Punjab-Haryana High Court
Kashish Babbar vs State Of Punjab & Ors on 27 October, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.17421 of 2012
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.17421 of 2012
Date of Decision: 27.10.2014
Kashish Babbar ..... Petitioner
Versus
State of Punjab and others ... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Surinder Garg, Advocate,
for the petitioner.
Ms. Monica Chhibber Sharma, DAG, Punjab.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The petitioner holds the Three Years Diploma in Civil Engineering from Thapar Polytechnic College, Patiala. He has a Certificate dated October 03, 2011 to that effect. The petitioner is also a visually challenged person and suffers disability to the extent of 40% duly certified by the District Handicapped Medical Board, Muktsar and falls within the definition of disability in The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the Act"). Therefore, he qualifies for consideration for appointment within the quota earmarked for physically handicapped persons in public employment. The Department of Punjab Water Supply and Sanitation invited applications inter alia for recruitment to the post of Junior Engineer (Civil) for which the 3rd respondent - Centre for Development of Advanced Computing (C-DAC) was nominated to draw merit from amongst the MANJU 2014.11.12 10:39 I attest to the accuracy and authenticity of this document Chandigarh CWP No.17421 of 2012 -2- applicants and make its recommendations to the respondent department. The advertisement was issued on December 15, 2011 in the daily issue of Jagbani. A total of 55 posts were advertised out of which 27 were meant for the General category, 14 for the SC category, 7 for BC category, 4 posts for Ex-Serviceman, one post for Freedom-Fighter and 2 posts for Handicapped persons. Indisputably, the petitioner was eligible to apply for the post which he did. C-DAC made the selection through written test. In the advertisement, it was recognized that the reservation policy of the Government of Punjab issued from time to time would apply. The written test was conducted on May 06, 2012 and the petitioner appeared for the test. Thereafter, a draft list of selected candidates as per roster points was computed as well as the draft waiting list (DWL) of each category was displayed by the Department on its official website. The name of the petitioner figures at Sr. No.1 in the DWL of Handicapped Category, whereas, the name of the 4th respondent Lakhbir Singh figures at Sr. No.2 in the Waiting List. The candidate shown as selected is one Prabhjot Singh under the Handicapped Category of low vision. One person namely Kuldeep Singh has been shown to be appointed in the Physically Handicapped quota from the source of Locomotor disability. The petitioner was called by the Department by a letter dated June 20, 2012 to appear a week thereafter on June 28, 2012 for checking his documents to be brought in original. These were duly checked after which a Final Selection List (FSL) was put on the official website. In the FSL, Kuldeep Singh has been shown appointed under Locomotor/Vision and his merit number figures at Sr. No.14. At Sr. No.45 of the FSL, Prabhjot Singh whose name figured in the Draft Selection MANJU 2014.11.12 10:39 I attest to the accuracy and authenticity of this document Chandigarh CWP No.17421 of 2012 -3- List has been shown absent at the time of scrutiny of documents and has thus left the race. Therefore, his name was not recommended. The Selection List shows that the name of the petitioner was not recommended as he obtained marks less than 17% i.e. 16.25% out of 100 marks (mentioned 16.75% in the State's reply) in the written test. Consequently, the 4th respondent - Lakhbir Singh who was shown at Sr. No.2 of the DWL under the Handicapped category has been shown to be selected and appointed under the Locomotor/ Vision Category. The List is placed at Annexure P-8.
