Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 13 (PNJ)

Amarjit Singh v. State Of Punjab

2005-01-06

J.S.NARANG, S.S.NIJJAR

body2005
Judgment S.S.Nijjar, J. 1. With the consent for the parties, the writ petition is taken up for final disposal at the motion stage. 2. We have heard the learned counsel for the parties at length and perused the paper-book. 3. The petitioner has completed for the PCS Executive Branch and Allied Services Examination in the year, 1987. He was placed at Merit No. 3 in the other than Balmiki/Mhazbi Sikhs in the Scheduled Castes Category. Due to non-availability of sufficient number of posts in the PCS Executive Branch, he was appointed as District Food and Supplies Controller. He joined the said post in July, 1989. It seems that candidate at merit No. 1 did not join as he had been selected as an I.P.S. Officer, even prior to the completion of the appointment process. The next candidate Rajinder Singh who was originally allocated and appointed as an Excise and Taxation Officer (Allied Services) was re-allocated to the PCS(EB). He joined on 18.10.1989, but resigned on 13.9.91, having been selected as an I.P.S. Officer. The petitioner claims appointment on the vacancy caused by the resignation of Rajinder Singh. The petitioner has placed strong reliance on the government instructions (Annexure P-1) contained in Circular Letter No. WGII-13 (29)-61/5598 dated March 6, 1961 (hereinafter referred to as "the 1961 Instructions") and a judgment of the Supreme Court in the case of Jagjit Singh v. State of Punjab, A.I.R. 1978 S.C. 988. 4. The petitioner claims that the respondents are regularly re-allocating and appointing various persons from time to time who are similarly situated as the petitioner. In some cases, the State Government is re-allocating and appointing many people, after a gap of as long as 16 years. The examples mentioned in paragraph 9 of the petition of all the persons who have been re-allocated, are as under;- "1. S. Jagjit Singh was re-allocated from the post of Tehsildar and appointed to the PCS (EB) upon the resignation of S. Harinder Singh Khalsa in 1975 (1972 Exam.). II) Sh. Hans Raj Ganger and Smt. Gayatri Devi were reallocated and appointed to the PCS (EB) in 1976 over and above the advertised posts (1974 Exam.). III) Dr. Arvinder Singh was re-allocated from the post of ETO and appointed to the PCS (EB) in December, 1981 (1976 Exam.) in place of Sharanjit Singh Bham. II) Sh. Hans Raj Ganger and Smt. Gayatri Devi were reallocated and appointed to the PCS (EB) in 1976 over and above the advertised posts (1974 Exam.). III) Dr. Arvinder Singh was re-allocated from the post of ETO and appointed to the PCS (EB) in December, 1981 (1976 Exam.) in place of Sharanjit Singh Bham. IV) S. Swinder Singh Puri was reallocated from the post of ETO and appointed to the PCS (EB) in place of Mr. Kundra (1979 Exam.) after a gap of many years. V) S. Gurnam Singh Gill was reallocated from the post of ETO and appointed to PCS (EB) in 1999 after a long gap of 15 years without re-allocating the other person Jagir Singh to some other allied service. VI) S. Bhupinder Singh was re-allocated from the post of ETO to PCS (EB) in 1997 (1994 Exam.). VII) S. Harbir Singh was re-allocated from the post of ETO to PCS (EB) in 2001 (1994) after a gap of seven years. VIII) S. Shavdullar Singh Dhillon was reallocated from the post of ETO to PCS (EB) in 1993 (1984 Exam.) after a gap of nine years. IX) The reallocation of Shri Kuldip Kumar was also made after a gap of 16 years from ETO to DETC." 5. The petitioner claims that the name mentioned above are only the examples which are to the knowledge of the petitioner. There may be other such cases where the candidates were re-allocated and appointed from one Allied service to another. He claims that the above candidates are similarly situated as the petitioner. He is, therefore, entitled to be appointed to the PCS (EB) on the basis of the 1961 instructions. Action of the respondents in not calling the petitioner for re-allocation is discriminatory and violative of Articles 14 and 16 of the Constitution of India. Lastly, it is stated that the representation of the petitioner has been rejected, without passing a speaking order which has been conveyed to the petitioner on 4.12.2001. 6. The respondents have filed a written statement. They have raised a preliminary objection that the writ petition is liable to be dismissed on the ground of delay and latches. It is stated that the representation filed by the petitioner for re-allocation was rejected on 18.6.1997. 6. The respondents have filed a written statement. They have raised a preliminary objection that the writ petition is liable to be dismissed on the ground of delay and latches. It is stated that the representation filed by the petitioner for re-allocation was rejected on 18.6.1997. The petitioner had been informed that his representation had been considered and the same has been rejected as the facts and circumstances of his case are not similar to the case of Jagjit Singh referred to in his representation. The petitioner submitted the representation for the first time which was received in the Office on 9.12.1996. To cover up the limitation, the petitioner submitted another letter dated 18.10.2001. The decision thereon was conveyed to him by letter dated 4.12.2001. The claim of the petitioner is highly belated and deserves to be dismissed. On merits, it has been stated that the