Punjab-Haryana High Court
Paramjit Kaur And Anr vs State Of Punjab And Anr on 18 November, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.2301 of 2014
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.2301 of 2014
Date of Decision: 18.11.2014
Paramjit Kaur and another ..... Petitioners
Versus
The State of Punjab and another ... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Amit Chopra, Advocate,
for the petitioners.
Mr. Anshul Gupta, Assistant Advocate General, Punjab.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
To cut the long litigative history short it would suffice to say that in a direct recruitment process initiated in 1996 to fill up vacant posts of DPE Masters/Mistresses, both the petitioners were selected on merit, one in the general category, the other in Sportsperson category. The entire selection was challenged by aggrieved persons by way of filing CWP No.18242 of 1997; Santokh Singh and others vs. State of Punjab and others in which a direction was issued on July 15, 1998 to the respondents to prepare a fresh select list after rectifying the mistakes discovered in the preparation of the faulty merit list. Accordingly, a fresh merit list was drawn on March 28, 2000 in compliance of the orders of the Court where the names of the petitioners were included. Some of the candidates whose names had been included in the first list but were dropped in the MANJU 2014.12.09 10:26 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2301 of 2014 -2- rectification exercise approached this Court in CWP No.11061 of 2000 and obtained ad interim stay orders directing the State to maintain a status quo on those earlier selected candidates whose names were not included in the revised merit list. The petition was admitted to regular hearing on July 12, 2002.
Likely to be affected by the ad interim orders passed in the aforesaid writ petition and on coming to know of them the petitioners approached this Court by presenting interlocutory applications bearing Civil Miscellaneous No.12491-92 of 2004 praying for impleading them as necessary parties under the provisions of Order 1 Rule 10 CPC. The applications were allowed. But the petitioners were not offered appointment as the matter was sub judice. In the meantime, nine writ petitions were filed by candidates who were similarly situated as the petitioners but were also not offered appointment as DPE Masters/Mistresses though their names were borne in the fresh select list yet again. These nine petitions were filed on different dates during the period of 2000 to 2012. In view of the ad interim stay granted by this Court, all the petitions were clubbed together to be heard and decided on May 07, 2013 with a direction to the 2nd respondent to consider the claim of the petitioners for appointment against the posts advertised and lying vacant. CWP No.11577 of 2000 and connected cases were disposed of on May 07, 2013 by a detailed judgment, the operative part of which reads as follows:-
"Keeping in view the above facts and circumstances, this Court is of the considered view that the request made by the petitioners is just and equitable and, therefore, the writ petitions deserve to be disposed of with directions to the Director Public Instructions (Secondary Education), MANJU Punjab, to consider the claims of the petitioners for appointment/continuing 2014.12.09 10:26 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2301 of 2014 -3- them in service against the 36 vacant posts. This direction and observation is being made in the light of the fact that the process of selection was, for all intents and purposes, finalized in 2000 when the revised merit list was prepared and published. All those candidates, who had any claim or interest against the posts advertised in the year 1994 and 1996, had approached this Court and had claimed their benefits. Even if a candidate now puts forth his claim for appointment on his merit, the said claim cannot be, at this belated stage, entertained because the delay itself would defeat the equity and right of a candidate. It has been held by the Hon'ble Supreme Court in S.S. Balu and another versus State of Kerala and others 2009 (2) SCC 479 that delay itself defeats equity and relief can be denied on the ground of delay alone even though similar relief stands granted to other similarly situated person, who approached the Court in time. Delay itself defeats the right which has happened in the present case as these candidates who have not pressed their claims till now had accepted the fait accompli and cannot be now allowed to put forth the claim over which they had been sleeping for years together i.e. for twelve years.
If the petitioners are found eligible, the appointment letters be issued within one month and notional consequential benefits be granted to them within a period of three months from the date of receipt of copy of this order. Petitioners in CWP No.11061 of 2000, 17782 of 2000, 178 of 2001 and 2449 of 2001 be allowed to continue in service.
