Punjab-Haryana High Court
Vijay Kumar Bansal vs State Of Haryana And Others on 13 December, 2013
Bench: Sanjay Kishan Kaul, Augustine George Masih
Civil Writ Petition No.5084 of 2013 (O&M) :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Reserved on: September 10, 2013
Date of Decision: December 13,2013
Vijay Kumar Bansal
...Petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH, JUDGE
Present: Mr. Rajiv Atma Ram, Sr.Advocate with
Mr. Inder Pal Goyat, Advocate,
for the petitioner.
Mr. H.S.Hooda, Advocate General, Haryana with
Mr. D.S.Nalwa, Addl.A.G., Haryana &
Mr. Vinod S. Bhardwaj, Addl.A.G., Haryana,
for respondent Nos.1,2,4 and 5.
Mr. H.N.Mehtani, Advocate,
for Haryana Public Service Commission-respondent No.3.
Mr. Girish Agnihotri, Sr.Advocate with
Mr. Arvind Seth, Advocate,
for respondent Nos.6 to 10.
*****
AUGUSTINE GEORGE MASIH, JUDGE This Public Interest Litigation (hereinafter referred to as "PIL") has been preferred under Article 226 of the Constitution of India by an Advocate, who asserts it to be one devoid of involvement of any personal interest of his therein while challenging the Haryana Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 2 }:
School Teachers Selection Board Act, 2011 (for short, "2011 Act"), for declaring it to be ultra-vires to the Constitution, being contrary to Chapter II, Part XIV of the Constitution of India and also the appointment of respondent No.6, Nand Lal Punia, as Chairman and respondent Nos.7 to 10 as Members of the Haryana School Teachers Selection Board (for short, "the Board"), being illegal and arbitrary pursuant to tailor-made qualifications in the impugned 2011 Act.
It is the contention of the learned Senior counsel for the petitioner that the petitioner, who is an Advocate, has earlier filed various PIL petitions in this Court, which have been entertained on various issues and remedial action has been taken by the respondents on receipt of notices. He asserts that the present writ petition has been filed with a bonafide intention to protect and preserve the basic constitutional structure and scheme as under
Article 320 of the Constitution of India, a duty has been cast upon the Public Service Commission to conduct examinations for appointment to the services and to assist the States in framing and operating schemes for any service. A mandate has been laid upon the State to consult the Commission on all matters relating to method of recruitment to the Civil Services and civil posts. However, through a process of enacting the 2011 Act, the Haryana Public Service Commission (hereinafter called "the HPSC") has been made ineffective and instead appointments have been made to the Board by respondent No.5, the Chief Minister of Haryana State by Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 3 }:
appointing persons of his choice as its Chairman and Members, casting doubt upon the constitution of Board itself, which has been given the duty and responsibility of selection of teachers for appointment to the Government Schools and teacher educators, educational supervisors for School Education Department in the State. All posts of teachers, except those of the ministerial staff i.e. Group `A', `B' and `C' have been put under the powers of the Board for making recommendations for their appointments.
While referring to the history of the HPSC, it has been contended that it came into existence on 1.11.1966 on the formation of the State. In the year 1973, appointments to all Class III and Class IV posts were taken out of the purview of the HPSC. However, selection to all Class I and Class II posts continued to be made by the HPSC. The powers and functions of the Commission have been diluted as its duties and responsibilities have been curtailed to the extent that the requisition for posts, which were sent to the HPSC for recruitment to various posts, had been withdrawn on various occasions. However, in the year 2005, blanket instructions dated 7.3.2005 were issued for withdrawing all the requisitions sent for filling up various categories of posts without assigning any reason whatsoever. On 9.3.2005, requisition for filling up 57 posts of the Haryana Civil Services (Executive Branch) and Allied Services for the year 2004 were withdrawn. By this process, more than 95% of the posts under the State have been taken out of the purview of the Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 4 }:
HPSC and less than 5% remain with it. Many posts of Members of HPSC are lying vacant and only 2 posts are occupied i.e. one by Chairman and another by a Member. Since 9.8.2008, the working strength of the HPSC, including its Chairman, never exceeded 4, reflecting that it has been rendered totally defunct. Earlier, the appointments taken out of the purview of the HPSC i.e. Class `C' and `D' posts, were being filled up through the Departmental Selection Committees or the Haryana Subordinate Service Selection Board, which shows that its functions are being delegated and performed by the extra constitutional bodies created by the State. The latest endevour of the State Government has been the creation of yet another extra constitutional agency i.e. the Board for recruitment of the posts of teachers, educators, educational supervisors for School Education Department, which includes Group `A', `B' and `C' posts through the impugned 2011 Act.
The counsel submits that the 2011 Act has been so formulated to give undue benefit to respondent Nos.6 to 10 and in particular respondent No.6, who has been appointed as a Chairman of the Board. The counsel emphasizes that this is so as the retirement age fixed for the Chairman is 72 years with a view to accommodate him. For saying so, he elaborates that earlier respondent No.6 was the Chairman of the Haryana Staff Selection Commission (for short, "H.S.S.C"), when he was appointed on 23.10.2005 with the age of retirement as 65 years. Prior to his Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 5 }:
retirement in September 2007, the upper age limit was increased to 68 years vide notification dated 21.6.2007. He retired in September 2010 on attaining the said age. As per the counsel, he is a close relative of respondent No.5 i.e. the Chief Minister and the relationship has been pointed out to be that he is father of the teacher of the son of the Chief Minister. The age of retirement at 72 years has been kept only to accommodate him as the Chairman of the Board, which, he asserts, is not sustainable in the light of the observations of this Court in Civil Writ Petition No.11082 of 1999 (Manmohan Singh Chaudhary Vs. State of Haryana and others), wherein it has been stated that the increase in age, which was made at the behest of Chief Minister, was with an intention to favour the petitioner therein, who was appointed as the Chairman of the H.S.S.C. at the age of 67 years, when the age was increased to 70 years and thereafter to 72 years from the earlier age fixed for retirement of the Chairman at 60 years. The age fixed for holder of Constitutional offices such as the Judges of the High Court, Chairman and Members of the State Public Service Commission is 62 years whereas the age of retirement of the Judges of the Supreme Court and Chairman and Members of the Union Public Service Commission is 65 years. Even the age of retirement of the Chairman of the National Human Rights Commission is 70 years and, therefore, fixing the age at 72 years, that too of the Member of the H.S.S.C., which is not a Constitutional post, was said to be unjustified.
Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh
Civil Writ Petition No.5084 of 2013 (O&M) :{ 6 }:
Challenging the suitability of respondent No.6 as the Chairman of the Board, the counsel has referred to the judgement passed by this Court in Civil Writ Petition No.15656 of 2010 (Sanjeev Kumar and others Vs. State of Haryana and others), decided on 11.9.2012, (Annexure P-9) alongwith other writ petitions, wherein adverse comments have been made in respect of the mode of functioning of the said respondent i.e. he being the Chairman of H.S.S.C. had not involved or taken into confidence the other Members of the Commission and had acted unilaterally without consulting and associating the Members in any of the decisions. The basic concept of collective responsibility or decision making process as postulated in the notification under which the H.S.S.C. was constituted stood violated. The Letters Patent Appeal in L.P.A. No.1555 of 2012, Vijay Kumar and others Vs. Sanjeev Kumar and others, preferred against the said judgement stands dismissed on 30.09.2013, by upholding the observations made by the Single Judge and costs were also imposed. On this basis, the selection and appointment of respondent No.6 is sought to be challenged, being arbitrary with a malafide intention and, thus, unsustainable, which deserves to be quashed. Acquaintance of respondent No.5 with respondent Nos.7 to 10 has also been highlighted to assert that their appointment is also not on merits but for other reasons alien to the merits for selection to the post of Member.
Referring to Article 320 of the Constitution of India, Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 7 }:
highlighting therein the functions of the H.P.S.C., learned Senior counsel for the petitioner asserts that it has been assigned the basic function of conducting examinations for appointments to the services of the States. No provision under the Constitution abrogates the absolute power vested in this regard in the State Public Service Commission. Intention of the framers of the Constitution is clear and apparent that the State Government is not empowered to bypass the Commission at its sweet will and to make selection to the services under the State through its own agencies. Chapter II of Part XIV of the Constitution would just be rendered redundant and the use of the word `shall' in various clauses makes it absolutely clear that the makers of the Constitution had never intended to create any exception so far as the duty of the Public Service Commission to conduct examinations for appointment to the services is concerned. Referring to Article 321, he submits that the Constitution rather provides for extension of the functions of the Commission for making recruitments to the services of any legal authority or other body corporate constituted by law or any public institution. The basic structure of the Constitution of India by abrogating and diluting the powers and functions of a Constitutional body i.e. the Public Service Commission stands violated, especially when the Haryana Government has entrusted the selection to more than 90% of the posts and services under the State to various Government agencies having the effect of nullifying Chapter II Part XIV of the Constitution. Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh
Civil Writ Petition No.5084 of 2013 (O&M) :{ 8 }:
The independence of the body, such as a Public Service Commission as provided for in the Constitution, stands compromised by constituting such like Government agencies who can be pressurized and influenced in the manner of selection and making appointments to the posts and services of the State. Mandate of the Constitution has been overlooked and rather violated as Article 320 of the Constitution of India requires consultation with the Commission even if a Board is to be formed. Nothing has been provided under Article 320 of the Constitution of India, which negates the mandate of the Constitution with regard to the consultation with the Commission, especially the recruitment of the persons on the posts and to the State services. The process of selection for appointment bypassing the Commission is unsustainable and, thus, enactment of the impugned 2011 Act is unsustainable.
Referring to various provisions of the impugned 2011 Act, the learned Senior counsel has submitted that it is not an independent body as the appointment to the Board is solely at the discretion of respondent No.5 and, therefore, would be under his influence while performing its duties and functions. The 2011 Act, being violative of the basic structure of the Constitution, especially having the effect of abrogation of Chapter II Part XIV of the Constitution and putting it as a substitute to the Commission, when the same has been enacted with the precise tailor-made qualifications and purpose to accommodate a particular person, Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 9 }:
cannot be sustained and is based upon personal bias and malafide intention of respondent No.5 and, thus, the selection/appointment of the Chairman and Members deserve to be quashed by declaring it ultra-vires the Constitution. In support of these contentions, counsel for the petitioner has referred to the judgements of the Supreme Court in K.Narayanan and others Vs. State of Karnataka and others, 1994 Supp. (1) Supreme Court Cases 44 and Babu Verghese and others Vs. Bar Council of Kerala and others, (1999) 3 Supreme Court Cases 422 to assert that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all.
