Punjab-Haryana High Court
H.S. Rathi vs State Of Punjab And Others on 21 February, 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CWP No. 12861 of 2011
Date of Decision: February 21, 2012
H.S. Rathi
...Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
MITTAL
Present: Mr. H.C. Arora, Advocate,
for the petitioner.
Mr. J.S. Sidhu, Sr. Addl. AG, Punjab,
for respondent Nos. 1 and 2.
Mr. G.S. Bal, Advocate,
for respondent No. 3.
1. To be referred to the Reporters or not?
2. Whether the judgment should be
reported in the Digest?
M.M. KUMAR, J.
1. The short issue raised in the present Public Interest Litigation filed under Article 226 of the Constitution is whether a person who does not fulfill the age criteria for appointment to a public post under the rules could be appointed and allowed to hold such post even beyond the age of superannuation by giving extensions from time to time. The petitioner has challenged order dated 14.7.2011 (P-5), extending the contract of services of Lt. Col. (Retired) Manmohan Singh-respondent No. 3 from 15.7.2011 to 14.7.2013 on the post of District Sainik Welfare Officer, Jalandhar, CWP No. 12861 of 2011 2 consecutively for the thirteenth time totally in contravention of the provisions of Rule 6 and 8 of the Punjab Defence Services Welfare Officers (Group 'A') Rules, 1986 (for brevity, 'the Rules'). A further direction has been sought directing respondent Nos. 1 and 2 to fill up all the vacant posts of District Sainik Welfare Officers including the post held by respondent No. 3 on regular basis in accordance with the provisions of the Rules.
2. According to the petitioner various posts of District Sainik Welfare Officers are lying vacant in the State of Punjab but to favour certain retired army officers, the respondent authorities instead of sending requisition to the Punjab Public Service Commission for filling up the posts on regular basis, initially appoint some army officers on these posts on contract basis for one year or so and subsequently they are given extension on year to year basis. In that regard the instance of Lt. Col. Manmohan Singh (Retd.)- respondent No. 3 has been cited. He was born on 4.6.1934 and retired from Army on 31.8.1985. On 6.3.1987, he was appointed as District Sainik Welfare Officer at Jalandhar. On 30.6.1992, he retired from the said post but from 1.7.1992 to 14.7.2011 he has been working on contract basis as District Sainik Welfare Officer at Jalandhar. It is alleged that due to his influence in the political circle, during the last about 24 years, he has been given as many as 12 extensions on contract basis. In this regard the petitioner has placed on record the information supplied by the Government of Punjab, Defence Services Welfare Department under the Right to Information Act, 2005 (P-2). The petitioner has also placed on record a letter dated 22.1.1999 written by Mr. Manoranjan Kalia, CWP No. 12861 of 2011 3 the then Health and Family Welfare Minister, Punjab, to the Chief Minister, Punjab, recommending the name of respondent No. 3 for giving him life time extension on the post of Deputy Director, Sainik Welfare, Jalandhar (P-3). It has been highlighted that respondent No. 3 is now about 77 years old, yet he has managed to man the post of District Sainik Welfare Officer, Jalandhar by way of re- employment.
3. In para 7 of the petition, the petitioner has made reference to Rule 7.17 of the Punjab Civil Services Rules, Volume-II, and alleged that a retired employee could be re-employed only with the approval from the Cabinet. However, in the case of respondent No. 3, most of extensions have been granted at the level of the Secretary, Defence Services, Punjab, Chandigarh. On 3.5.2011, the petitioner also served a legal notice highlighting the above factual position. But despite that order dated 14.7.2011 has been passed extending the services of respondent No. 3 for another two years from 15.7.2011 to 14.7.2013 (P-5).
