Punjab-Haryana High Court
Karan Jagdish Kaur vs Punjab School Education Board And Ors. on 1 July, 1996
Equivalent citations: (1998)IILLJ186P&H, (1996)114PLR403
Author: M.L. Singhal
Bench: M.L. Singhal
ORDER N.K. Sodhi, J.
1. This Order will dispose of three writ petitions 10575, 14658 and 18271 of 1995 challenging the appointment of Smt. Sukhwinder Kaur (Respondent 3) as Legal Advisor to the Punjab School Education Board, Mohali (for short, the Board) on the ground that it has been made on extraneous consideration violating the provisions of the regulations governing the appointment. To dispose of the common questions of law and fact arising in these petitions, facts have been taken from CWP 10575 of 1995.
2. Finance Committee of the Board in its meeting held on March 22, 1995 recommended up gradation of the vacant post of the Legal Advisor in the pay scale of Rs. 2,000-3500 to the pay scale of Rs. 2400-4000 plus Rs. 200/- as special pay. This Committee also suggested appointment to the aforesaid post either by way of direct recruitment or by way of deputation and the following qualifications were recommended:-
i) Law Graduate.
ii) Matriculation with Punjabi.
iii) Professional experience as an Advocate in the High Court for three years.
iv) Age between 18 to 35 years.
In addition to these essential qualifications, desirable qualifications recommended were also indicated namely, LL.M. or other higher qualifications and it was further suggested that preference should be given to those who had working experience as Retainer/Legal Advisor in a Corporation/Board. The Board in its meeting held on March 30, 1995 approved the recommendations of the Finance Committee in its entirety and the post of Legal Adviser was upgraded. By an advertisement issued in the Daily Tribune dated May 19, 1995, the Board invited applications from eligible persons to fill up the post of Legal Advisor. The qualifications as suggested by the Finance Committee and referred to above were mentioned in the advertisement. Last date for the receipt of applications was May 31, 1995. Petitioner who was working as Assistant Attorney Grade-II in the pay scale of Rs. 2000-3500/- in the office of the Board immediately on the issuance of the advertisement is said to have represented claiming that the post should not be filled by direct recruitment and that she had the preemptive right to appointment by way of promotion as she was working against an ex-cadre post which had no channel of promotion and also because she was fully eligible for the same. When she did not receive any response to her representation, she submitted some more representations on the same lines and also applied for the post. A selection committee consisting of the Chairman and Vice Chairman of the Board, Shri S.S.Dawra, Education Secretary, Punjab Government, Chandigarh and Dr. Gurpal Singh, Senior Professor, Law Department, Punjabi University, Patiala who participated as an Expert was constituted to interview the candidates. The interviews were held on June 28, 1995 atll A.M. in the office of the Chairman of the Board. The Committee unanimously selected Respondent 3 and placed one Shri Rajesh Khokhar son of Shri Nand Lal Khokhar on the waiting list. The grievance of the petitioner is that she was not called for the interview even though she was fully qualified for the post in question and that she was more meritorious than Respondent 3. The appointment of Respondent 3 has also been challenged on the ground that the same has been made on extraneous considerations as she is the wife of one Shri D.S. Saroya who at the relevant time was Officer on Special Duty attached to the then Chief Minister of Punjab S. Beant Singh and that it is because of the influence exercised by the Chief Minister that Respondent 3 has been selected.