Referring to a Division Bench judgement of the Allahabad High Court in the case of Sushil Chandra Srivastava Vs. State of U.P. and others, MANU/UP/1237/1995, the counsel contends that proviso to Clause (3) of Article 320 of the Constitution of India cannot be converted into a general rule and will not nullify the same. Proviso is added to an enactment to qualify or create an exception and, therefore, the general rule has to be given precedence. Reference has also been made to the judgement of the Supreme Court in the case of J & K Public Service Commission Vs. Dr.Narinder Mohan, (1994) 2 Supreme Court Cases 630 to contend that once the statutory rules are framed, appointment shall be made only in accordance with the said rules and no exception to the same can be made. The proviso to Article 320 of the Constitution of India would Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 10 }:
not be applicable in those circumstances in respect of which the consultation with the Commission may be mandatory. He, on this basis, asserts that exercise of powers under proviso to Clause (3) of Article 320 of the Constitution of India, amending the Haryana Public Service Commission (Limitation of Functions) Regulations, 1973, vide notification dated 16.12.2011 by adding Clause (r), whereby the initial appointments to the posts of teachers, education supervisors and teacher educators of Group `B' in School Education Department, Haryana, which has been withdrawn, is unsustainable.
On the above submissions, prayer has been made for allowing the writ petition.
Learned Advocate General for the State of Haryana, on the other hand, has raised a preliminary objection with regard to the maintainability of the present writ petition by asserting that the same is not a PIL but has been filed merely on the basis of personal/ political interest litigation. Further an objection has been taken with regard to the non-compliance with the requirement of the maintainability of Public Interest Litigation Rules, 2010, forming part of Chapter I-A (c), Volume V of the Punjab and Haryana High Court Rules and Orders. He further submits that the petitioner has a checkered political career and this writ petition has been preferred with a malafide intention, motivated by political consideration against the present Government of the State. It has been asserted that the petitioner has not disclosed in the present writ petition that he had Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 11 }:
contested the 2009 assembly elections from Kalka Constituency as a Bahujan Samaj Party candidate. After being given an opportunity to file an additional affidavit, the petitioner has not disclosed complete details of his political interest and clash with the ruling party. It has been pointed out by the learned Advocate General, by referring to affidavit dated 24.08.2013 filed by the State, the association and growth of the petitioner with the ruling Congress Party in State of Haryana from the year 1992 to 2009, including various administrative and political posts held by him in Congress Party. Petitioner thereafter left the Congress Party and fought election to the Vidhan Sabha on a ticket of the Bahujan Samaj Party in the year 2009. However, after his defeat in the said election, he joined another political party i.e. Indian National Lok Dal (INLD) in the year 2011 and at present is Member of the said party. The petitioner has been giving political statements in the Press Conferences and has been participating in the functions and political rallies of the political parties. On this basis, it has been asserted by the learned Advocate General, Haryana, that the writ petition cannot be treated as a PIL and, thus, deserves to be dismissed.
Objection has also been raised to the entertainment of the present writ petition as a PIL on the ground that the writ petition primarily is against the selection and appointment of respondent Nos.6 to 10, which, being a service matter, cannot be entertained in the light of the authoritative pronouncement of the Supreme Court in Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 12 }: its various decisions, including, Hari Bansal Lal Vs. Sahodar Prasad Mahto and others, (2010) 9 Supreme Court cases 655 and Girjesh Shrivastava and others Vs. State of Madhya Pradesh and others, (2010) 10 Supreme Court Cases 707.
Learned Advocate General, Haryana, has referred to the judgement of the Supreme Court in the case of State of U.P. Vs. Manbodan Lal Srivastava, AIR 1957 SC 912 to contend that Article 320 of the Constitution of India is not mandatory and rather is directory. Therefore, he contends that by taking out of the purview of the HPSC., the posts and the services of the Haryana Education Department specified in the 2011 Act does not violate the basic structure of the Constitution as the Constitution itself under proviso to clause (3) of Article 320 of the Constitution of India carves an exception.
As regards the challenge to the vires of 2011 Act based upon malafides and with an intention to benefit respondent No.6 in particular, as has been asserted by the petitioner, he asserts that the same cannot be attributed to the legislative action of the State. In support of this contention of his, reliance has been placed upon the judgements of the Supreme Court in T.Venkata Reddy and others Vs. State of Andhra Pradesh, (1985) 3 Supreme Court Cases 198, State of A.P. and others Vs. MCDOWELL and Co. and others, (1996) 3 Supreme Court Cases 709 and State of M.P. Vs. Rakesh Kohli and another, (2012) 6 Supreme Court Cases 312. His Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 13 }:
submission is that the Act cannot be challenged on the ground of non-application of mind or malafides or it being arbitrary or unreasonable. The Court cannot sit in judgement over the wisdom of the legislature. There are only two grounds on which a law laid down by the legislation can be struck down by the Courts viz lack of legislative competence and violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. He has referred to Entry 41 of List II, Schedule 7 of the Constitution to assert that the State is competent to legislate under Article 246 of the Constitution of India as the same relates to State Public Services. The State legislature was, thus, fully competent to enact the 2011 Act.
Referring to the mode of appointment of the Chairman and the Members of the Board, as provided under the 2011 Act, the learned Advocate General asserts that appointment of the Chairman and the Members is to be made by the Government on the recommendation of the collegium, which consists of the Chief Secretary, Principal Secretary/Commissioner, School Education, Haryana and the Vice Chancellor of any of the State Universities to be co-opted by the Chief Secretary. On the basis of the recommendations of the panel framed by the collegium, the Chief Minister selects the Chairman and Members as per recommendations for the purpose of making appointment by the Government. This process and procedure is based upon a well Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 14 }:
recognized and accepted norm being followed while making appointments to various important posts. Referring to Section 7 of the impugned 2011 Act, which deals with removal of a Member of the Board by the Government on the ground of misbehaviour, he asserts that the same can be resorted to only after an enquiry by a retired High Court Judge is held and who holds that such a Member ought to be removed on such ground. The appointment once made gives free and independent hand to the Members of the Board to proceed in a manner which is provided for by the statutory rules, governing the service and independent of any influence of the Government.