facts and circumstances of Jagjit Singhs case (supra) are not similar to the case of the petitioner. It is stated that in the case of the petitioner, the process of recruitment to PCS (EB) and Allied Services had taken place thrice after 1988 i.e. 1989, 1990, 1991 held in 1994 and, therefore, it was not practicable and possible to accept the request of the petitioner for reallocation to PCS Executive Branch; as this step would have upset the entire process which stood settled since long and could have started an unnecessary vicious circle and chain reactions by way of litigation, thereby leading to a number of administrative difficulties. In the given circumstances, the request of the petitioner for re-allocation was rejected after due consideration. According to the written statement, 1961 Instructions are of no avail to the petitioner since these instructions deal with reservation for the numbers of the Scheduled Castes to ensure their adequate representation in services and these instructions do not deal with the question of re-allocation of candidates in PCS (EB). The respondents have further stated that the vacancy meant for Scheduled Castes had been consumed by Rajinder Singh in the year 1988 as he had resigned after serving for about two years. The resultant vacancy was included in the subsequent process of recruitment. As such there was no question of allocation to the petitioner because the post was duly consumed and no vacancy was available. The respondents controvert the contents of paragraph 9 of the petition as being incorrect. The resultant vacancy was included in the subsequent process of recruitment. As such there was no question of allocation to the petitioner because the post was duly consumed and no vacancy was available. The respondents controvert the contents of paragraph 9 of the petition as being incorrect. It is further stated that there are no rules which allow the re-allocation of persons working in PCS Allied to PCS (Executive). In the absence of any rule, the respondents-State had issued instructions on the subject on 19.11.1992 to the effect that the respondent-State has decided not to fill up higher services from lower service by transfer on the basis of PCS (EB) and other Allied Service Examination. In view of this policy of the State Government, in many other cases for appointment to a vacant post of higher services were rejected. These include the case of S.S. Bains, Labour Conciliation Officer (1984 Batch) and Kuljit Singh Dullet, Assistant Employment Officer (1991 Batch). In view of this policy decision another similar case of Shalin Walia (1991 examination held in 1994) who was allocated to Labour and Employment Department was also rejected. Facts vary from case to case, moreover, bad precedents, if any, cannot be taken as base for any relief. The respondents have further referred to the case of Faridabad CT. Scan Centre V/s. D.G. Health Services and Ors., 1997(8) J.T. S.C. 171 in support of the submission that wrong order cannot be perpetuated with the help of Article 14 on the basis that similar wrong orders were passed in other cases and there should be discrimination. The respondents have also referred to the decision rendered by a Division Bench of this Court in the case of Munish Kumar V/s. State of Haryana, 1998(4) R.S.J. 634 and submitted that superior courts cannot exercise writ jurisdiction to give relief to the petitioner by invoking the doctrine of equality on the ground that in similar case the Government or Public authority has passed order though such order may be contrary to the provision of the statute or the policy framed by the Government. The respondents have also relied on Government Instructions No. 10/42/488-2PP3 dated 19.11.1992 which forbid the subsequent appointment to higher services on the basis of PCS EB and Allied Services Examination. The respondents have also relied on Government Instructions No. 10/42/488-2PP3 dated 19.11.1992 which forbid the subsequent appointment to higher services on the basis of PCS EB and Allied Services Examination. According to the respondents, there is no violation of Article 14 and 16 of the Constitution of India and the writ petition deserves to be dismissed. 7. We have carefully considered the entire matter and examined the judgment rendered in the case of Jagjit Singhs case (supra). In that case, the Supreme Court was considering the claim of Jagjit Singh who had competed in the Examination, called the Punjab Civil Services and Allied Services Examination in December 1972/January 1973. The examination had been held to select eligible candidates for 12 vacancies. Out of these 12 vacancies, only two posts, one each for the years 1971 and 1972 were available for members of the Scheduled Castes, on the basis of 20% quota reserved for them. The two posts were offered to Harinder Singh Khalsa and Hans Raj Megh as they were at numbers 1 and 2 of the merit list. Since the appellant could not be recruited to the PCS Executive Branch, he was appointed as A Class Tehsildar (Allied Services), on the basis of his second preference. A little later on or about 21.6.1974, consequent upon his selection and appointment in the I.A.S., Harinder Singh Khasla resigned and was relieved on 11.8.1974. Jagjit Singh being the next candidate in the order of merit amongst the scheduled caste candidates, made a representation to the State Government claiming on adhoc basis the vacancy caused by the resignation of