3. In the written statement filed on behalf of the respondents, the allegations made in the writ petition have been controverted. It is placed that soon after the post of Legal Advisor was upgraded, the petitioner's father S.Basant Singh Khalsa, Ex- Education Minister, Punjab repeatedly spoke to the Chairman of the Board as also to its Secretary asking them to make provision for filling up the post only by way of promotion from the post of Assistant Attorney Grade-II which is the solitary post in the Board and against which the petitioner was working. It is further pleaded that the suggestion as made by the father of the petitioner was declined by the Chairman as also by the Secretary in view of the decision of the Board. It is also stated that father of the petitioner repeatedly threatened the Chairman of the Board as also its Secretary and wanted them to offer the post to the petitioner by way of promotion and in case they did not promote the petitioner, he, (father of the petitioner) on assuming political position would deal with the Chairman. It was also pleaded by way of preliminary objections that since it has been alleged that Respondent 3 had been appointed at the behest and on the asking of the then Chief Minister of Punjab, the latter was not impleaded as a party though he was alive when the writ petition was filed. On merits, it has been stated that the petitioner represented that the post be filled up by promotion and that her representation was duly considered but the Board did not find any justification to change its decision for making the appointment by direct recruit ment and through advertisement. The peti tioner too had applied for the post and was one of the candidates along with many others. All the applicants were sent a notice to appear for 5 the interview on June 28, 1995 at 11 A.M. No tices are stated to have been sent under certifi cate of posting to all the candidates including the petitioner and it is averred that the petitioner did not choose to appear for the interview though she was present at the venue when her name was called. It is further stated that had she appeared, she would have been considered on her own merits. The allegations that Respondent 3 as been selected at the behest of the then Chief Minister of Punjab has been specifically denied and the other allegations made in the petition have also been controverted. The Chairman of the Board has also filed a short affidavit denying all the allegations made in the petition. He has reaffirmed the contents of the written statement filed by Respondent 1. He has specifically stated that what is said in paragraphs 22 and 3 of the preliminary submissions and the similar submissions made in the preliminary objection 2 1 are correct. It may be mentioned that these submissions pertain to the averments regarding the Chairman being threatened by the father of the petitioner as referred to in the earlier part of the order.
4. We have heard counsel for the parties.
5. As regards the allegations of mala fides against the then Chief Minister of Punjab are concerned, we are not inclined to accept any of those contentions as the Chief Minister was not made a party to the writ petition which was filed when he was still alive. Had he been impleaded as a respondent, he would have had an opportunity to reply to the allegations made against him. Similarly, Shri D.S. Saroya who is the husband of Respondent 3 and is said to be a close relation of the then Chief Minister of Punjab too has not been impleaded as a party though Respondent 3 has categorically stated that her husband was not in any way related to the then Chief Minister of Punjab. So far as the representation allegedly made by the petitioner on May 29, 1995 is concerned, the respondents have categorically stated that the same was never received in the office of the Board and, therefore, it does not find mention in the receipt register in which the earlier two representations of the petitioner find mention and that the same has been fabricated by the petitioner for the purpose of this petition. In this representation the petitioner is said to have informed the Secretary of the Board that the post of Legal Advisor had been created to accommodate Respondent 3 who is the wife of Shri D.S.Saroya, Officer on Special Duty to the then Chief Minister, Punjab. It is not brone out from the record that the petitioner had really represented as she now wants this Court to believe but be that as it may, this averment is not of much significance in the light of the other circumstances of the case. Learned counsel for the respondents, on the other hand, drew out attention to the averments made by Respondent 1 in paragraphs 22 and 3 of the preliminary submissions in which it has been stated that father of the petitioner had been threatening the Chairman and the Secretary of the Board with dire consequences if they did not promote the petitioner to the post of Legal Advisor. We need not go into these allegations nor is it necessary for us to examine them. The respondents have emphatically stated that Respondent 3 had been selected on merit by the Selection Committee consisting of senior officers of the Board and the Secretary, Education, Punjab Government. It is further stated that the Selection Committee had on it an Expert as well who was a Senior Professor in the Department of Laws, Punjabi University, Patiala. Since the Committee selected Respondent 3 on merit after interviewing all the candidates, this Court in the exercise of its extraordinary jurisdiction cannot sit in judgment over the decision of the Selection Committee.
6. Mr. Chauhan, learned counsel for the petitioner then contended that the respondent-Board did not follow the proper procedure as prescribed by its Regulations while appointing Respondent 3 as the Legal Advisor. He referred to the provisions of Regulation 8(1) of the Punjab School Education Board (Employee Service) Regulations, 1988 which read as under:-
"8(1) The appointment to a post in the service except to the post of Secretary shall be made on the recommendation of the committee mentioned in column 2 by the authorities indicated in column 3 below:-1 2 3 (1)
Post in the scale of pay the minimum of which is Rs.1200/- or less Junior Services Selection Committee Secretary (2) Posts in the scale of pay the minimum of which is more than Rs. 1200/- but not less than Rs. 2000/-
Senior Services Selection Committee Chairman (3) Posts in the scale of pay the minimum of which is more than Rs.2000/-
Establishment Committee Chairman Provided that the recommendation of the Establishment Committee shall be implemented after the approval of the Board."