The Advocate General, Haryana, has referred to the past unpleasant events, which have taken place in the Haryana Public Service Commission with the initiation of enquiry against the Chairman and Members of the Commission, which ultimately resulted in their removal by the President after the decision of the Supreme Court as provided under Article 317. Thereafter, on the basis of the communication received from the Department of Personnel and Training, Ministry of Personnel, Government of India, State of Haryana decided to reduce the strength of the Commission from 12 Members to 6 Members in addition to the Chairman vide notification dated 19.12.2012. At present, there are sufficient number of Members of the HPSC apart from the Chairman as only one post of Member is vacant.
The reason explained by the learned Advocate General, Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 15 }: Haryana, which persuaded the State to enact the 2011 Act, is the fact that the HPSC was unable to fill up the posts, requisition of which was sent to it because of the above mentioned circumstances within a reasonable time and as a result the recruitment process of the Education Department got delayed, which added to the posts remaining vacant. Further, with the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) coming into force with effect from 1.4.2010, mandating free and compulsory education to all children of the age of 6 to 14 years, which requires maintaining the prescribed teacher pupil ratio and other mandatory requirements, apart from providing under Section 26 of RTE Act that the Government has to ensure that the vacancies in the school shall not exceed 10% of the total strength, filling up of the vacant posts became of paramount importance. There was, thus, an urgent need not only to cut short the delay in filling up the vacancies but to devise a system under which advance panels are available with the Department at the commencement of the academic session of each year so that the posts falling vacant are filled up immediately. To fulfill this responsibility put on the State by the RTE Act, it was decided to set up a separate Teachers Selection Board exclusively for recruitment of school teachers (Gazetted and non-gazetted posts). Keeping in view the large number of vacancies and to fill up the same, this step was taken. Out of 12999 posts of Lecturers (school cadre), around 4000 posts are lying vacant. Requisition for filling up Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 16 }:
14216 posts of Post Graduate teachers has been sent to the Board. Apart from this, he has referred to the judgement passed by this Court in Civil Writ Petition No.7082 of 2007, where the State of Haryana has submitted a time schedule to fill up the vacant posts of all categories of teachers in the school. An affidavit has been filed by the Department that the State Government has constituted the Board for recruitment of teachers in which extension of time was sought to fill up the posts but the same has been declined by this Court. Guest teachers, who were appointed by the State Government to fill up this gap as a stop-gap-arrangement, has also not been allowed to continue and faced with this situation, the necessity and utility of enactment has been stressed upon by him.
As regards the malafides alleged against the Chief Minister of Haryana by the petitioner, he asserts that the same is based upon pure political considerations. Referring to the antecedents of respondent No.6 and the qualifications prescribed under the 2011 Act, of the Chairman and all the Members of the Board, he asserts that it cannot be said that respondent Nos.6 to 10 (Members of the Board) are not qualified to hold the said posts nor can they be said to be such who will not be fit for holding the said posts. He asserts that the age of retirement of the Chairman/Members of the Board is a policy decision of the Government, which cannot be interfered with by the Court. Rather than that, he further asserts that the legislative function prescribed Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 17 }:
the same under the 2011 Act and no malafide can be attributed to it. The challenge to prescription of the age, thus, cannot be sustained. However, the observations made by this Court in Sanjeev Kumar's case (supra), which have been reiterated and upheld by the Division Bench of this Court qua respondent No.6, could not be denied by him.
Referring to the observations made by this Court in Manmohan Singh Chaudhary's case (supra), the learned Advocate General submitted that ultimately the Division Bench of this Court left the entire issue relating to appointment of the Chairman and the Members of the H.S.S.C. and their age limit to be re-examined by the High Powered Committee. His further submission is that in the said case, the notification issued by the Government was referred to and it was stated that the entire issue relating to appointment and the age of the Chairman and the Members was at the instance of the Chief Minister as he wanted to favour a particular person. Present is a case where the Act itself provides for a particular age and, therefore, the appointment of respondent No.6 and the prescription of age in the statute cannot be said to be in any manner unjustified or violative of any provision under the Constitution, which would render it illegal or ultra-vires. He accordingly prays for dismissal of the writ petition.
Counsel for the HPSC and private respondents have primarily supported the submissions as have been made by learned Advocate General, Haryana, and by referring to their respective Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 18 }: pleadings have asserted that allegations and relationships as mentioned are incorrect and their appointments have been made in accordance with law, which does not call for any interference by this Court.
We have heard counsel for the parties and have gone through the records.
First question, which requires an answer from this Court, which will determine the validity or otherwise of 2011 Act, is the competence of the State legislature to legislate the said Act.
Article 246 of the Constitution of India deals with the subject matter of laws made by the Parliament and by the legislature of the State. Clause (1) of the said Article deals with the exclusive power of the Parliament to make laws with respect to any matters enumerated in List I in the 7th Schedule, which has been referred to in the Constitution as "Union List". This power is notwithstanding anything mentioned in Clauses (2) and (3) of this Article. Clause (3) of this Article deals with the powers of legislature of any State to make laws with respect to the matters enumerated in List II in 7th Schedule referred to as "State List". Clause (2) deals with the powers of the Parliament and the State legislature to make laws with respect to the matter enumerated in List III in the 7th Schedule referred to as the "Concurrent List" and Clause (4) is the residue power which is with the Parliament to make laws with respect to any matter for any part of the territory of India, not included in a State irrespective of the Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 19 }: matter being enumerated in the "State List".
For the purpose of determining the power of the State legislature with regard to its competence to legislate on a matter, the matters enumerated in State List and the Concurrent List would be the domain available as provided in 7th Schedule. Entry 41 in List II (State List) mentions State Public Services and State Public Service Commission. In the Concurrent List i.e. List III of the 7th schedule, entry 23 deals with employment and unemployment, apart from social security and social insurance and entry 25 enumerates education, including technical education, medical education and Universities subject to the provisions of entries 63, 64, 65 and 66 of List I (Union List), vocational and technical training of labour.