The writ petitions are disposed of accordingly. This order shall not be treated as a precedent as the same has been passed in equity and in the peculiar facts and circumstances of these cases."
As a result of the above judgment and order passed on principles of equity, cases of the petitioners were considered and decided favourably but the respondent State took the defence in the case of the present petitioners that the benefit of appointment under the judgment cannot be given to such people who did not approach the Court in time against the selection process finalized in 2000 and the relief granted by Court stands confined to the petitioners alone in the batch of cases. It is not disputed before me that the orders passed by the learned Single Judge are final inter parties. It is further not disputed by the State that the 36 posts identified in MANJU 2014.12.09 10:26 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2301 of 2014 -4- the order dated May 07, 2013, if are filled by the total number of petitioners in the different writ petitions, some posts of DPE Masters/Mistresses would still be available to accomodate the claim of the petitioners in the event of success of this petition. After orders were pronounced in CWP No.11061 of 2000 in which the petitioners were the impleaded respondents an application was moved by them bearing CM No.9256 of 2013 claiming benefit of the judgment. The application preferred by the petitioners came up for hearing on July 26, 2013 when the following order was passed:-
"Counsel for the applicant-petitioners prays for withdrawal of the application with liberty to approach the respondents as the applicants were also respondents in the writ petition and are similarly placed and should be granted the benefit of judgment passed by this Court in Civil Writ Petition No.11577 of 2000 (Rajvinder Kaur and others Vs. State of Punjab and others) on 7.5.2013.
Dismissed as withdrawn with liberty as prayed for."
In order to avail the benefit of the judgment in the light of the order dated July 26, 2013 the petitioners made representations on August 23, 2013 and August 24, 2013 respectively to the Director of Public Instructions (S.E.), Punjab, Mohali for grant of benefit of the judgment of this Court in the aforesaid petitions. They pleads that no action was taken on the representations compelling the petitioners to approach this Court for relief.
Learned counsel for the petitioners submits that the petitioners had approached this Court without delay as they were affected by the interim order passed by this Court by reason of which they could not secure appointments and were forced to wait for the final outcome of the petition at a regular hearing. In the circumstances, it matters little that the petitioners MANJU 2014.12.09 10:26 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2301 of 2014 -5- were impleaded as respondents in CWP No.11061 of 2000 and did not file an independent petition just as some similarly situated ones had which are a few in the connected petitions. Assuming arguendo that the petition was dismissed or the interim stay vacated they would have immediately secured the benefit of employment as a direct consequence without having to seek a declaratory decree from Court in a separate proceeding. Persons similarly situated as the petitioners are approached this Court as late as in 2011 and 2012 have also been granted relief under orders of this Court in a batch of cases decided by a common judgment while the petitioners were party to the proceedings since the year 2004. The petitioners have a right to be treated at par with all those who were before the Court praying for relief nothwithstanding which side of the memo of parties they stood. It is no argument for the State to contend that the petitioners were respondents and not petitioners and therefore are not entitled to relief. Having approached this Court in time though in the shape of impleaded respondents praying for vacation of stay they form a homogeneous class with the petitioners before the Court and they cannot be discriminated against in the matter of grant of relief as that could violate the equal protection of Article 14 of the Constitution, equal protection as an identifiable group of persons similarly situated in all respects but sailing in the same ship with the rest on the hull and the prow and two on the stern.