Admittedly, the post of the Legal Advisor carries a pay seal the minimum of which is more than Rs. 2,000/-. The appointment to the post had to be made by the Chairman on the recommendations of the Establishment Committee. The Proviso to Regulation 8(1) states that the recommendation of the Establishment Committee shall be implemented after the approval of the Board. The argument of the learned counsel for the petitioner is that even before the recommendation of the Establishment Committee was approved by the Board the letter of appointment2 was issued to Respondent 3. This is of course so, but in our opinion it could at best be as an irregularity which does not vitiate the appointment. It is common case between the parties that the recommendation of that committee was approved by the Board subsequently. Had the recommendations of the Establishment Committee not been approved by the Board then of course the appointment could not have been sustained but that is not the case here. The proviso-to Regulation 8(1) is only directory and the appointment made cannot be vitiated merely because the approval was granted subsequently. This being so, the appointment of Respondent 3 cannot be held to be in contravention of the provisions of Regulation 8(1).
7. The next ground on which the appointment of Respondent 3 was challenged is mat she was not eligible in terms of the qualifications prescribed in the advertisement. It is submitted that she did possess three years experience as an Advocate on the last date of receipt of applications. The argument is that Respondent 3 who was enrolled as an Advocate in March, 1992 joined the LL.M. Part-I course in Punjabi University, Patiala as a regular student and, therefore, she did not practice thereafter and for this reason it is contended that she did not possess three years experience. On the other hand, what is urged by the respondents is that in terms of the instructions issued by the Bar Council of India practising Advocates can join the LL.M. course without having to suspend their practice and this decision is being followed by the Bar Council of Punjab and Haryana. In our opinion, the argument of the learned counsel for the petitioner deserves to be rejected. When a practising Advocate joins the LL.M. course as a regular student, he is not required to suspend his practice and can simultaneously continue with the same. Practice does not mean appearing in Courts only. One can even practice by making himself available for consultation and by giving legal opinion so long as he/she remains on the rolls as an Advocate. Admittedly, Respondent 3 was enrolled as an Advocate in March, 1992 and was continuing to possess the licence 'till she was selected. Thus, she had to her credit more than three years' experience as an Advocate and was, therefore, eligible. Moreover, Respondent 3 was a Retainer to the Board on a monthly honorarium for giving legal advice from time to tune and she continued to be Retainer while she was pursuing the LL.M. course. She was, therefore, practising even during the period when she was studying for the LL.M. course. This ground of attack is, therefore, without any merit and is repelled.
8. Mr. Chauhan, learned counsel for the petitioner next contended that the petitioner was not called for interview held on June 28, 1995 and, therefore, she was deprived of her right to be considered for the advertised post. This contention too is without any merit and deserves to \ be rejected. The respondents have shown that a notice for the interview was sent to all the candidates including the petitioner under certificate of posting. If the other applicants including the petitioners in the two connected writ petitions 1 had received the information which was sent to them under certificate of posting, there is no reason why the petitioner did not receive the same. The Secretary of the Board has stated on affidavit before us that the petitioner was even; present at the venue when the interviews were held and when her name was called she deliberately did not appear. In this view of the matter, the petitioner is herself to blame and she cannot make a grievance of her non-appearance.; Moreover, Respondent 3 was not only the candidate but a large number of candidates had been interviewed by the Selection Committee on that date. The petitioner having chosen not to appear for the interview despite having been; called cannot make a grievance of her own default. She is an employee of the Board working in the same premises and it is highly incredible that she did not know that the Selection Committee was holding interviews and more so when she was present on duty on the date of interview .
9. Lastly, it was urged that the Board had not laid down any criteria for assessing the merit of the candidates. We fail to understand what criteria was required to be laid down for appointing a Legal Advisor. There was no written test for the post and the candidates were to be selected on the basis of their merit as judged by the Selection Committee at the time of interview. The Selection Committee consisted Of Senior Officers of the Board and the Secretary, Education, Punjab Government. Not only this, there was an Expert on the committee who was a Senior Professor in the Department of Laws, Punjabi University, Patiala. Such being the constitution of the Committee the contention deserves to be rejected. Obviously, the Committee selected the best from amongst the available who had applied for the post and this Court cannot, as observed earlier, in the very nature of things substitute its own opinion for that of the Committee.
10. In the result, there is no merit in the writ petitions which stand dismissed leaving the parties to bear their own costs.