Nothing has been pointed out by counsel for the petitioner, which would suggest that there is any central legislation,, which would be repugnant to 2011 Act. Entry 41 in List II and Entries 23 and 25 in List III, when read together in conjunction, leave no manner of doubt that the State legislature has the power to legislate the impugned 2011 Act.
The second ground of challenge to the vires of the 2011 Act by counsel for the petitioner is that the said Act is repugnant to Article 320 of the Constitution of India, which would exclusively empower the Public Service Commission to conduct examination for appointments to the services of the State and being consulted on all matters relating to method of recruitment to civil services and for civil Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 20 }:
posts treating it to be mandatory, is concerned, suffice it to say that proviso to Clause (3) of Article 320 of the Constitution of India has been interpreted by the Supreme Court in Manbodan Lal Srivastava's case (supra) to say that it is directory and not mandatory as follows:-
"7. Article 320 does not come under Chapter I headed "Services" of Part XIV. It occurs in Chapter II of that part headed "Public Service Commissions". Articles 320 and 323 lay down the several duties of a Public Service Commission. Article 321 envisages such "additional functions" as may be provided for by Parliament or a State Legislature. Articles 320 and 323 begin with the words "It shall be the duty.......", and then proceed to prescribe the various duties and functions of the Union or a State Public Service Commission, such as to conduct examinations for appointments; to assist in framing and operating schemes of joint recruitment; and of being consulted on all matters relating to methods of recruitment or principles in making appointments to Civil Services and on all disciplinary matters affecting a civil servant. Perhaps, because of the use of the word "shall "
in several parts of Article 320, the High Court was led to assume that the provisions of Art. 320(3)(c) were mandatory, but in our opinion, there are several cogent Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 21 }:
reasons for holding to the contrary. In the first place, the proviso to Article 320, itself, contemplates that the President or the Governor, as the case may be, "may make regulations specifying the matters in which either generally, or in any particular class of case or in particular circumstances, it shall not be necessary for a Public Service Commission to be consulted." The words quoted above give a clear indication of the intention of the Constitution makers that they did envisage certain cases or classes of cases in which the Commission need not be consulted. If the provisions of Article 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary. If it had been intended by the makers of the Constitution that consultation with the Commission should be mandatory, the proviso would not have been there, or, at any rate, in the terms in which it stands. That does not amount to saying that it is open to the Executive Government, completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted. Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 22 }:
that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for, in order, first, to give an assurance to the Services that a wholly independent body not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiassed advice and opinion on matters vitally affecting the morale of public services. It is, therefore, incumbent upon the Executive Government, when it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation.
8. Secondly, it is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matter, binding on the Government. Of course, the Government, when it consults the Commission on matters like these, does it not by way of a mere formality, but, with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 23 }:
imposed. If the opinion of the Commission were binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been-fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Article 320(3)(c) could have the effect of nullifying the final order passed by the Government.
9. Thirdly, Article 320 or the other articles in Chapter II of Part XIV of the Constitution, deal with the constitution of the Commission and appointment and removal of the Chairman or other members of the Commission and their terms of service as also their duties and functions.
Chapter II deals with the relation between Government and the Commission but not between the Commission and a public servant. Chapter II containing Article 320, does not, in terms, confer any rights or privileges on an individual public servant, nor any constitutional guarantee of the nature contained in Chapter I of that Part, particularly Article 311. Article 311, therefore, is not, in any way, controlled by the provisions of Chapter II of Part XIV, with particular reference to Article 320.
10. The question may be looked at from another point of Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 24 }:
view. Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Article 320(3)(c) ? It does not, either in express terms or by implication, provide that the result of such a non-compliance is to invalidate the proceedings ending with the final order of the Government. This aspect of the relevant provisions of Part XIV of the Constitution, has a direct bearing on the question whether Article 320 is mandatory. The question whether a certain provision in a statute imposing a duty on a public body or authority was mandatory or only directory, arose before their Lordships of the Judicial Committee of the Privy Council in the case of Montreal Street Railway Company v. Normandin. In that case the question mooted was whether the omission to revise the jury lists as directed by the statute, had the effect of nullifying the verdict given by a jury. Their Lordships held that the irregularities in the due revision of the jury lists, will not ipso facto avoid the verdict of a jury. The Board made the following observations in the course of their judgment:
"...... The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 25 }:
general rule can be laid down, and that in every case the object of the statute must be looked at.
The cases on the subject will be found collected in Maxwell on Statutes, 5th Edn., p.596 and following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."
The principle laid down in this case was adopted by the Federal Court in the case of Biswanath Khemka v. The King-Emperor. In that case, the Federal Court had to consider the effect of non-compliance with the provisions of Section 256 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial powers or of enhanced magisterial powers, etc. The Court repelled the contention that the provisions of Section 256, aforesaid, Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 26 }:
were mandatory. It was further held that non-compliance with that section would not render the appointment otherwise regularly and validly made, invalid or inoperative. That decision is particularly important as the words of the section then before their Lordships of the Federal Court were very emphatic and of a prohibitory character.
11. An examination of the terms of Article 320 shows that the word "shall" appears in almost every paragraph and every clause or sub-clause of that article. If it were held that the provisions of Article 320(3)(c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to be mandatory. If they are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in clause (3) of Article 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in the matter. This result could not have been contemplated by the makers of the Constitution. Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 27 }:
are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on Statutory Construction-Article 261 at p. 516, is pertinent:
"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other..........."