Harinder Singh Khalsa, on the basis of the 1961 Instructions. These instructions provided that posts vacated by the members of the Scheduled Castes/Tribes and Backward Classes and should remain earmarked and be filled up by members belonging to these classes. The Government, however, rejected the claim of the appellant where upon he approached this Court by filing C.W.P. No. 2504 of 1975 under Article 226/227 of the Constitution of India. The petition was dismissed by the High Court. In these circumstances, the Supreme Court held as follows:- "We frankly confess we are unable to understand the rationale or approach of the High Court which manifestly runs counter to the aforesaid instructions of the Government contained in Circular No. WG-II-13 (29)-61/5598 dated March 6, 1961. The petition was dismissed by the High Court. In these circumstances, the Supreme Court held as follows:- "We frankly confess we are unable to understand the rationale or approach of the High Court which manifestly runs counter to the aforesaid instructions of the Government contained in Circular No. WG-II-13 (29)-61/5598 dated March 6, 1961. The instructions not only deprecate the then existing practice according to which in case of termination of the service of a Govt. servant belonging to Scheduled Casts/ Tribes and backward classes, the resultant vacancy was included in the normal pool of vacancies to be filled up in accordance with the block system and characterise it as repugnant to the dominant idea of giving due representation to the members of Scheduled Castes/Tribes and backward classes but go on to lay down in unmistakable terms that if the services of a Government servant belonging to Scheduled Castes/ Tribes or backward classes are terminated, the resultant vacancy should not be included in the normal pool of vacancies to be filled up in accordance with the block system but should be filled up on ad hoc basis from the candidates belonging to these castes and classes. The instructions put the matter beyond the pale of controversy by emphatically declaring that the intention of the Government was that the posts vacated by members of Scheduled Castes/Tribes and backward classes should remain earmarked and be filled up by the members belonging to the Scheduled Castes/Tribes and backward classes. 6. In face of these clear and categorical instructions, the contention advanced on behalf of the State that the vacancy meant for Scheduled Castes having been once utilised by Harinder Singh Khalsa ceased to be a reserved vacancy and the appellant had no right to be appointed against it cannot be countenanced and consequently the claim of the appellant cannot but be upheld. We have no doubt in our mind that the resultant vacancy caused by the resignation of Harinder Singh Khalsa should have gone to the appellate who belonged to the Scheduled Caste and was entitled to it both on the basis of the merit and the policy statement contained in the aforesaid Circular letter of the Government as well as the fact that no competitive examination had been held by the Commission between 1972 and the end of 1974 in which the appellant could have or should have appeared. We may also state that the statutory rules relating to reservation of vacancies cannot operate as an impediment in the way of the appointment of the appellant as it would by no means increase the number of the two posts reserved by the Government itself for the members of the Castes to which the appellant belonged during the relevant years. 8. Relying on the aforesaid observations, Mr. Gulshan Sharma has vehemently argued that the petitioner is entitled to be appointed on the post vacated by Rajinder Singh. 9. Undoubtedly, a legal right had accrued in favour of the petitioner on the post being vacated by Rajinder Singh on 30.9.1991. However, no relief can be granted to the petitioner in the facts and circumstances of the present case. It is to be noticed that the petitioner appeared in the Examination in the year 1987. He was appointed at District Food and Supplies Controller in July, 1989. The reserved category candidate, Rajinder Singh resigned on 30.9.1991. The cause of action, if any, arose to the petitioner at that time. The petitioner submitted the representation for the first time on 9.12.1996 which was rejected on 18.6.1997. Just to cover up the period of limitation, the petitioner again submitted a representation on 18.10.2001. On 4.12.2002, he was informed that his representation had already been rejected on 18.6.1997 and the matter cannot be re-opened. We are of the considered opinion that the writ petition filed by the petitioner suffers from inordinate delay and latches. The Supreme Court in the case of Sadasivaswamy V/s. State of Tamil Nadu, A.I.R. 1974, Supreme Court 2271, he has held as under:- "2....A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor it is that there can never be a case where the Courts interfere in a matter after the passage of a certain length of time. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor it is that there can never be a case where the Courts interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Articles 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioners petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellants petition as well as the appeal." 10. In view of the aforesaid enunciation of law by the Supreme Court, we are of the opinion that no relief can now be granted to the petitioner. 