In defence of the writ petition, the State has filed its reply by way of counter affidavit pleading that the petitioners were not petitioners in any of the writ petitions which were decided by the common judgment pronounced on July 26, 2013. Their right to appointment has been refuted MANJU 2014.12.09 10:26 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2301 of 2014 -6- for the reason that in the judgment it is recorded that the directions issued would not be treated as a precedent as the same have been passed on equity and in the peculiar facts and circumstances of the cases. Their claim for appointment cannot be entertained at this belated stage because of the delay on their part to press their claim. The State's defence is based on a technicality of procedure not on substance of law and legal rights seen only through the filter of a relief clause properly so called and thus the valuable benefit of the judgment dated May 07, 2013 cannot be extended to the petitioners. The reply by way of counter affidavit was filed on April 02, 2014. This Court by an interim order dated May 20, 2014 noticed in detail the contentions of the petitioners and required the State counsel to seek instructions from the department by adjourning the matter to July 15, 2014. An additional affidavit of the Assistant Director in the office of DPI (S.E.), Punjab has been filed in which they have reiterated the stand in the reply by way of counter affidavit that the cases of the petitioners cannot be considered at a belated stage. They rely on the following extract of the judgment:-
"Even if a candidate now puts forth his claim for appointment on his merit, the said claim cannot be, at this belated stage, entertained because the delay itself would defeat the equity and right of a candidate."
The defence in the reply by way of counter affidavit and the additional affidavit is to say the least is improper if not unconscionable and does not behove, the State being the first guardian of the right to equality amongst citizens. When fundamental rights are involved the State should normally desist from taking pleas of limitation, delay and the like to defeat MANJU 2014.12.09 10:26 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2301 of 2014 -7- just claims such as a right of consideration for appointment to public service. [...the claim for enforcement of the fundamental right of equal opportunity under Art. 16 is itself a fundamental right guaranteed under Article 32{Nt. also Art. 226} and the Court which has been assigned the role of a sentinel on the qui viva for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like; See R.S.Deodhar v. State of Maharashtra, AIR 1974 SC 259 (CB)]. The petitioners then cannot be ranked as persons who have put forth their claim at a belated stage while asking for their legal due. They were in Court in the year 2000 and remained sanguine that on failure of the petition, they would be offered appointments as the only obstacle in their way would stand removed which interim orders were protecting those persons whose names were not found in the rectification exercise but continued to occupy the posts under court orders which the petitioners could not fill till adjudication of their respective rights. The status quo order can only be read as a restraint on the Government in appointing the petitioners. That order stands vacated automatically in the final judgment. The obstacles in the way of the petitioners have been removed after 13 years.
The directions issued by this Court in the judgment dated May 07, 2013 are built on principles of equity, justice and good conscience and I see no reason why the petitioners are not entitled to relief for either of the two reasons that, firstly, they withdrew their application on July 26, 2013 while legitimately expecting that their cases would be treated by the respondents at par with those who were before the Court and not others as had not MANJU 2014.12.09 10:26 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2301 of 2014 -8- approached the Court even though they may be higher in merit. This Court granted the liberty to approach the respondents for relief and the order cannot be used as a stick by the State to deny relief. Secondly, relief is due to the petitioners not so much from the order dated July 26, 2013 but from the declaratory judgment rendered on May 07, 2013. I would also reject the defence of the State for another reason that it is far too technical an argument to accept in the special circumstances of the case and hold that petitioners are not entitled to relief which they always possessed ex debito justitiae. Their rights flow not so much from the judgment but from their merit determined by the recruiting agency, not once but twice over under court directions. The second affirming the first as far as the petitioners and their kind are concerned. Their rights are rooted in merit lists prepared by State and are not to be uprooted by Court orders. Their crystallized right to be offered appointment as per their merit was not under challenge. They came to Court as interveners to protect their rights and not to get them declared. Indeed, the petitioners are well protected by the maxim actus curiae neminum gravabit. But unfortunately the State has completely misread their rights only to deprive them of it by an improper shortcut trying to find the easiest way out so that two people don't get a job. But that is forgetting the Court exists and exists to come to the rescue of the forsaken, forsaken by time and tide.
The general rule that a respondent is not entitled to relief is a good one in appropriate cases and is a practice of the Court but should not be viewed in this case in its strict technical sense to non-suit him and deprive him of his rights accrued prior to the case which he has come to do no more MANJU 2014.12.09 10:26 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2301 of 2014 -9- than watch the proceedings from the ring view. The petitioners took the appropriate legal steps as was advised them and for good measure to enter the proceedings at the earliest opportunity they found to get themselves impleaded as a party to the petition which meant that they came to be heard not on the claimed relief but to guard themselves against any adverse orders in case passed against their interests which rights to appointment would otherwise automatically flow on a failure of the writ petitions. All they came to say was kindly vacate the status quo order.
