Punjab-Haryana High Court
Vipin Malhotra And Others vs Dr. (Mrs) Sangeeta And Others on 5 November, 2012
Author: Rakesh Kumar Jain
Bench: A.K.Sikri, Rakesh Kumar Jain
LPA No.1353 of 2010 [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No.1353 of 2010
Date of decision:05 .11.2012
Vipin Malhotra and others ...Appellants
Vs.
Dr. (Mrs) Sangeeta and others ...Respondents
CORAM: Hon'ble Mr. Justice A.K.Sikri, Chief Justice
Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Rajiv Atma Ram, Senior Advocate, with
Mr. Rajinder Singh Mann, Advocate, and
Mr. Puneet Gupta, Advocate.
Mr. Chetan Mittal, Senior Advocate, with
Mr. Kunal Mulwani, Advocate.
Mr. R.D.Bawa, Advocate.
Mr. G.S.Jaswal, Advocate.
Mr. D.S.Patwalia, Advocate, with
Mr. Salil Sabhlok, Advocate.
Mr. Sarjit Singh, Senior Advocate, with
Mr. Vikas Singh, Advocate.
*****
Rakesh Kumar Jain, J.
By way of this order, we shall dispose of LPA Nos.1353, 1354, 1358, 1359 and 1362 of 2010 in which common order of the learned Single Judge dated 21.09.2010 has been assailed. Facts have been taken from LPA No.1353 of 2010.
In brief, applications were invited to fill up the posts of Ayurvedic Medical Officers in Municipal Corporation, Jalandhar by way of LPA No.1353 of 2010 [2] ***** advertisement in newspaper dated 02.12.2001 stating specifically that "interview for the said posts will be held on 13.12.2001 in the office of Commissioner, Municipal Corporation, Jalandhar at 10.00 a.m. No separate card will be sent to the candidate for interview. They will give their applications for the posts of Ayurvedic Medical Officer and will present at their own cost for interview on the above said date, time and place. If any candidate has already given application for the said post, then the same will not be considered and they will have to give application afresh".
The selection was proceeded by "walk-in-interview" held on 13.12.2001 and 16.12.2001 by the duly constituted Selection Committee, comprising of District Welfare Officer, Principal of Dayanand Ayurvedic Medical College, Jalandhar, one representative of the rank of Joint Secretary to the Government of Punjab, Additional Commissioner of the Corporation being the Chairman and the Health Officer of the Corporation as the Subject Expert. Admittedly, no criteria was laid down in the advertisement.
Pursuant to the advertisement, 314 applications were received on 13.12.2001 against the general category and 21 for S.C. Category. 148 candidates appeared under general category and 16 under S.C. Category. Appellant Nos.1 to 4 in LPA No.1353 of 2010, who had already rendered 11 years of unblemished service, were selected and the result was displayed on 24.12.2001, on the notice board of the Municipal Corporation, Jalandhar.
The selection of the appellants, referred to above, was LPA No.1353 of 2010 [3] ***** challenged by the unsuccessful candidates, inter alia, on the ground that no criteria was followed at the time of selection and on the allegations of favourtism and malice.
Insofar as the allegation of mala fide is concerned, it has been specifically rejected by the learned Single Judge by observing as under:-
"This contention of the learned counsel for the petitioner cannot be accepted, as except for the wild allegations there is no other material on record in support of the relationship of the selected candidates with the influential persons as alleged, nor it is the case of the petitioners, that the influential persons had say in the selection of the candidates. Record produced by the Municipal Corporation shows, that criteria of selection was adopted."
Thus, the only issue on which the writ petitions were allowed by the learned Single Judge was that no criteria was adopted, published or notified and the marks were awarded in lump sum manner.
Learned counsel for the appellants has submitted that the unsuccessful candidates/writ petitioners appeared in the interview along with other candidates including the appellants without any protest at any stage either before the interview or even during the interview and after taking calculated chance and remaining unsuccessful, they cannot question the selection process. In this regard, he has relied upon two decisions of the Supreme Court in the case of Dhananjay Malik v. State of Uttaranchal, LPA No.1353 of 2010 [4] ***** (2008) 4 SCC 171 and Madan Lal v. State of J&K and others, (1995) 3 SCC 486 and a Full Bench decision of this Court in the case of Gurleen Kaur v. State of Punjab and others, 2009(3) SCT 165.