It may be noticed that out of the two posts reserved for disabled persons were one each for visually handicapped and the other for Locomotor Disabled persons. The advertisement is silent as to bifurcation of the two advertised posts in the Physically Disabled category. However, the petitioner would go to the Punjab Government Circular letter dated May 02, 1997 to demonstrate the mode of distribution of 3% reservation for persons with disabilities in direct recruitment. These are (i) blindness or low vision
(ii) hearing impairment (iii) Locomotor disability or cerebral palsy which are mentioned in Clause 3 of the Policy Circular issued in pursuance of the Act. It is a fortuitous circumstance that no candidate applied under the Hearing Impaired Category and, therefore, it is reasoned that the two advertised posts were to be distributed between the remaining category (i) and (iii) above i.e. between the visually disabled and the Locomotor disabled persons. Clause 5 of the Policy Circular lays down that the percentage of reservation at 3% should be implemented by means of 100 point roster and vacancies falling at Points 11, 40 and 71 are earmarked for the above three categories respectively. The reservation runs by the policy MANJU 2014.11.12 10:39 I attest to the accuracy and authenticity of this document Chandigarh CWP No.17421 of 2012 -4- circular through all four classes of public service. The reservation in the circular is traced to Section 33 of the Act which deals with reservation of posts. Section 33 breaks up the reservation under the Act of not less than 3% meaning 1% of the three recognized disabilities for purposes of public employment. It is not disputed by the respondent-Department that the Policy Circular is not to be applied to an advertisement which notifies only two posts without mentioning its break up or distribution category-wise. Clause 7 of the Policy Circular guards against diversion of vacancies to the other categories, General and Reserved, Horizontal or Vertical. In absence of an eligible, available and qualified candidate from the present recruitment process any vacancy left unfilled is to be carried over for a period up to three recruitment years. More specifically, the grievance in the petition is that a post meant for low vision candidates has been passed on to Locomotor Disabled persons which is not permissible.
The department issued an advisory on April 09, 2012 regarding the present recruitment of 55 Junior Engineers in the Water Supply and Sanitation Department, Punjab. Clause 7 bases selection on marks obtained in the written test. There was no prescribed plinth of percentage achieved in the test as a cut off for eligibility. The written test was conducted after the letter was issued on May 06, 2012. The documents of candidates were scrutinized on June 28, 2012 and the result was declared on July 20, 2012.
Having failed to secure appointment, the petitioner has approached this Court for issuance of a writ of mandamus to the respondents to offer him appointment in the category of Low Vision/Physically Disabled person.
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On summons issued on the petition, the State has put in appearance and has contested the case by filing a written statement. It is the stand of the State that the recruitment is based entirely on a written test which is outsourced to M/s C-DAC for conducting the test. The question paper was set by the Thapar University, Patiala. On perusal of the result, the competent authority decided that a candidate securing less than 25 marks out of the maximum 150 marks (i.e. 17%) shall not be selected. In this way, 5 candidates were rejected and the petitioner is one amongst them. The criterion adopted was made applicable to all categories of candidates across board. This crucial decision is dated July 20, 2012 which is the date when the result of the selection was publicly declared and its translated version in English is placed at R-1/T together with the vernacular. It is said that the decision was taken by the Chief Engineer (North) and the same was got approved from the Secretary Govt. of Punjab, Water Supply and Sanitation Department, Chandigarh. The Government points out from para.6 of the letter dated May 02, 1997 that reservation within the three categories is interchangeable and is not fixed as suggested by the petitioner. Para.6 deserves reproduction to understand its implications:-
"The reservation made for the categories of handicapped persons mentioned above is interchangeable amongst themselves. If candidates belonging to a category are not available or if the nature of vacancies in an office is such that a given category of persons cannot be employed". In view of the above said, the interchangeability has been implemented."
