rules and perceptions of the game midway or after the game is played out. The terms are sacrosanct and are to be respected and adhered to to maintain fairness in action. If a sports gradation certificate was condition precedent the petitioner may have acted accordingly. She may have applied with such a gradation certificate knowing the condition beforehand, or if she had none, not to compete in the category applied for at all. There is an element of promissory estoppel also in her favour and against the respondents. There is no clear rule or statute available to entertain an argument that there is no estoppel against the statute or the law.
18. Mr.Rathee then submits with vehemence that the instructions dated 30.11.1993 have to read into the advertisement to achieve the purpose sought of finding a suitable outstanding sports person in its true sense duly authenticated by the State functionaries based upon outstanding performance in sports. He next would argue that not much value can be attached to the certificate issued by the Haryana Weightlifting Association, Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 13 Yamunanagar which is not a juristic person and appears to be a society governed by the provisions of the Societies Registration Act, 1960 etc. but when asked whether the Haryana Weightlifting Association (Registered) is affiliated to the Indian Weightlifting Federation, Northern Weightlifting Association and the Haryana Olympic Association, he could put forth no concrete defence in aid of the main argument and therefore it cannot be said that the Sports Certificate is of no value. It is also not the ground of rejection in the impugned order that the sports certificate relied upon is disputed or that it has been issued by an authority which is not affiliated in the manner provided in the executive instructions dated 30.11.1993 itself where Government have considered and granted the benefit. Authenticity to State level competitions which are organized by a State Association with affiliation to the Haryana Olympic Association or National Federation of the game concerned, which in turn should be affiliated to the Indian Olympic Association or International Federation of the concerned game are recognized by the instructions itself. For this, reference may be had to para. 3-C of the 1993 instructions itself. Therefore, if the Haryana Weightlifting Association is affiliated to the Haryana Olympic Association which is affiliated to the Indian Olympic Association, then value has to be attached to the certificate produced. The petitioner stood first in the 16th Haryana Weightlifting Championship held in Mukand Lal College, Yamunanagar on 16.6.1986 and she participated in the 16th Annual Weightlifting Competition on the basis of trials of the Yamunanagar unit. It can, therefore, be said that the petitioner had participated not just in 16th Haryana Weightlifting Championship but in the 16th Annual Weightlifting Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 14 Competition.
19. It is well settled that if the reason assigned in an administrative order which has adverse consequence on a person is found to be erroneous and not germane to action taken, then the administrative order cannot survive on judicial review and must fall to the ground and be declared bad as founded on wrong reason. The only reason given to reject the claim of the petitioner was based on blindly following the instructions of the Chief Secretary to Government of Haryana that the 16th Annual Weightlifting Championship was not covered by the policy. The Sports Policy-1993 acknowledges representation as an acceptable eligibility condition in terms of para. 5 of the policy instructions. Securing positions in sporting events is a recognized method of granting grading certificates duly adopted in the circular and participation in championships and competitions as mentioned in the policy also entitle Gradation Certificates which may at best may be of lesser value but not valueless.
20. According to Mr. Patwalia, this is an alternative argument, the principal being that a Sports Gradation Certificate was not required at all within the framework of the advertisement and a certificate alone would suffice to qualify an applicant as one who is an outstanding sports-person in absence of precise definition of the term. The petitioner submits that if a method is prescribed in the rule or in the advertisement, then that method alone is to be followed. In supports of this proposition, Mr. Patwalia relies on a decision of the Supreme Court in B.Ramakichenin @ Balagandhi v. Union of India and others, 2008 (1) SCC 362. This was a case dealing with a method of shortlisting adopted to reduce he number to be called for Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 15 final selection. The Supreme Court took the view that if the method of shortlisting has not been prescribed by the UPSC or by any statutory rule, none can be imposed. In this case, the method of shortlisting had been laid down in the advertisement published by the UPSC and an effort was made to change the method by one such that was not prescribed and therefore the rule in the advertisement could not be varied and had to be adhered to.
21. Learned counsel would next rely on Parmod K. Pankaj v. State of Bihar and others; 2004 (1) SCT 83. In this case, the Supreme Court considered the binding effect of the terms and conditions of the advertisement duly notified to the public calling applications constituting a representation to the public to respond accordingly and the recruiting agency was bound to adhere to the representation made to the public. Thus the reason for ousting the claim of the petitioner from consideration is not part of the terms and conditions of the advertisement noticed above. The respondent Commission itself appeared to be in a quandary in search of an answer when it sought advice from the Government with respect to the certificate relied upon. This suggests that it was not too sure of itself. Because it was not too sure of itself, it failed to apply its own mind as it was easier to depend on the advise tendered by the State Government and fell conveniently on the first reasoned ouster clause spoken of by the Director Sports in his impugned letter that the Sports Certificate possessed by the petitioner did not meet the requirements of the instructions of the Chief Secretary to the Government of Haryana, 1993. Though those instructions are not mentioned in the letter but I take it as gospel truth that it refers to the instructions dated 30.11.1993 now produced by Mr.Rathee and Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 16 none other.
22. After hearing learned counsel on both sides at considerable length and twice over, I am unable to persuade myself to support the impugned orders for the reasons assigned in them. The petitioner had applied for the post of Office Secretaryship (English) in Industrial Training Institute which is in the stenography line of employment and therefore the claim of the petitioner cannot be thrown out on a facile assumption that she does not qualify as an Outstanding Sports Person or to succumb to the rhetoric of personal notions of what an OSP should be. All that the petitioner was required to produce was a certificate from the competent authority to demonstrate that she was sports person which proof she submitted but was not considered valid. If there is something missing in the advertisement, none can be supplied or inserted therein except by amending the advertisement itself which this Court is not called upon to do by process of interpretation. The reason for rejecting the case of the petitioner is in the main declared untenable and therefore bad.
23. Consequently, this writ petition is allowed. The impugned part of the letter dated 25.4.2007 (P-10) cannot be imposed on the petitioner to her detriment. The impugned order dated 14.5.2007 (P-12) arising out of the letter of advice dated 25.4.2007 cannot thus survive and is quashed and the respondents are directed to consider the case of the petitioner for appointment to the post applied for on her merit determined in the selection by keeping in mind that the post is still admittedly lying vacant to be filled preferentially from the same recruitment process.
24. Let this be done within 45 days from the date of receipt of a Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document CWP No.8726 of 2007 (O&M) 17 certified copy of this order. If the petitioner is otherwise found fit for appointment on merit in the selection in the category applied for, she may be offered appointment against the post of Office Secretaryship (English) under OSP (BC-A) category which remains vacant and unconsummated. With this the writ petition stands allowed. However, there will be no order as to costs.
(RAJIV NARAIN RAINA) JUDGE December 05, 2013 Paritosh Kumar Kumar Paritosh 2013.12.23 14:05 I attest to the accuracy and integrity of this document