It is also argued that it was neither the case of the writ petitioners that the criteria had been framed nor that the criteria had been changed. He has submitted that in the absence of pleadings on an issue, the scope is limited to challenge the same. In this regard, he has relied upon a Full Bench decision of this Court in the case of Daljit Singh Minhas and others v. State of Punjab and others, 1978(1) SLR 32.
He has also submitted that the appellants have discharged 11 years of unblemished service. There would be severe injustice to them if they are deprived of their job at this stage especially when three of them have become overage and ineligible for public employment. In this regard, he has relied upon a decision of the Supreme Court in the case of H.C.Puttaswamy v. Chief Justice of Karnataka High Court, 1991 Supp (1) SCC 116.
On merits, it is submitted by learned counsel for the appellants that the learned Single Judge has erred in concluding that the approved criteria was changed after advertisement. He submitted that no criteria was ever adopted before selection and only a proposal was made before the competent authority which was never approved. The criteria to be adopted was put up for consideration by the Superintendent (E) on 04.10.2001 on which the Commissioner of the Corporation marked the file as "please discuss" on 08.10.2001. According to the record, the matter was again put LPA No.1353 of 2010 [5] ***** up before the Municipal Commissioner on 18.10.2001 and it was recorded that "please discuss along with Supdt. (E)". The file was then marked by the Additional Commissioner of the Corporation on 19.10.2001 in terms of the orders of the Commissioner asking the Superintendent (E) to discuss the issue along with the file. Thereafter, there is no discussion in the file or noting with regard to the approval of the criteria by the competent authority. Hence, it is evident that there was no approved criteria which was changed after the advertisement. It is also submitted in the alternative that assuming, though not admitted, that even if the criteria had been changed, the same was changed prior to the receipt of the applications and hence, no illegality has been committed nor any prejudice has been caused to any one including the writ petitioners. It is also submitted that the criteria for the selection was approved by the competent authority i.e. Commissioner on 12.12.2001 and as such, it is incorrect that it has been changed after the advertisement. It is also submitted that even if the interview marks are reduced from 30 to 25, the result of selection does not change as the appellants have scored higher marks then the writ petitioners.
Learned counsel for the Municipal Corporation, Jalandhar has also submitted that the final discussion for the criteria took place and approved on 12.12.2001, a day before the interviews were to be held. The applications were invited through Employment Exchange with liberty that even who have not received any letter from the Employment Exchange can appear in the interview along with the application and the corrigendum with regard to the change of age was duly issued on 06.12.2001 on account of the LPA No.1353 of 2010 [6] ***** circular of the State of Punjab dated 22.05.1996. It is also alleged that the Selection Committee has given separate marks under separate heads and the allegations that lump sum marks have been awarded is totally wrong.
On the other hand, learned counsel for the writ petitioners, much-less the private respondents, has argued that the conclusion drawn by the learned Single Judge was that the selection criteria was finalized on the basis of which advertisement was issued but subsequently it was changed on 12.12.2001, one day before the interview. He has submitted that the criteria once finalized cannot be changed during the process of selection and to that extent the change in criteria was totally vitiated in law. To substantiate his submission, he has relied upon a decision of the Supreme Court in the case of Mohd. Sohrab Khan v. Aligarh Muslim University and others, 2009 (4) SCC 555 and a Division Bench judgment of this Court in the case of Ravdeep Kaur v. State of Punjab and others, 1985(1) ILR (Punjab) 343.
It is further argued that the appointment which is per se illegal cannot be protected on the ground of equity. Reliance was placed in this regard upon two decisions of the Supreme Court in the cases of Regional Manager, Central Bank of India v. Madhulika Guruprasad Dahir and others, (2008) 13 Supreme Court Cases 170 and Ashok Kumar Sonkar v. Union of India and others, 2007(4) SCC 54.
It is also argued that it is incorrect that the criteria was never approved by the Commissioner. He has submitted that it was approved by the Commissioner on 05.09.2001 and was put up to the Government of Punjab.