Interchangeability is restricted in its operation for want of an available candidate from any of the three sub-classifications for which reservation is prescribed amongst the eligible Physically Disabled persons. To the mind of this Court Para.6 would have no application in the face of MANJU 2014.11.12 10:39 I attest to the accuracy and authenticity of this document Chandigarh CWP No.17421 of 2012 -6- availability of a candidate who has otherwise qualified the selection test on merit. It is pointed out from para.10 of the Policy Circular that suitability of persons may be adjudged by the appointing authority. Therefore, the appointing authority is the final arbiter of suitability. For these reasons, the respondents say they were entitled in law to fix the quality on merit and place a cut off percentage of 17% below which no one could be appointed. The prescribed threshold of marks qualifying for selection and appointment has been universally and transparently applied to the petitioner and to other candidates as well in all the advertised reservations including in the general category without any discrimination. In this way, Prabhjot Singh at Sr. No.45 belonging to low vision category who had earned 39.25 marks out of 150 marks and was higher in merit but did not came forward to claim the appointment. Thus running roster point No.1171 was reserved for Handicapped Low vision category. In the DWL of handicapped candidates, Kashish Babbar, petitioner was indicated at Sr. No.1 being the next in line of merit in the Handicapped Low Vision category. The petitioner is followed by four other candidates in merit who too were disabled but not in the low vision category being in "Loco Motor disability". Prabhjot Singh was not considered as he did not appear at the time of verification of documents and was thus rightly ignored. The person next in merit to the petitioner was considered but on account of want of cut off marks his name was dropped. In this manner, the person next to the person below Kashish Babbar i.e. Lakhbir Singh was considered and appointed whose selection and appointment is challenged by the petitioner in this petition.
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The only question which arises for consideration of this Court in the present case is as to the legality of the decision of the Government in fixing 17% as a cut off percentage through the Office Note dated July 20, 2012 issued by the Chief Engineer (North), Punjab when such eligibility was not advertised nor existed at the time of advertisement or the holding of the test nor operated on the date of checking of the credentials/original documents on June 28, 2012. It is evident that the decision was taken on the day when the result was declared. It may be mentioned that seven candidates applied from the Handicapped category of which five were placed in the DWL. Both the persons appointed to service belong to the Locomotor disability category. Prabhjot Singh belongs to the same category as that of the petitioner though is higher in merit but was not offered appointment as he failed to turn up for verification of original documents.
A change in eligibility criteria has been changed by the respondents midway on the day when the result was declared on July 20, 2012 after the game had been played out. There is a judicially recognized principle that the rules of the game cannot be changed after the game has begun or has been played out. The advertisement issued on December 15, 2011 did not inform candidates that a cut off in marks would be applied to the selection for them to have set their own house in order and for the candidates to step up their preparedness to meet the written test from the beginning. In such circumstances prescribing a cut off percentage at 17% appears to have been imposed arbitrarily to keep the petitioner away from the zone of selection as he obtained 16.25% marks in the written test. The criterion laid down in the advertisement was a selection based on marks MANJU 2014.11.12 10:39 I attest to the accuracy and authenticity of this document Chandigarh CWP No.17421 of 2012 -8- obtained by the candidate in the written examination without prescribing a cut off in percentage qualifying for appointment. Accordingly, candidates were not informed timely of the change which was suddenly brought about on July 20, 2012 the day when the result was declared.
It is the contention of the learned counsel for the petitioner that in absence of any stipulation of minimum marks to be secured in the written examination then the rejection of the claim of the petitioner by imposing a cut off percentage is without any valid legal basis though it may have seemed good if the rule was laid down and introduced before the chase began for the public posts. Both the posts advertised in the Physically Handicapped category have unfortunately been offered to candidates suffering from Locomotor Disability alone which is not in conformity with either the spirit of Section 33 of the Act or the Policy Circular dated May 02, 1997 issued by the State Government in the Department of Social Security and Development of Women and Children (Social Security Branch), Punjab where the breakup of 3% reservation for Physically Handicapped persons in the State is to be distributed equally among the three categories of Disabled persons.