11. It also deserves to be noticed that numerous other persons who have been subsequently appointed to the PCS Executive Branch would be adversely affected, in case the vacancy caused by the resignation of Rajinder Singh is now to be offered to the petitioner. None of these affected persons are impleaded as parties. When confronted with this situation, learned counsel for the petitioner himself submitted that it would be impossible to implead all the persons who would be affected as there would be so many of them. In such circumstances, to grant any relief to the petitioner would be to unsettle settled matters. This view of ours finds support from a Full Bench judgment of this Court in the case of Punjab State Electricity Board, Patiala and Anr. V/s. Ashok Sehgal and Ors., 1989(4) S.L.R. 437. In that case, the petitioner had sought the relief on the basis of a judgment of the Supreme Court in the case of Punjab State Electricity Board, Patiala and Anr. V/s. Ravinder Kumar Sharma and Ors., 1986(3) S.L.R. 778 (S.C.). After elaborately considering a number of legal issues, the Full Bench dismissed the writ petition on a number of grounds. In that case, the petitioner had sought the relief on the basis of a judgment of the Supreme Court in the case of Punjab State Electricity Board, Patiala and Anr. V/s. Ravinder Kumar Sharma and Ors., 1986(3) S.L.R. 778 (S.C.). After elaborately considering a number of legal issues, the Full Bench dismissed the writ petition on a number of grounds. The conclusions reached by the Full Bench have been summed up in paragraph 57. Conclusions (c), (d), (e) and (f) would be squarely applicable in the facts and circumstances of this case which we reproduce here-under:- "57. Thus to conclude, the judgment and order of the learned Single Judge in C.W.P. No. 1903 of 1987 in Ashok Kumar Sehgals case is set aside for the reasons- XXX XXX XXX XXX (c) He cannot succeed for having not impleaded the parties affected thereby, if he was to be given promotion from a back date and more particularly in the absence of Ramesh Kumar, the junior suggestedly promoted earlier to him (d) The claim of the writ petitioner is stale and an effort to unsettle settled matters and would be inequitious to disturb those who sit back and consider that their appointments and promotions effected a long time ago would not be upset after a lapse of a number of years; (e) He cannot succeed since rights of other parties have come into existence and this Court cannot harm innocent parties since those rights have emerged by reason of delay on the part of the writ petitioners. (f) The writ petitioners could only claim applicability of the law laid down in Ravinder Kumar Sharmas case and not relief by way of implementation thereof." 12. An noticed earlier, the petitioner did not make any grievance to the respondents for a period of six years. The cause of action had arisen in his favour on 30.9.1991. He submitted his representation for the first time on 9.12.1996. The aforesaid representation was rejected on 18.6.1997. Thereafter, the petitioner waited for five years before presenting the present writ petition on 8.1.2002. In an effort to avoid the objection of delay and latches, the petitioner submitted another representation on 18.10.2001 which was rejected on 4.12.2002. He was informed that his representation had already been rejected on 18.6.1987 and the matter cannot be re-opened. Thereafter, the petitioner waited for five years before presenting the present writ petition on 8.1.2002. In an effort to avoid the objection of delay and latches, the petitioner submitted another representation on 18.10.2001 which was rejected on 4.12.2002. He was informed that his representation had already been rejected on 18.6.1987 and the matter cannot be re-opened. In view of the law settled by the Supreme court in the case of Sadasivaswamy (supra), it would be wholly inappropriate to grant any relief to the petitioner at this stage. Additionally, the petitioner cannot be granted any relief as it would unsettle settled matters. Admittedly, the rights of other persons have come into existence. These rights of the innocent parties cannot now be put in jeopardy at the instance of the petitioner who has merely stood-by and permitted things to happen. The Supreme Court has clearly held that it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Articles 226/227 of the Constitution of India in the case of those persons who do not approach it expeditiously. In the present case, not only the petitioner failed to approach this Court expeditiously, he did not even care to approach the State Government for a period of six years after the cause of action accrued in his favour. 13. It also deserves to be noticed that the Government has issued instructions on 9.11.1992, on the subject of appointment from one service to another on transfer basis. In these instructions, it has been laid down as follows:- "2. It has come to the notice of this department that in some of the departments of State Government Officers appointed on the basis of PCS (EB) and Allied Services Examination are subsequently appointed to higher services in some other way. This practice is not proper. Therefore, it has been decided by the Government that in future no such appointment in any of the department of State Government may be made on the basis of above said examination." 