LPA No.1353 of 2010 [7]
***** We have heard learned counsel for the parties and have perused the record.
There is no dispute that the posts were advertised on 02.12.2001 in which age to apply was between 18 to 30 years which was further enhanced to 35 years by way of corrigendum dated 06.12.2001. It is also not in dispute that no criteria was given in the advertisement rather the selection process was based upon "walk-in-interview" for which no separate cards were to be issued. It is mentioned in the advertisement that "they will give their applications for the posts of Ayurvedic Medical Officer and will present at their own costs for interview on the above said date, time and place". The interview was to be conducted by the Selection Committee comprising of District Welfare Officer, Principal of Dayanand Ayurvedic Medical College, Jalandhar, one representative of the rank of Joint Secretary to the Government of Punjab, Additional Commissioner of the Corporation being the Chairman and the Health Officer of the Corporation as the Subject Expert. It is also admitted that there is no challenge to the constitution of the Selection Committee and insofar as the mala fide is concerned, that plea has already been rejected by the learned Single Judge on the ground of lack of material. It is also not disputed that the appellants were already working on the aforesaid posts for the last 11 years and their service track is unblemished and outstanding.
The only thing which prevailed upon the learned Single Judge was that the selection criteria was approved by the Commissioner, Municipal Corporation, Jalandhar, which has been changed on 12.12.2001 LPA No.1353 of 2010 [8] ***** as the criteria attached as Annexure `A' has been approved.
As per the record, the criteria, referred to by the writ petitioners, was not approved as on 04.10.2001. It was put up for consideration by the Superintendent (E) but the Commissioner of the Corporation marked the file as "please discuss" on 08.10.2001. It was again put up before the Commissioner on 18.10.2001 and it was recorded that "please discuss along with Superintendent (E)". The criteria was, in fact, approved on 12.12.2001, one day prior to the date of interview on 13.12.2001 and 16.12.2001 which was merely a "walk in interview" in which the candidates were to give their applications on the same day. Thus, there was hardly any prejudice caused to the writ petitioners who were still much below then the appellants in the assessment of marks under different heads.
In regard to the first legal submission that the writ petitioners, who had appeared in the interview along with other candidates, including the appellants, without any protest either before or during the interview and taken a calculated chance, remained unsuccessful, cannot challenge the same on the ground that the criteria has been changed, the Supreme Court in Dhananjay Malik's case (supra) has held as under:-
"6. Before we proceed further we may point out at this stage that the writ petitions were rightly dismissed by the Single Judge and the Division Bench of the High Court fell in error in entertaining the appeals.
7. It is not disputed that the writ petitioners- LPA No.1353 of 2010 [9]
***** respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
8. In Madan Lal vs. State of J & K, this Court pointed out that when the petitioners appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the LPA No.1353 of 2010 [ 10 ] ***** process of interview was unfair or the Selection Committee was not properly constituted.
9. In the present case, as already pointed out, the writ petitioners-respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.
10. In a recent judgment in the case of Marripati Nagaraja vs. The Government of A.P., SCR at p. 516, this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.
11. We are of the view that the Division Bench of the High Court could have dismissed the appeal on this score alone as has been done by the learned Single Judge."
LPA No.1353 of 2010 [ 11 ]
*****
Similar view has been taken by the Supreme Court in Madan Lal's case (supra) and by the Full Bench of this Court in Gurleen Kaur's case (supra).
The second legal issue that if the writ petitioners have not pleaded that the criteria has not been framed or that it had been changed, the scope of attack is limited. In this regard, in Daljit Singh Minhas and others' case (supra), the Full Bench of this Court held as under:-
"21. Now a significant thing which calls for pointed notice in these petitions is the fact that nowhere any challenge had been laid to the validity of the original appointments of persons who were recruited as adhoc teachers during the long period for which the selection through ordinary channels continued to hang fire. In the writ petitions, there are no pleadings whatsoever either with regard to the facts or equally with regard to any ground on which the original appointments of ad hoc teachers could be assailed. It equally deserves high lighting that not a single ad hoc teacher has been even arrayed as the respondent in these writ petitions and only the official respondents have been made parties thereto, barring one Bhag Singh in Civil Writ No.1460 of 1977, who also does not fail in the category of ad hoc teachers. In the total absence of any pleading on the point, the original appointments of ad hoc teachers in LPA No.1353 of 2010 [ 12 ] ***** strictness cannot be the subject matter of challenge and, therefore, the scope of the petitioners attack is necessarily reduced to the limited ground whether such ad hoc employees can now reasonably be classified for the purpose of the regularization of their services and consequently being directly appointed to the posts within the cadre."