When both the persons appointed belong to the same classification i.e. Locomotor Disability then the prescribed percentage has been exceeded which the State Government had no apparent authority to do while suffering the restrictions contained in the Act operating the principle of equal distribution of the three recognized types of disability from amongst those it is intended to serve, provided the three sources are available. If they are less than three, then to distribute them equitably MANJU 2014.11.12 10:39 I attest to the accuracy and authenticity of this document Chandigarh CWP No.17421 of 2012 -9- amongst the available lot as have qualified. Government could either have carried forward the post occupied by merit position No.2 holder to a future recruitment or have instead and better still offered the same to the petitioner from the sub-classification of persons disabled by low vision. The interchangeability principle would apply only if there is non-availability of an eligible person. The eligibility test has become a moot issue in the present case for lack of prescription of merit in the advertisement or at the time of conducting the written test and holding interviews/verification of documents etc in proof of eligibility and academic qualifications. Reliance of the respondent-State on the interchangeability principle does not hold much water deserves to be rejected in this case since the petitioner cannot be said to have not qualified the written examination by a test, the qualifying marks for which were not prescribed in the advertisement. The terms and conditions announced in the advertisement were sacrosanct and not open to departure except by operation of rule. In the absence of a statutory rule of service as qualifying for appointment on a test the stand of the State is whimsical and arbitrary. It is not enough in this case to contend that the decision taken when the result was available to the appointing authority was uniformly applied to justify changing the rules of the game after it was played out. The very fact that the petitioner was placed in the DWL at No.1 position would go to show that till that stage his right to appointment was recognized but was taken away by the decision taken on July 20, 2012 to deny appointment to the petitioner. If the cut off marks are to be validated and upheld then the entire selection may have to be scrapped and started all over again so that candidates know at the outset what is MANJU 2014.11.12 10:39 I attest to the accuracy and authenticity of this document Chandigarh CWP No.17421 of 2012 -10- expected of them to secure appointment to the posts advertised. However, following such a course would lead to general chaos leaving the posts at least in the Physically Handicapped category unmanned due to setting aside of the entire selection in the category if not the entire selection running through the 55 posts, although there is no such challenge, although it is a legal principle not inapplicable to appreciate the entire picture emerging in the examination of this case on the cornerstone of relief which may be granted or denied. There may be persons aggrieved but as have not litigated to vindicate their grievances. Therefore, in order to contain the vexed issue it would appear to sub serve the cause of justice in a more holistic fashion if the petitioner is offered appointment to satisfy the mandate of 1% of reservation earmarked for the low vision category who have been bypassed and ignored and to achieve the ends of justice without disturbing the appointments already made. To achieve the golden equilibrium in its prescribed percentages and within the quota of reservation and classification it appears to this Court as an achievable and grantable relief to the petitioner without resulting in quashing of the selection and appointment of the 4th respondent which may not be a just thing to do and for no fault of the candidate. Therefore, it is for the Government to make repairs and amends and see how the petitioner and the 4th respondent can be accommodated together even if it means creating a supernumerary post or reducing one post/vacancy from future selection or from any backlog remaining in the Physically Handicapped category (Low Vision). This Court is conscious that appointment to public service is not a fundamental right and to be selected or placed at waiting list No.1 does not lead to an indefeasible right MANJU 2014.11.12 10:39 I attest to the accuracy and authenticity of this document Chandigarh CWP No.17421 of 2012 -11- to appointment. The concern of the Court has primarily been to denial of right of consideration to achieve the quotas earmarked, though not inflexibly, but by legitimate expectations of a person suffering from low vision and his right to compete on the strength of the test where he cannot be seen as failed or not a qualified candidate as when put at number 1 on the waiting list and the competitior in his class achieving higher merit having surrendered his right to appointment.
For the foregoing reasons and in the result, this petition is allowed and the action of the respondents in not offering appointment to the petitioner is declared unlawful and contrary to the spirit of Section 33 of the Act and the Policy Circular dated May 02, 1997. A certiorari is issued quashing the decision in denying the appointment by belatedly fixing a cut off point and as a consequence thereof, a writ of mandamus is issued to the respondents to consider offering a post of Junior Engineer (Civil) from the category of Physically Handicapped (Low Vision) to the petitioner.
Let this consideration take place within one month of the expiration of the period of limitation for calling this order in question in appeal.
(RAJIV NARAIN RAINA) 27.10.2014 JUDGE manju MANJU 2014.11.12 10:39 I attest to the accuracy and authenticity of this document Chandigarh