4. In the written statement filed on behalf of respondent Nos. 1 and 2, the broad factual position has not been denied. However, it has been asserted that the officers of the rank of Lt. Colonel/Colonel, who retires from the armed forces are re-employed in the Department of Sainik Welfare as District Sainik Welfare Officers. They generally serve in the Department of Defence service Welfare for 4 to 5 years only and some time up to 10 years before they reach the age of retirement. Thus, the posts of District Sainik Welfare Officer always remains vacant because the incumbents soon after joining the post attains the age of CWP No. 12861 of 2011 4 superannuation. The action of granting extensions to respondent No. 3 has been justified on the ground of shortage of staff and the excellent work and conduct of respondent No. 3. It has also been pointed out that the respondent department processed the case to fill up 8 vacant posts of District Sainik Welfare Officer in the month of July 2009 and only 2 officers of General category were selected. The posts of Scheduled Caste/Backward Class category were de- reserved and the Punjab Public Service Commission again issued an advertisement on 22.9.2010 for filling up 5 vacancies of General Category (R-17). The officers were selected. However, the appointment letters have not been issued because the matter is subjudice before this Court in CWP No. 20570 of 2010. The result of the selected candidates has not been declared in view of the interim order dated 18.10.2010 (R-18). It has been submitted that after finalisation of the said matter, 10 posts of District Sainik Welfare Officer would be filled and 17 officers would be available to the department. It has also been highlighted that respondent No. 3 is only drawing `1/- as salary w.e.f. 15.7.2011 and he has been given extensions in service from time to time in public interest keeping in view his performance and dedication towards the department. The allegation of the petitioner with regard to political patronage of respondent No. 3, has been denied and it is stated that extension of service has been granted to him only after prior approval of the cabinet.
5. A separate written statement by Lt. Col. Manmohan Singh (Retd.)-respondent No. 3 has also been filed. A preliminary objection has been raised by him regarding locus of the petitioner CWP No. 12861 of 2011 5 in filing the instant Public Interest Litigation on the ground that the petitioner is not an aspiring incumbent for being appointed as District Sainik Welfare Officer in the State of Punjab and secondly no Public Interest Litigation is maintainable in service matters. However, respondent No. 3 has not denied the fact of granting him extensions from time to time. He has highlighted his various achievements and the work which he has done for the welfare of ex-servicemen during the last 24 years. He has been awarded State Award by the Punjab Government twice on 15.8.1991 and 15.8.2004 (R-3/2 & R-3/3). He was also nominated for the title of 'Man of the Year 2002 by the American Biographical Institute Inc. (R-3/4). It has been pointed out by respondent No. 3 that due to innovative methods of working adopted by him, the office of the Defence Services Welfare, Jalandhar, has been declared as a Model Office by the Government of India, Ministry of Defence and it has been adjudged as the best office out of 378 such offices throughout India. He has done his Post-graduation in 7 subjects i.e. M.Sc. (Physics), M.Sc. (Defence Studies), M.As in English, Economics, Political Science and History. He is also a Postgraduate from Defence Service Staff College, Willington (Tamil Nadu). Reference has also been made to various other achievements as well as good Annual Confidential Reports recorded by various Deputy Commissioners posted at Jalandhar from time to time. It has been further submitted that he is performing his duties voluntarily in the larger interest of ex-servicemen, their words and dependents and he has never himself asked for such extensions, rather it has been offered to him on the basis of his performance by the successive CWP No. 12861 of 2011 6 Governments.
6. Learned counsel for the parties have been heard. It would be apposite to first read the provisions of Rule 6, 7, 8 and 17 of the Rules (P-1), which are as under:
"6. Age No person shall be recruited to the Service by Age:-
direct appointment if he is less than twenty five years or more than fifty five years of age on the first January than preceding the date fixed the receipt of applications or unless he is within such range of minimum and maximum age as may be specifically fixed by Government from time to time.
Provided that the condition of upper age limit may be relaxed up to fifty six years in the case of those Ex- Indian Commissioned Officers, who are recipients of gallantry awards of Vir Chakra series that is Param Vir Chakra, Maha Vir Chakra or Vir Chakra.
7. authority:-
Appointing authority: All appointments to the Service shall be made by the Government.
8. Method of appointment and Qualifications Qualifications:-
lifications (1) Appointment to the Service shall be made:-
(i) by direct appointment or
(ii) by transfer of an officer already in the
Service of the Government of India or of a State Government.
(2) Whenever any vacancy arises, the appointing authority shall determine the method by which the same is to be filled in.CWP No. 12861 of 2011 7
(3) No person shall be appointed to the Service unless he,:-
(a) is an Ex-Indian Commissioned Officer of the rank of Colonel or Lieutenant Colonel or equivalent rank of the Indian Navy or Indian Air Force.
Provided that the Government may in exceptional circumstances and for reasons to be recorded in writing, relax this condition.
Provided further that in case no suitable person as specified in this clause is available, an Ex-emergency Commissioned Officer of any of the ranks mentioned therein, shall be eligible for appointment to the Services.
(b) Produces release order and Pension Payment Order issued by the concerned authorities, and
(c) is a Matriculate of a recognized university or possesses equivalent qualifications.
