Punjab-Haryana High Court
Jarnail Singh Etc vs State Of Punjab Etc on 13 September, 2013
Bench: Hemant Gupta, Fateh Deep Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 13.09.2013
CWP No.4277 of 2000
Jarnail Singh etc. ...Petitioners
Versus
State of Punjab etc. ...Respondents
Present: Mr. G.S.Bal, Advocate, for the petitioners.
Mr. H.S.Brar, Addl. AG, Punjab, for respondent Nos.1 & 2.
Mr. Ramesh Sharma, Advocate, for
Mr. Ashok Bhardwaj, Advocate, for respondent No.3.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
HEMANT GUPTA, J.
Challenge in the present writ petition is to an action of the respondents in not recommending the names of the petitioners for entry in the High Court Register for appointment as members of Punjab Civil Services (Judicial Branch) in pursuance of advertisement issued in the year 1998. CWP No.10220 of 2001 preferred by Surinder Kumari & Parveen Bali is also pending before this Court claiming appointment on the basis of Examinations held in pursuance of the Advertisements issued in the years 1998 & 1999.
The Punjab Civil Services (Judicial Branch) Rules, 1951 (for short 'the Rules') as amended on 04.06.1991 provides that no candidate shall be called for viva-voce unless he obtains at least 50% qualifying marks in the aggregate of all the written papers, it being 45% for the candidates belonging Kumar Vimal to Scheduled Castes, Scheduled Tribes and Backward Classes. The petitioners 2013.09.17 10:21 I attest to the accuracy and integrity of this document Chandigarh CWP No.4277 of 2000 2 in these petitions are the candidates belonging to reserved category and were called for viva voce, having obtained 45% marks in the written examinations. The grievance of the petitioners is that in terms of Rule 7 of Part-C of the aforesaid Rules, the petitioners were called for viva-voce test, but their names have not been recommended for appointment for the reason that the petitioners have not obtained 50% marks in the aggregate of the written papers and viva-voce. The claim of the petitioners is based upon a Division Bench judgment of this Court in Rajinder Pal Singh Vs. State of Haryana etc. 2003 (4) SCT 677, wherein in respect of the candidates governed by Punjab Civil Services (Judicial Branch) Rules, 1951 applicable to the State of Haryana, it has been held that the High Court cannot fix higher standards as a condition for qualification for entry of the names in the Register for appointment unless the State Government agrees to such process even without amending the Rules. The relevant extract of the judgment reads as under:
"31. Analytical examination of the provisions contained in the rules and judgments afore-cited leave no doubt in our mind that it was not mandatory for the concerned quarters to amend the rules before enforcing the clause contained in the letter of the High Court dated 05.05.2000 or 20.07.2000. It was only a parameter for the purposes of appointment of plea of higher merit. The law is consistent in this regard that higher marks than the eligibility conditions can always be introduced by the competent authority for the purposes of maintenances of higher standards in service and in furtherance to its policy decision taken in the interest of administrative excellence. We have already held that the letter of the High Court does not lack any inherent jurisdiction or competence. The infirmity has resulted from the inaction of the Government in not accepting the suggestion of the High Court and implementing the same as policy. In fact, they raise specific objections to the implementation of contents of the said letter and it was too late in the day before the rules were amended by the State. The lack of unanimity of view is the reason which tilts the law in favour of the petitioners and not lack of legislative amendments in the relevant rules."Kumar Vimal 2013.09.17 10:21 I attest to the accuracy and integrity of this document Chandigarh CWP No.4277 of 2000 3
Considering the argument that the letters dated 05.05.2000 & 20.07.2000 issued by the High Court are otherwise permissible in law, then the same are to take effect prospectively and cannot be adversely affect the selections made in the years 1999 and 2000, the Court held to the following effect:
"34. ....In view of the above pleadings of the parties and the stand taken by the Government, we are constrained to observe that unanimity of the institutional components as contemplated in Article 234 of the Constitution intended not to enforce this condition at least for those batches. After the amendment of the Rules all these questions are rendered ineffective. We may also refer to the Division Benches judgments of this Court in the cases of Babita Rani Vs. State of Haryana and others 2002 (4) SCT 670 and Er. Kulbir Singh Vs. State of Punjab 2002 (1) SCT 615, where it was held that unamended rules would apply for filling up the vacancies particularly in the cases where the process of selection has commenced. Thus, we are of the view that the petitioners in the present case would be governed by the Rules without enforcement of the conditions stipulated in the impugned letter.