In the light of the above referred authoritative pronouncement of the Hon'ble Supreme Court, it must be held that the provisions of Article 320 of the Constitution of India are not mandatory but directory in nature. The challenge, thus, to 2011 Act of it being in conflict with the constitutional provisions, cannot sustain and is, therefore, rejected.
The third ground of challenge to 2011 Act has been posed by contending that it being a motivated piece of legislation because Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 28 }:
of the malafides of respondent No.5 with an intention to appoint respondent No.6 as the Chairman of the Board and for achieving this purpose providing for the qualifications and the age, which is suitable to him and his interest, cannot be sustained as no malafides can be attributed to the legislature. Further, validity of an Act as enacted by the Parliament or Legislature can be struck down by the Courts on only two grounds; (a) lack of legislative competence and (b) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. Apart from these two grounds, there is no other ground of invalidation available for challenging a law made by the Parliament or legislature. These two grounds, which are available to the petitioner to challenge the 2011 Act, have already failed in the preceding paragraphs above. No enactment can be struck down just by saying that it is arbitrary and illegal or that the Court thinks that it is unjustified. The Court cannot sit in judgement over the wisdom of the legislature nor can transgress its powers. The scope of interference as regards legislative action and the administrative action is quite different and the parameters to deal with them are distinct. Administrative action can be interfered with while exercising judicial review on the ground of it being unreasonable or irrational or there being any illegality or procedural impropriety but the same cannot be utilised and applied to strike down an enactment on any of these grounds. For these principles, reference can be made to the case of McDOWELL and Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 29 }:
Co. (supra).
In T.Venkata Reddy's case (supra), the Hon'ble Supreme Court, while dealing with the powers and permissibility of the Court to strike down an ordinance on the ground of non- application of mind or malafides or that the prevailing circumstances did not warrant the issue of the said ordinance, held as follows in Para 14:-
"The above view has been approved by another Constitution Bench of this Court in A.K. Roy v. Union of lndia. Both these decisions have firmly established that an ordinance is a 'law' and should be approached on that basis. The language of clause (2) of Article 123 and of clause (2) of Article 213 of the Constitution leaves no room for doubt. An ordinance promulgated under either of these two articles has the same force and effect as an Act of Parliament or an Act of the State Legislature, as the case may be. When once the above conclusion is reached the next question which arises for consideration is whether it is permissible to strike down an Ordinance on the ground of non-application of mind or mala fides or that the prevailing circumstances did not warrant the issue of the Ordinance. In other words, the question is whether the validity of an Ordinance can be tested on grounds similar to those on which an executive or judicial Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 30 }:
action is tested. The legislative action under our Constitution is subject only to the limitations prescribed by the Constitution and to no other. Any law made by their Legislature, which it is not competent to pass, which is violative of the provisions in Part III of the Constitution or any other constitutional provision is ineffective. It is a settled rule of constitutional law that the question whether a statute is constitutional or not is always a question of power of the Legislature concerned, dependent upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it. While the courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motives of the Legislature in passing a statute is beyond the scrutiny of courts. Nor can the courts examine whether the Legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the courts. An Ordinance passed either under Article 123 or under Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 31 }:
Article 213 of the Constitution stands on the same footing. When the Constitution says that the Ordinance- making power is legislative power and an Ordinance shall have the same force as an Act, an Ordinance should be clothed with all the attributes of an Act of Legislature carrying with it all its incidents, immunities and limitations under the Constitution. It cannot be treated as an executive action or an administrative decision." (emphasis is ours) In view of the above, the challenge to 2011 Act on the grounds of bias, malafide intend and being a motivated enactment cannot sustain and, therefore, the same stands rejected.
It needs no highlighting the aspect that there is always a presumption in favour of the constitutionality and a law will not be declared unconstitutional, unless the case is so clear as to be free from doubt and that too on the basis of the two fundamental principles with regard to the powers of the Court to strike down a legislation, where the validity of the statute is questioned and there are two interpretations, the one which would make the law valid has to be preferred over the other which would render it void. This principle is well accepted and reference in this regard can be made to the judgement of the Supreme Court in Karnataka Bank Limited Vs. State of Andhra Pradesh and others, (2008) 2 Supreme Court Cases 254.
Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 32 }:
The fourth ground which has vehemently been argued by counsel for the petitioner is that the age of retirement of Chairman has been fixed at 72 years with the sole intention and object of accommodating respondent No.6 at the behest of respondent No.5 and the same would fall foul to the observations made by the Division Bench of this Court in the case of Manmohan Singh Chaudhary (supra). This argument again cannot be accepted as there is a basic difference between the said case and the present one. In Manmohan Singh Chaudhary's case (supra), the age was being increased at the behest of the Chief Minister by issuing notifications from time to time, which was primarily an executive or an administrative decision and the grounds for testing the validity of the same, as observed above, is much more wide, whereas in the present case, the age of retirement has been prescribed under the statute, for which the scope is limited. This will, in any case, fall within the domain of policy decision of the State, in which the Courts should not interfere and in any case, as has been held above, no malafides can be attributed to any act of legislature and when the competent legislature has enacted a statute, prescribing a particular age, the same cannot be struck down on the grounds of malafides of respondent No.5, as has been alleged. Further, there is no specific and convincing evidence to this effect available on record, which would support the claim of the petitioner, although the same will have no relevance with regard to the validity or otherwise of the Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 33 }:
prescription of the age under the 2011 Act.