Explanation:-
Explanation:- Indian Army, Air Force or Navy Special Certificate of Education will be treated as equivalent to Matriculation Certificate.
(4) In the case of appointment to the post of Director, Sainik Welfare, the Government shall make appointment for this post on tenure basis, on the recommendation of the Selection Committee to be constituted and notified by the Government which will be chaired by the Chief Secretary to Government of Punjab and shall have the Director General, Resettlement, Government of India, Ministry of Defence or an officer CWP No. 12861 of 2011 8 nominated by him as one of the Members of the Selection Committee.
(5) The Selection Committee shall consider the names of those officers included in the panel drawn in consultation with the Director General, Resettlement, who shall be retired Brigadiers or of equivalent ranks of Navy and Air force for appointment to the post of Director.
(6) The Director Sainik Welfare shall be appointed for a term of two years which will be extended for a period of two years at a time subject to the condition that the officer has a satisfactory record of Service.
Provided that an officer shall not be granted extension, if he attains the age of sixty years or if he avails extension for two terms, whichever is earlier.
(7) The Deputy Director or District Sainik Welfare Officer shall be appointed for a term of ten years or till he earlier."
attains the age of fifty eight years, whichever is earlier.
relax Where "17. Power to relax:- the Government is of opinion that it is necessary or expedient so to do it may by order for reasons to be recorded in writing relax any of the provisions of these rules with respect to any class or category of persons.
Provided that the provisions relating to qualifications and experience, unless it is otherwise provided in these rules, shall not be relaxed." (emphasis CWP No. 12861 of 2011 9 added)
7. It is undisputed that the Rules have been framed under proviso to Article 309 of the Constitution for regulating the recruitment and conditions of service of the persons appointed to 'the Punjab Defence Services Welfare (Group A). Rule 3 prescribes the number and character of posts as specified in Appendix 'A' appended to the Rules, which also includes the post of District Sainik Welfare Officer. In Appendix 'A' there are 5 temporary and 12 permanent posts of District Sainik Welfare Officer carrying the pay scale of `7880-11600 (unrevised), which has been revised to `10300-34800 plus grade pay `5400. There is a general Rule 6 dealing with the minimum age of recruitment for entry into the Punjab Defence Services Welfare (Group A). It has been provided that no person could be recruited to the Service by direct appointment if he is less than twenty five years or more than fifty five years of age on the first January than preceding the date fixed for receipt of applications or unless he is within such range of minimum and maximum age as may be specifically fixed by Government from time to time. The proviso to Rule 6, however, extends the power of relaxation in the condition of upper age limit upto fifty six years in the case of those ex-Indian Commissioned Officers who are recipients of gallantry awards of Vir Chakra series i.e. Param Vir Chakra, Maha Vir Chakra or Vir Chakra. As per Rule 8 of the Rules two methods of appointment to the Service have been provide viz. (i) by direct appointment; or (ii) by transfer of an officer already in the service of the Government of India or of a State Government. Sub-rule (3) of Rule 8 provides that only an Ex-Indian CWP No. 12861 of 2011 10 Commissioned Officer of the rank of Colonel or Lieutenant Colonel or equivalent rank of the Indian Navy or Indian Air Force could be appointed to the Service. However, the first unnumbered proviso to sub-rule (3) of Rule 8 carves out an exception and empowers the Government to relax this condition in exceptional circumstances by recording reasons in writing. The second proviso to this sub-rule further stipulates that in case of non-availability of a suitable person as specified in sub-clause (3), an Ex-Emergency Commissioner Officer of any of the ranks mentioned therein, would be eligible for appointment to the Service. However, there is a specific provision made for appointment to the post of Deputy Director or District Sainik Welfare Officer under Rule 8(7). In the present case we are concerned with appointment to the post of District Sainik Welfare Officer, which is covered by the aforesaid rule. Sub-rule (7) of Rule 8 of the Rules determines the term of the posts of Deputy Director or District Sainik Welfare Officer as ten years or till the incumbent attains the age of fifty-eight years, whichever is earlier.
8. Rule 17 of the Rules clothed the Government with the power to relax any of the provisions of the Rules with respect to any class or category of persons if it is of the opinion that it is necessary or expedient so to do provided that the provisions relating to qualifications and experience, unless it is otherwise provided in the Rules would not be relaxed. The power of relaxation provided by Rule 17 would not come to the rescue of respondent No. 3 because according to the language of the rule, the power of relaxation relating to qualification and experience cannot be relaxed unless CWP No. 12861 of 2011 11 the relevant rule itself provides. There is no such provision made in sub-rule (7) of Rule 8 and, therefore, it cannot by deeming fiction be construed that the appointment of respondent No. 3 could be extended to the age of 78 years.