On the third legal issue about the equity that the appellants, who have been working for the last 11 years on regular basis, would suffer serious prejudice because three of them would become overage and ineligible for public employment, in the case of H.C.Puttaswamy's case (supra) the Supreme Court has observed as under:-
"13. There is good sense in the plea put forward for the appellants. The human problem stands at the outset in these cases and it is that problem that motivated us in allowing the review petitions. It may be recalled that the appellants are in service for the past 10 years. They are either graduates or double graduates or post graduates as against the minimum qualification of S.S.L.C. required for Second Division Clerks in which cadre they were originally recruited. Some of them seem to have earned higher qualification by hard work during their service. Some of them in the normal course have been promoted to higher cadre. They are now LPA No.1353 of 2010 [ 13 ] ***** overaged for entry into any other service. It seems that most of them cannot get the benefit of age relaxation under Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977. One could only imagine their untold miseries and of their family if they are left at the midstream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva voce to be conducted by the Public Service Commission for fresh selection.
14. We may briefly touch some of the decisions referred to us by counsel for the appellants. A.K. Yadav v. State of Haryana and ors., 1985(4) SCC 417, was concerned with the selection made by the Haryana Public Service Commission for appointment to the cadre of the Haryana Civil Service by allocating 33.3 per cent for viva voce. The selection was challenged before this Court on the ground that the marks awarded for the interview was high as it would open door for arbitrariness. This Court upheld that contention and held that the marks for viva voce test should not exceed 12.2 per cent. However, the Court did not set aside the appointments, instead, directed the Public Service Commission to give one more opportunity to the aggrieved candidates to appear at the competitive LPA No.1353 of 2010 [ 14 ] ***** examinations. In State of U.P. v. Rafiquddin & ors., 1988(1) SCR 794, the validity of selection made by the Public Service Commission of Uttar Pradesh to the cadre of Munsifs came for consideration. Here again the court refused to quash the appointment even though the selection was found to be contrary to the Rules of recruitment. In Miss Shainda Hasan v. State of U.P. & ors., 1990(2) All India Services Law Journal 93, the legality of appointment of a Principal of a minority college was in question. The Principal was overaged for appointment, but she was given age relaxation which was held to be arbitrary. Yet the Court has declined to strike down her appointment. On the contrary, the Chancellor was directed to grant the necessary approval for her appointment with effect from the date she was holding the post of the Principal. Her continuous working as Principal in the College seems to be the only consideration that weighed with this Court for giving that relief.
15. The learned Advocate General, however, relied upon the decision in Channabasavaiah v. State of Mysore and ors., 1965(1) SCR 360, which has also been relied upon by the High Court to deny relief to the affected persons. There the Karnataka Public Service LPA No.1353 of 2010 [ 15 ] ***** Commission made selection for appointment to services in Class I and II posts in the State Administrative Services. The Public Service Commission published a list of 98 persons who were said to be the selected candidates. After the announcement of the said list, the State Government sent a list of additional twenty four candidates to the Public Service Commission for consideration. The Commission approved those candidates and also included their names in the select list. Consequently, all of them were appointed by the Government. Sixteen candidates who were not selected by the Public Service Commission moved the High Court with a writ petition under Article 226 of the Constitution challenging the selection made by the Public Service Commission. That writ petition was disposed of by a compromise between the Government and petitioners. The Government agreed to appoint those petitioners also. Of those 16 persons, three had not even been called for interview by the Public Service Commission since they were not qualified for interview. But upon appeal, this Court, quashed the appointment of twenty- four persons selected by the Government and also the appointment of sixteen persons who had filed the writ petition before the High Court and who were appointed LPA No.1353 of 2010 [ 16 ] ***** on the terms of the compromise. The facts of the case are not comparable with the present. Considerations that weighed with this Court also appear to be quite different.
16. The precedents apart, the circumstances of this case justify an humanitarian approach and indeed, the appellants seem to deserve justice ruled by mercy. We take note of the fact that the writ petitioners also would be appointed in the High Court as stated by learned Advocate General of the State.
17. In the result, we allow these appeals and direct that these appellants should be treated to be regularly appointed with all the benefits of the past service. The judgment of the High Court is accordingly modified. This order would govern all those whose appointments have been quashed by the High Court."