A feeble fifth ground addressed by the learned Senior Advocate for the petitioner impressing upon the aspect of 2011 Act being unnecessary and without any justification, especially when the Commission is now functional with a strength of 6 out of 7 being there and, thus, the notification, withdrawing the posts from the purview of the Commission was totally unjustified and not warranted also has no force. This would again be a policy decision on the part of the State. That apart, respondent-State has, in its reply, supported the requirement and necessity of enacting 2011 Act because of the delay in filling up of the vacancies in the Education Department by the HPSC for various reasons highlighted. In addition to this, with the RTE Act coming into force with effect from 1.4.2010, making education to children of age of 6 to 14 years free and compulsory, the posts cannot be left vacant so as to ensure and maintain the mandated teachers pupil ratio as prescribed under the provisions of the RTE Act. Further, it has been provided under this Act that the Government has to see to it and ensure that the vacancies in the schools, in any circumstance, not exceed 10% of the total strength of the sanctioned posts. There were large number of posts lying vacant of various categories of teachers, which had to be filled up so that the period of three years, which was provided for under the RTE Act to comply with the requirements of the said Act, is adhered to. It was under these circumstances that the State had enacted the 2011 Act Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 34 }:
and in any case it is an ongoing process as there are large number of schools in the State of Haryana which require recruitments to the posts of teachers on continuous and consistent basis.
Another contingency, which has been pointed out by the learned Advocate General, is the order passed by this Court in Civil Writ Petition No.7082 of 2007, where the State of Haryana had, through an affidavit, given a time schedule to fill up the vacant posts of all categories of teachers in the schools. The stop-gap- arrangement, which was resorted to by the State of Haryana by appointing Guest Teachers on temporary basis, has not been further granted approval by the Court and an order was passed for not extending further appointments/tenure of these Guest Teachers beyond the time schedule given by the State of Haryana in the writ petition. There are ample justifications and reasons available with the State of Haryana to have enacted 2011 Act and under it, constituted the Board. This further leaves the claim of the petitioner with regard to the requirement or necessity of such a Forum for making selection and appointment of teachers in the school cadre a hollow assertion.
An objection has been raised by the learned Advocate General on the maintainability of the present writ petition as a PIL and the competence of the petitioner to initiate the same. Although this aspect could have been dealt with at the very inception by us but since the matter had been argued at length, we have proceeded to record our reasons to deal with the case on merits as we have held Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 35 }: above, finding it to be without any legal force or basis.
Before proceeding further, we may highlight the principles relating to entertainment of the PIL, as have been culled down by us in Civil Writ Petition No.24388 of 2011 (Raghuvir and others Vs. State of Haryana and others) decided on 2.7.2013. The same are as follow:-
""Public Interest Litigation is an important jurisdiction conferred on the constitutional Courts to be exercised with great circumspection and caution as there is every possibility of this jurisdiction being misused by interested persons, who, in the garb of this litigation, can make an effort to settle their personal scores. As the name itself suggests this jurisdiction is to be exercised for the benefit of the general public and that too, primarily where the benefit is being sought for the section of the society, who are not able to approach the courts and, therefore, predominantly to provide access to justice to the poor, deprived, vulnerable, discriminated and marginalized sections of the society. Public Interest Litigation can be termed as one where any interested person, in the welfare of the people, who is in an disadvantageous position, knocks the doors of the Court for protection of the fundamental rights of such section of the disadvantaged people. The common rule of locus standi Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 36 }:
is relaxed for a person who complaints on their behalf for redressal of their grievance so that their rights can be protected and their rightful claims granted to them but this extraordinary jurisdiction cannot be put into effect to settle the dispute between the two warring groups, which dispute falls purely in the realm of private law and the same thus, cannot be allowed to be agitated as a Public Interest Litigation.
It is also, by now, well settled that this sacrosanct jurisdiction of Public Interest Litigation should be invoked very sparingly and that too, in favour of vigilant litigant and not for persons, who invoke this jurisdiction after an inordinate, unexplained delay when much water has flown since the cause of action had arisen and further not for persons, who invoke this jurisdiction for the sake of publicity or for the purpose of their private ends. This jurisdiction is meant for the purpose of coming to the rescue of the down trodden and not for the purpose of serving private ends. Therefore, the Court should not exercise this jurisdiction lightly but should exercise in very rare and few cases involving genuine public cause(s) of a large number of people, who cannot afford litigation and are made to suffer at the hands of authorities."
Keeping these basic principles in mind and on the Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 37 }: objection being raised by the respondents on the competence of the petitioner to maintain the present writ petition as a PIL, the petitioner was given an opportunity to file an affidavit in support of his competence to do so, especially in the light of the requirement of the High Court Rules and Orders dealing with this aspect, which were required to be complied with. An affidavit dated 22.8.2013 has been filed by the petitioner in response to this objection, which highlights various writ petitions, which have been filed by him and treated and entertained as PILs. In the said affidavit, he has given details of 11 cases, which have been initiated at his behest and have been treated as PILs by this Court. He has further stated that he had been working as the President of the Shivalik Vikas Manch, which is entirely a non- political organization and works to help alleviate the problems faced by the people of the area. He has been organizing blood donation camps since 1987 and has organized camps for donation of eyes after death, where 400 persons volunteered to do so. He was appointed as the Member of the Managing Committee of D.A.V. Senior Public School, Surajpur, Panchkula and has also admitted that he had contested 2009 Assembly elections from Kalka constituency as a Bahujan Samaj Party candidate. Orders and judgements passed by this Court in the said PILs filed by the petitioner have also been appended therewith.