xxx xxx xxx
36. High standard of performance of excellence in discharge of its functioning are the twin essential for proper administration of justice. To achieve this object, the constitutional authorities enumerated under Article 234 of the Constitution essentially must arrive at a unanimous view in regard to rationale behind and proper enforcement of the rules for competitive selection and appointment to the judicial services of the State. We have expressly held that the view of the High Court requires to be considered by the Government and the Commission objectively and with precedence. Prescription of high percentage to maintain excellence in service no way violates the right of equality or equal opportunity for appointment. In view of the judgment of the Hon'ble Supreme Court in the case of State of Bihar Vs. Bal Mukand Sah 2000 (3) SCT 459, it is not necessary for us to reemphasis the role of the High Court and the requirement on the part of the State to adopt the suggestion made by the High Court. Purposeful consultation must essentially be result oriented, object achieving and its decision and conclusion must be given effect to with utmost expedition. That alone would be in the interest of proper administration of justice.Kumar Vimal 2013.09.17 10:21 I attest to the accuracy and integrity of this document Chandigarh CWP No.4277 of 2000 4
37. In order to encapsulate conclusions of our above discussion, it is necessary to revert back to the contentions raised by the parties before us. We are of the considered view that the letter dated 5th May, 2000 (20th July, 2000) neither lacked jurisdiction nor competence on the part of the High Court. It was intended to provide higher standard to achieve excellence in State Judicial Services. It was not necessary that the rules ought to have been amended prior to the enforcement of this rule."
The petitioners also rely upon the orders passed in CWP No.5608 of 2002 titled "Joginder Singh Gill Vs. State of Punjab & others"
decided on 05.12.2003 and in CWP No.13486 of 1999 titled "Amrish Kumar Jain Vs. The High Court of Punjab and Haryana at Chandigarh & another"
decided on 05.12.2003.
The stand of the High Court is that an administrative decision was taken on 15.10.1998 that the candidates, whose names were liable to be entered in the Register, must secure 50% marks in the aggregate of the written papers or the viva-voce unless there existed very compelling reasons to lower that standard. Since the petitioners have not secured 50% marks of the aggregate in the written papers and viva-voce, therefore, their names have not been recommended for entry in the High Court Register. It is further averred that it is within the purview of the High Court to lay down higher standards than above those laid down in the Rules for appointment to the Punjab Civil Services (Judicial Branch). The High Court has arrived at a policy decision with a conscience application of mind to lay down certain standards to be achieved by the candidates prior to their appointment.
It is also pointed out that the selections process for the years 1998, 1999, 2000 & 2001 of Punjab Civil Services (Judicial Branch) were subject matter of 'Sidhu Scam'. All candidates, who have competed in the examinations conducted in the aforesaid years, were given a special chance to Kumar Vimal 2013.09.17 10:21 I attest to the accuracy and integrity of this document Chandigarh CWP No.4277 of 2000 5 appear in the examination held in the year 2003. The petitioners namely Surinder Kumari & Parveen Bali in CWP No.10220 of 2001 appeared in the said examination along with other candidates and could not be selected.
It is also averred that there is unanimity on the issue between the State and the High Court qua the fact that a candidate, who had secured less than 50% marks in the aggregate of the written papers and the viva-voce may not be appointed to the Punjab Civil Services (Judicial Branch). The High Court vide letter dated 08.11.1998 conveyed to the Government of Punjab that a candidate, who has secured less than 50% marks in aggregate of written and viva voce may not be appointed to the Punjab Civil Services (Judicial Branch) unless there are very compelling reasons to lower the standard. Reliance is placed upon communication dated 03.12.1999 addressed by the Government of Punjab, Department of Home Affairs & Justice to the Registrar of this Court, wherein the names of 18 candidates were entered in the High Court Register i.e. the candidates, who have secured more than 50% marks in response to the communication dated 08.11.1998. It is, thus, argued that there was unanimity between the High Court and the Government of Punjab in respect of condition of obtaining 50% marks in aggregate of written examination and viva voce before name of a candidate is entered into the High Court Register.
The relevant Rule 7 of the Punjab Civil Services (Judicial Branch) Rules, 1951 contemplating marks required for appearing in viva-voce reads as under:
"7. (1) No candidate shall be credited with any marks in any paper unless he obtains at least thirty three per cent marks in it.Kumar Vimal 2013.09.17 10:21 I attest to the accuracy and integrity of this document Chandigarh CWP No.4277 of 2000 6
(2) No candidate shall be called for the Viva-voce test unless he obtains at least fifty per cent qualifying marks in the aggregate of all the written papers;
Provided that the candidates belonging to Scheduled Castes, Scheduled Tribes and Backward Classes categories shall be called for the viva-voce test if they obtain forty five per cent qualifying marks in the aggregate of all the written papers.
(3) The minimum qualifying marks in the language paper Punjabi (Gurmukhi Script) shall be thirty-three per cent. The standard of language paper will be that of Matriculation Examination of the Punjab School Education Board or its equivalent."
We find that Rajinder Pal Singh's case (supra) pertains to State of Haryana, wherein Rule 8 was amended on 07.04.2003 to the effect that no candidate shall be considered to have qualified in the examination unless he obtains at least 50% marks in the aggregate of all papers including viva voce test.