When this Court examined the additional affidavit filed by the DPI before it admitting that all the petitioners in these petition can be considered for appointment against the 36 available posts and can be issued appointment letters accordingly because no other candidate has approached the Court after the last pending writ claiming right to appointment except the petitioners then the thought occured why deprive the petitioners of their just dues and the State in its statement was doing no favour especially when the Court did not hold that the review exercise suffered from any infirmities as were discovered in the first round of litigation. In fact, it has been recorded in the judgment that Mr. Kamal Kumar, Director Public Instructions (Secondary Education), Punjab made a statement in Court that the contentions of the petitioners were acceptable to the government provided no further claim is put forth by any other candidate who may be higher in merit than the petitioners otherwise the respondents would be put in a difficult situation. When this Court observed that "all those candidates, who had any claim or interest against the posts advertised in the year 1994 and 1996, had approached this Court and had claimed their benefits" the MANJU 2014.12.09 10:26 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2301 of 2014 -10- intention of the Court is clear, meaning thereby all those candidates who had 'approached' this Court would definitely account for the petitioners who had 'approached' this Court through an application in the present writ petition where the interim order was passed. Their right to appointment cannot be extinguished by misinterpretation of the judgment and the only fallout of the order dated July 26, 2013 where the petitioners had withdrawn the application with liberty to approach the respondents for relief meant that their cases had to be decided independently by the appointing authority but based on the principles laid down in the judgment by counting them among those who "had approached this Court and had claimed their benefits" by a necessary implication. Their rights remained active throughout in CM Nos.12491-92 of 2004 which were ultimately withdrawn through CM No.9256 of 2013 after the judgment was rendered. In the main, I hold the petitioners are entitled to the relief claimed. Denying them this would result in unfair discrimination. I fail to see a reasonable classification between those for whom the favourable statement was made by functionraies of State upon proper instructions and the petitioners only because they were impleaded respondents and not petitioners before the Court for the many reasons recorded above.
For the foregoing reasons, this petition is allowed with costs of litigation to be assessed by the registry.
In the absence of an impugned order, the stand taken by the State in the reply by way of counter affidavit dated April 02, 2014 and in the additional affidavit dated July 15, 2014 to deprive the petitioners of relif due is quashed by issuing a writ of certiorari on the assumption that it is part MANJU 2014.12.09 10:26 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2301 of 2014 -11- of noting file on the Government file which also is declared bad in law. The same will not be read against them. As a result, a writ of mandamus is issued to the respondent State to treat the petitioners at par with the petitioners in CWP No.11577 of 2000 and in the connected writ petitions and grant both of them similar relief.
As a postscript I would remind the State that it has a very special place in litigation before this Court in spiralling arrears of cases choking the dockets of Benches. Honest and socially just decisions made by bureaucrats on rights such as in this case taken after reflection and due application of mind in conformity with service law can reduce a great deal of litigation or make it much easier to decide. The State had faltered in the beginning by drawing up a faulty merit list of teachers which has cost so much judicial time and money yet those who erred for profit or loss remain unanswerable. I would remind the State functionaries of the words of Krishna Iyer, J., when his Lordship adorned the Bench of the Kerala High Court, in P.P. Abu Backer v. The Union of India, A.I.R. 1972 Ker. 103 at p.107 para 5.
"The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for, the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which MANJU 2014.12.09 10:26 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2301 of 2014 -12- move, private parties to fight in court. The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957. This second appeal strikes me as an instance of disregard of that policy."
(RAJIV NARAIN RAINA) 18.11.2014 JUDGE manju MANJU 2014.12.09 10:26 I attest to the accuracy and authenticity of this document High Court Chandigarh