Reply to the said affidavit has been filed by the State dated 24.08.2013 wherein it has been highlighted that the petitioner Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 38 }: has not disclosed his complete antecedents and political activities and his association with different political parties. It has been asserted that he joined the Congress Party in the year 1982 and became the President of the National Student Union of India (NSUI). In 1987, he became the General Secretary of the State NSUI and thereafter as Senior Vice President of the State NSUI in 1988. He was appointed as Chairman of the Kalka Market Committee in the year 1992 and then was elected as P.C.C. Member and appointed as General Secretary of the State Youth Congress. In the year 1997, he was nominated as Chairman of the District Congress Committee, Legal Cell and in 2000, appointed as General Secretary of the State Youth Congress again. In the year 2003, petitioner was appointed as Vice President of the Haryana Pradesh Congress Committee, Legal Cell and in 2004, as Secretary of the Congress. The petitioner thereafter left the Congress Party and joined Bahujan Samaj Party and got a ticket for contesting the Assembly elections, on which he did contest in the year 2009. After his defeat, he again changed his political party and joined the Indian National Lok Dal in the year 2011 and at present is associated with it. Reference has also been made to various news items published in various newspapers, where the petitioner has given statements and participated in functions/political rallies. There is no rebuttal to this affidavit by the petitioner.
In the light of the above facts and keeping in view the conduct of the petitioner and his meddling in politics and shifting his Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 39 }: allegiance from one political party to the other and apart from that participating in functions and political rallies and giving statements on those forums, leave much to be explained on the part of the petitioner with regard to his claim for involvement of no personal interest in the present writ petition or any other motive except the public interest. Merely because the petitioner had earlier been filing writ petitions, which have been entertained as PILs, does not entitle him or grant him a licence to use this Forum as a pro-bono litigant for his political ambitions. Each petition, which is filed by a person, has to be tested separately with regard to its maintainability as a PIL. If a particular person has been earlier filing petitions on social causes as PIL, cannot be treated as a ground for not scrutinizing the purpose and intent of such person to file a subsequent petition. Each time, a petition, which is filed, has to be evaluated, looked into, considered and weighed through the process of laid down principles of scrutiny on the basis of the issues involved therein to find out the real purpose for which it has been filed and to test the same on the touch stone of the requirements as provided for in the Public Interest Litigation Rules, 2010, forming part of Chapter 1-A(c), Volume V of the Punjab and Haryana High Court Rules and orders, apart from the tests as have been laid down by the Supreme Court in its various pronouncements while dealing with the maintainability of a PIL. By now, it is well settled that no PIL is maintainable in service matters and reference in this regard can be made to the judgement of the Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 40 }: Supreme Court in Duryodhan Sahu (Dr) Vs. Jitendra Kumar Mishra, (1998) 7 SCC 273, which has been followed in various judgements by the Supreme Court till date such as in Hari Bansal Lal's case (supra) and Girjesh Shrivastava's case (supra) relied and referred to by the learned Advocate General. One of the prayer as made in the present writ petition, to be specific Prayer (v), where a writ in the nature of certiorari has been sought to be issued for quashing the appointments of respondent Nos.6 to 10 being Chairman and Members of the Board, would fall in the category of a service matter, for which PIL would not be maintainable.
The fact that the petitioner first left the Congress Party, which is a ruling party in the State of Haryana and further contested Assembly elections in the year 2009 on a Bahujan Samaj Party ticket, which he had joined, shows that he had a grudge against the ruling party. He has now even switched over his allegiance to another political party i.e. Indian National Lok Dal in the year 2011. His statements, which have been placed on record alongwith the photographs, clearly depict his political ambitions and the present writ petition, thus, can safely be said to be one which is motivated with a political intention to gain publicity by misusing the judicial Forum by projecting the present petition as a PIL, taking the shield of the earlier petitions, which had been filed by him as PILs. The present writ petition, thus, is to be categorized as publicity interest litigation or political interest litigation, lacking bonafides, leading to Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 41 }: the conclusion that the petitioner has no locus-standi to file the present petition as a PIL and rather the same is a petition motivated with malafides against respondent No.5 to gain political milage by misusing the judicial Forum. The present petition, being a mischievous litigation, deserves to be dismissed with costs.
In view of the above, we dismiss the present writ petition as not maintainable in the form of PIL for the lack of locus-standi of the petitioner as also on merits with costs, quantified at `25,000/- to be deposited with the Mediation and Conciliation Centre of this Court within a period of two weeks from today. Interim order dated 11.04.2013 passed in this case stands vacated.
However, before parting with this case, an aspect which has come to light from the pleadings and submissions made by the counsel for the parties during the hearing of the case relating to and with regard to the conduct of respondent No.6 while he was the Chairman of the Haryana Staff Selection Commission which requires a mention to be made here. His role and the manner of working during the process of selection to the posts of Physical Training Instructors (PTIs), pursuant to advertisement No.6/2006, has severely been criticised and adversely commented upon by the Single Bench, which has been upheld and reiterated by the Division Bench of this Court in L.P.A. No.1552 of 2012 Vijay Kumar and others Vs. Sanjeev Kumar and others), decided on 30.9.2013 (Annexure `A'), needs to be taken note of by the State. It is, however, Khurmi Rakesh 2013.12.13 16:50 I attest to the accuracy and integrity of this document chandigarh Civil Writ Petition No.5084 of 2013 (O&M) :{ 42 }:
for the competent authority to take a decision at its own end with regard to continuance or otherwise of respondent No.6 as the Chairman of the Board. We stop short here as we are quite sanguine of an appropriate decision to be taken in this regard within a reasonable time. We would like to clarify here itself that the above observations of ours will have no impact whatsoever upon the process of selection initiated or in process and/or concluded by the Board headed by the respondent No.6.
( SANJAY KISHAN KAUL ) (AUGUSTINE GEORGE MASIH)
CHIEF JUSTICE JUDGE
December 13,2013
khurmi
Whether to be referred to the Reporter or not? Yes/No
Khurmi Rakesh
2013.12.13 16:50
I attest to the accuracy and
integrity of this document
chandigarh