In the present case pertaining to State of Punjab, there is no reference to any communication addressed to the State of Haryana to the effect that the candidate must obtain 50% marks in the aggregate of written examination and viva voce in pursuance of Full Court decision dated 15.10.1998, which led to the Judgment in Rajinder Pal Singh's case (supra). However, the High Court has communicated to the Punjab Government on 08.11.1998 that a candidate, who has not obtained 50% marks in the aggregate of the written papers and viva voce may not be appointed to the Punjab Civil Services (Judicial Branch) unless there existed very compelling reasons to lower the standard. Thus, the Punjab Government was informed of the decision of this Court, which was given effect by the State inasmuch in subsequent selections none of the candidate, who has obtained less than 50% marks, was not recommended for appointment. In view thereof, we find that Kumar Vimal 2013.09.17 10:21 I attest to the accuracy and integrity of this document Chandigarh CWP No.4277 of 2000 7 the following questions need to be decided by the Larger Bench for an authoritative and conclusive decision on the issues arising time & again before this Court:
1. Whether in view of communication dated 08.11.1998, a candidate can seek appointment to the State Judicial Services even if he/she has not obtained 50% marks in aggregate of the written papers and viva voce?
2. Whether the State Government has impliedly accepted the proposal of the High Court vide communication dated 08.11.1998, when it had not recommended the name of the candidates for entry in the High Court Register for appointment in any of the subsequent selection processes?
We also find that the selections made in the years 1998, 1999, 2000 & 2001 including the selection in question became subject matter of controversy on account of allegations of large scale manipulations commonly known as "Sidhu Scam". The services of the candidates, who were appointed in the years in question, were terminated. A Full Bench of this Court upheld the termination orders, but the matter was remanded back to this court vide judgment of Supreme Court in Inderpreet Singh Kahlon & others Vs. State of Punjab & others 2006 (11) SCC 356. A Committee was constituted in terms of the said order passed by the Supreme Court to find out the tainted candidates. Such Committee by majority concluded that the entire selection process is tainted. Such recommendations were set aside by Full Bench of this Court in CWP No.1626 of 2003 titled "Sirandip Singh Panag Vs. State of Punjab & others" decided on 27.05.2008. The petitioners seek appointment in terms of Full Bench judgment of this Court in Sirandip Singh Panag's case (supra).
Kumar Vimal 2013.09.17 10:21 I attest to the accuracy and integrity of this document Chandigarh CWP No.4277 of 2000 8
The argument that the petitioners are entitled to appointment on the basis of the Full Bench Judgment of this Court in "Sirandip Singh Panag's case (Supra) is also requires to be examined by the larger Bench in view of the observation of the Supreme Court in an appeal against the said judgment reported as High Court of Punjab & Haryana at Chandigarh Vs. State of Punjab & others 2010 (11) SCC 684. The Supreme Court has not approved the Full Bench judgment of this court, but passed an order with an intention to work out the equities and to do complete justice. The Supreme Court observed as under:
"29. However, it should not be construed that our judgment is giving seal of approval of the judgment of Full Bench of Punjab and Haryana High Court, but with an intention to work out the equities and to do complete justice between the parties and in view of the earlier judgment of this Court reported in (2006) 11 SCC 356 that tainted candidates be separated from untainted, meaning thereby this Court did not accept the submission that it was not practically possible to do so; and further this court had taken note of re-selection held in 2004 in paragraph 92 of the judgment, but held that the effect thereof would be subject to this case, this is the only via-media, through which the respondents could also be granted relief as it could not be established that even otherwise, they would have been declared as unsuccessful candidates. Precisely, that is the reason we have moulded the reliefs granted to the respondents by the High Court as our order is not likely to affect seniority of any of the judicial officers, who had already been working prior to the respondents. We are conscious of the fact that by this procedure, there is no likelihood of any off shoots of the said order and hopefully the whole controversy triggered in the year 1998, would stand settled for all times to come."
We find that the following questions also need to be examined by the larger Bench in view of the order passed by the Supreme Court under Article 142 of the Constitution:
3. Whether the findings recorded by the Full Bench of this Court in Sirandip Singh Panag's case (supra) are binding on this Court in view of the order passed by the Supreme Kumar Vimal 2013.09.17 10:21 I attest to the accuracy and integrity of this document Chandigarh CWP No.4277 of 2000 9 Court in High Court of Punjab & Haryana at Chandigarh Vs. State of Punjab & others 2010 (11) SCC 684?
4. If the judgment of the Full Bench in Sirandip Singh Panag's case (supra) is not binding, whether this Court can examine the question of tainted candidates in terms of earlier direction of the Supreme Court in Inderpreet Singh Kahlon's case (supra)?
5. If this Court cannot re-examine the questions, whether this Court in any case can issue directions in terms of the order passed by the Supreme Court in High Court of Punjab & Haryana at Chandigarh case (supra) under Article 142 of the Constitution?
Thus, we order that the papers be placed before the Hon'ble Chief Justice to constitute a Larger Bench to decide the above said questions.
The counsel for the parties in CWP No.10220 of 2001 are at liberty to address arguments on the questions framed at the time of hearing by the Larger Bench.
(HEMANT GUPTA)
JUDGE
13.09.2013 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2013.09.17 10:21
I attest to the accuracy and
integrity of this document
Chandigarh