9. The aforesaid analysis of the Rules would reveal that unnecessary extensions have been given to respondent No. 3. The principle of reasonableness would guide any prudent person to grant extension within the parameters of the Rules. In sub-rule (7) of Rule 8 of the Rules, no extension is contemplated and the post of District Sainik Welfare Officer is a tenure post for 10 years or till the officer attains the age of 58 years whichever is earlier. There is flagrant and patent violation of sub-rule (7) of Rule 8 in the present case. Respondent No. 3 is born in 1934 and cannot continue to function as District Sainik Welfare Officer for which age limit prescribed is 58 years.
10. There are various other reasons to reject the defence put forward by respondent Nos. 1 and 2. In the reply to the application filed under the Right to Information Act, 2005 by an office bearer of the RTI Activists Federation, a misleading response was given vide letter dated 12.5.2010 (P-2). In para (b) of the reply the Defence Services Welfare Department has misled the applicant Subedar Major (Retd.) Tarsem Lal by stating that there are no rules/instructions for fixing the lower or upper age limit for appointment of District Sainik Welfare Officer, which is patently against record as the Rules of 1986 framed under proviso to Article 309 of the Constitution are in operation (P-1).
11. The further defence of respondent Nos. 1 and 2 that on CWP No. 12861 of 2011 12 account of shortage of staff the extensions from time to time have been given to respondent No. 3 is also unacceptable. It has come on record that respondent No. 3 was appointed as District Sainik Welfare Officer on 6.3.1987 (R-1). On 30.6.1992, he superannuated from the Punjab Government service on attaining the age of 58 years (R-2). However, on 27.7.1992 an order was passed giving re- employment to respondent No. 3 on the post of District Sainik Welfare Officer w.e.f. 1.7.1992 (R-3), whereas he was not qualified to hold the post of District Sainik Welfare Officer because he superannuated from the Punjab Government service on 30.6.1992. His tenure could have been only either up to 58 years or for a period of 10 years whichever is earlier. His re-employment from 1992 till date speaks volumes about the misuse of power by the Secretary to Government of Punjab, Department of Defence Services Welfare (R-3 to R-15). There is nothing in the orders (R-3 to R-15) which may show that any effort has been made by the Department of Defence Services Welfare to make regular recruitment on the post as per the Rules. The only advertisement, on which reliance has been placed, is dated 22.9.2010 (R-17) and five vacancies from General Category are sought to be filled up in the cadre of District Sainik Welfare Officer. Therefore, the defence taken by respondent Nos. 1 and 2 is false. The department has shown venton disregard to the Rules and deserved to be castigated. Even the defence taken is false for the reasons best known to the respondents. The 'Rule of Law', which is the basic structure of the Constitution, has been substituted by 'Rule of Convenience and Favouritism'. Another line of defence pleaded by CWP No. 12861 of 2011 13 respondent Nos. 1 and 2 is that the aforesaid posts would become available after this Court decides C.W.P. No. 20570 of 2010. Even that writ petition has been decided on 9.1.2012. The aforesaid defence does not have any important bearing on the issue because the respondents have only once attempted to make regular recruitment by issuing advertisement through Punjab Public Service Commission on 22.9.2010 (R-17). Accordingly, we hold that the appointment of respondent No.3 is absolutely illegal and is liable to be set aside.
12. As a sequel to the above discussion, this writ petition is allowed with cost. The appointment of respondent No. 3 is hereby set aside. Respondent Nos. 1 and 2 are directed to fill up the post of District Sainik Welfare Officer, Jalandhar and at other places by appointing regularly recruited persons in pursuance to advertisement dated 22.9.2010 (R-17). The cost is assessed as `50,000/-, which shall be initially paid by respondent No. 1 to the Member Secretary, Punjab Legal Services Authority, Chandigarh. The Chief Secretary, Punjab, is directed to hold an inquiry by appointing a competent officer to find out why there was venton disregard to the Rules and fix the responsibility of the defaulting officer(s). The recovery of cost shall then be effected from the defaulting officer(s).
(M.M. KUMAR)
JUDGE
(AJAY KUMAR MITTAL)
February 21,
21, 2012 JUDGE
PKapoor