As regards the argument raised by learned counsel for the writ petitioners that the selection criteria once finalized on the basis of the advertisement could not have been subsequently changed on 12.12.2001, one day prior to the interview, he has relied upon a decision of the Supreme Court in Mohd. Sohrab Khan's case (supra). In that case, the facts were that Aligarh Muslim University issued an advertisement calling for applications for filling about 79 posts in the University. One of the said posts which was advertised was the post of Lecturer in Chemistry in LPA No.1353 of 2010 [ 17 ] ***** University Polytechnic. Qualification that was laid down by the University as essential qualification was a First Class Masters' Degree in the appropriate branch of teaching post in Humanities and Sciences. Both Mohd. Sohrab Khan and Merajuddin Ahmad submitted their applications to be considered as against the aforesaid post which was advertised, namely, Lecturer in Chemistry. Mohd. Sohrab Khan had a First Class Masters' Degree in Chemistry (Pure), whereas Merajuddin Ahmad was holding a First Class Degree in Industrial Chemistry. Both of them were called for the interview. Merajuddin Ahmad was selected on the ground that he would be more suitable to the aforesaid post as he holds a Masters Degree in Industrial Chemistry. Mohd. Sohrab Khan challenged the order of the University by way of writ petition before the Allahabad High Court. The Division Bench of the Allahabad High Court allowed the writ petition holding that the aforesaid appointment of Merajuddin Ahmad to the said post is not legal as he did not possess the minimum qualification. It was held in that case by the Supreme Court that the Selection Committee as also the University changed the rule in the midstream which was not permissible. The University can always have a person as a Lecturer in a particular discipline that it desires to have, but the same must be specifically stated in the advertisement itself, so that there is no confusion and all persons who could be intending candidates, should know as to what is the subject which the person is required to teach. It was also held that Merajuddin Ahmad did not possess a degree in Chemistry (Pure), whereas the post was advertised for Chemistry (Pure) and it was found that Merajuddin Ahmad was LPA No.1353 of 2010 [ 18 ] ***** possessing a degree in Industrial Chemistry which was altogether different subject.
Per chance, the facts of that case are altogether different from the facts of the present case.
Similarly, in Ravdeep Kaur's case (supra), it was a case of admission to Medical College from quota reserved for sportsmen and sportswomen. The candidates qualified the entrance test and applied for admission on criteria published in the prospectus. The criteria was changed after passing of the qualifying test making such candidate ineligible for admission. In that circumstance, it was held that the Government was not competent to change criteria for admission at such stage as the Rules for admission published in the prospectus have the force of law.
In the present case, however, the situation is altogether different because the criteria was approved on 12.12.2001 and the interviews were held on 13.12.2001 and 16.12.2001, meaning thereby there was no change of criteria after the applications for interview were submitted by the candidates in the "walk-in-interview" and all candidates were considered under the same criteria and the writ petitioners have not been rejected because of change of criteria in midstream in order to give extraordinary benefit to the selected candidates.
Learned counsel for the writ petitioners has also submitted that the equity should not be brought in when the appointment is per se illegal. In the case of Regional Manager, Central Bank of India (supra), relied upon by the learned counsel for the writ petitioners, the appointment was LPA No.1353 of 2010 [ 19 ] ***** based upon false caste certificate. The plea was raised that long delay was there on the part of Scrutiny committee or that appointee had put in long service meanwhile. In that circumstance, it was held that the equity, sympathy and generosity have no place in such a situation.
In Ashok Kumar Sonkar's case (supra), it was held that in the absence of any cut-off date specified in the advertisement or rules, the last date for filing of applications shall be considered the cut off date for eligibility and a candidate not holding the requisite qualifications on such cut off date, will be ineligible and cannot be considered at all. It was held that allowing such ineligible candidate to take interview will vitiate the selection process.
Incidentally, the position in the present case is not that which has been there in the case of Regional Manager, Central Bank of India (supra) and in Ashok Kumar Sonkar's case (supra) relied upon by learned counsel for the writ petitioners. All the candidates had a fair chance before the Selection Committee when they had appeared for interview. The criteria was already finalized on 12.12.2001 and not on 04.10.2001, as alleged, because at that time it was left with a note "please discuss". All the candidates were evaluated in terms of the criteria dated 12.12.2001 who had submitted their applications thereafter on 13.12.2001. There is no fraud played by them nor it is a case where they had submitted some bogus documents which has been considered by the Selection Committee. Moreover, there is no challenge to the constitution of the Selection Committee or even to the criteria which has been adopted.
LPA No.1353 of 2010 [ 20 ]
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In view of the aforesaid discussion, we are of the considered opinion that the order of the learned Single Judge suffers from illegality and as such, the same is hereby set aside. All the appeals are, thus, allowed and the writ petitions are hereby dismissed, without any order as to costs.
(A.K.Sikri) (Rakesh Kumar Jain)
Chief Justice Judge
05.11.2012
vinod*