14. On the basis of the aforesaid instructions, the claim of the petitioner would have to be rejected. The petitioner has not challenged the aforesaid instructions. The respondents have specifically pleaded that the aforesaid instructions have been implemented. The claims of number of officers for re-allocation have been rejected. On the basis of the aforesaid instructions, the claim of the petitioner would have to be rejected. The petitioner has not challenged the aforesaid instructions. The respondents have specifically pleaded that the aforesaid instructions have been implemented. The claims of number of officers for re-allocation have been rejected. The petitioner has not cared to file a replication to controvert the averments made in the written statement. It is, however, not disputed that the petitioner did not make a representation for appointment in the place of Rajinder Singh till the year, 1996. His undated representation was received in the office on 9.12.1996. The aforesaid representation was rejected on 18.6.1997. In the order of rejection, it was stated that the facts and circumstances of the case of the petitioner are not similar to the case of Jagjit Singh (supra). By that time, the instructions dated 9.11.1992 had been issued and implemented. Even if some appointments by transfer have been made after the issue of the instructions dated 9.11.1992, the petitioner cannot be granted any relief on the ground that it would amount to breach of Articles 14 and 16 of the Constitution of India. A wrong order passed in favour of a party cannot create an enforceable right on the principle of "equality" as enshrined under Articles 14 and 16 of the Constitution of India. In our view, the respondents are correct in relying on the judgment of the Supreme Court in the case of Faridabad CT. Scan Centre (supra) and of this Court in Munish Kumar (supra). In the case of Faridabad CT Scan Centre (supra), it has been held by the Supreme Court as follows:- "3. We fail to see how Article 14 can be attached in cases where wrong orders are issued in favour of others. Wrong orders cannot be peipetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons and, therefore, there will be discrimination against others if correct orders are passed against them. In fact, in the case of Union of India (Railway Board) and Ors. V/s. J.V. Subhajah and Ors., (1996(2) S.C.C. 258, the same learned Judge in his judgment has observed in para 21 that the principle of equality enshrined under Article 14 does not apply when the order relied upon is unsustainable in law and is illegal. In fact, in the case of Union of India (Railway Board) and Ors. V/s. J.V. Subhajah and Ors., (1996(2) S.C.C. 258, the same learned Judge in his judgment has observed in para 21 that the principle of equality enshrined under Article 14 does not apply when the order relied upon is unsustainable in law and is illegal. Such an order cannot form the basis for holding that other employees are discriminated against under Article 14...." The Supreme Court again examined a similar issue in the case of Chandigarh Administration and Anr. V/s. Jagjit Singh and Anr., (1995-2)110 P.L.R. 176 (S.C.), and laid down the law in the following words:- "We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law, but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the earlier illegal/act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law." 15 In our opinion, the claim of the petitioner is clearly to be rejected on the basis of the aforesaid observations of the Supreme Court. 16. A Division Bench of this Court in the case of Munish Kumar V/s. State of Haryana (supra) also considered the same issue relying on the aforesaid two judgments of the Supreme Court in the cases of Faridabad CT. Scan Centre (supra) and The Chandigarh Administration and Anr. V/s. Jagjit Singh and Anr. (supra). It has been held as under:- "6. In view of these decisions, it must be treated as a settled principle of law that the superior Courts cannot exercise writ jurisdiction to give relief to the petitioner by invoking the doctrine of equality on the ground that in a similar case the government or public authority has passed some order in favour of another person even though such order may be contrary to the provisions of the statute or the policy framed by the government. Their Lordships of the Supreme Court have in no uncertain terms ruled that the doctrine of equality cannot be invoked by the petitioner for issuance of a mandamus directing a public authority to pass an illegal order. 9. Their Lordships of the Supreme Court have in no uncertain terms ruled that the doctrine of equality cannot be invoked by the petitioner for issuance of a mandamus directing a public authority to pass an illegal order. 9. We may mention that the petitioner has not challenged the vires of the circulars issued by the government on the ground that they are inconsistent with the provisions of any statute or Articles 14 and 16 of the Constitution of India. Therefore, keeping in view the judgments of the Supreme Court in Union of India V/s. K.P. Joseph and Ors., 1973(1) S.L.R. 910 and Dr. Amarjit Singh Ahluwalia V/s. The State of Punjab and Ors., 1975(1) S.L.R. 171, the respondents are bound to act in accordance with the application of Smt. Savitri Devi." For the reasons recorded above, we hold that the petitioner cannot be granted any relief in exercise of the extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India. In view of the above, the writ petition is dismissed. No costs.