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2006 DIGILAW 2153 (PNJ)

Gurjinder Singh v. State Of Punjab

2006-05-16

ARVIND KUMAR, J.S.NARANG

body2006
Judgment J. S. NARANG and j. JJ. 1. This judgment would dispose of CWP Nos.7695 of 2004, 2789,3450,4102 and 5680 of 2006, as the common question of law has been raised and the relief claimed is also similar. The facts are being taken from CWP No.7695 of 2004. 2. The petitioners have invoked the extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India, for seeking issuance of a writ in the nature of mandamus directing the respondents to allow the petitioners to continue on the respective posts occupied by them, instead of appointing the regularly selected candidates, in view of the fact that vacant posts are in existence. Further, writ of certiorari has been prayed for quashing any order which may have been passed by the respondents for terminating the services of the petitioners. 3. The petitioners had been appointed as Lecturers upon the basis of an advertisement issued and considering the claims of all the eligible persons accordingly. The details of all the petitioners in the present petition has been given in para 2 of the petition and the same need not be reiterated. The petitioners had been initially appointed on a fixed salary. This approach on the part of the respondents was challenged by way of writ petition filed before this Court, which was dismissed and that the order of dismissal was challenged by way of Special Leave Petition before the HON BLE Supreme Court. The prayer for regularization had been rejected but were held entitled to the minimum of the scale with an observation that they would continue on the post till regularly selected persons are appointed. Copy of the order passed by the HON BLE Supreme Court has been appended as Annexurep1. 4. It has been averred that the Punjab Public Service Commission (hereinafter referred to as "the Commission") had advertised 45 posts of lecturers in English on 3.4.1999 and 55 posts of Lecturers in English in the year 2001. Resultantly, in all 100 posts stood advertised. In response to the first advertisement, only 24 candidates were selected as against 45 vacancies. Similarly, 37 candidates were selected as against 55 posts. Thus, 61 candidates were selected as against 100 posts, and that 39 remained unfilled. 5. The factual status as given by the petitioners is that at present 41 persons are working as Lecturers in English on ad hoc basis. Similarly, 37 candidates were selected as against 55 posts. Thus, 61 candidates were selected as against 100 posts, and that 39 remained unfilled. 5. The factual status as given by the petitioners is that at present 41 persons are working as Lecturers in English on ad hoc basis. It has also been averred that there are about 125 posts of Lecturers, which are lying vacant, dehors the posts for 61 selected candidates as aforesaid. Resultantly, all the 41 ad hoc appointees need not be removed/terminated. It is also the claim of the petitioners that despite the directions issued by the HON BLE Supreme Court, the petitioners are not being paid the minimum of the scale. Some of the ad hoc appointees have also initiated contempt proceedings, which has annoyed the respondents. 6. It is also the stand of the petitioners that in view of the law laid down by this Court also the HON BLE Supreme Court that the regularly selected persons have to be accommodated first against the vacant posts and thereafter the ad hoc appointees in terms of seniority are to be retained, despite this the petitioners are being edged out. The effect of dicta would be that junior most ad hoc appointees would have to give way to the regularly selected candidates. In support of this contention various interim orders passed by this Court have been relied upon. Notice of motion had been issued. The State as well as the private respondents have contested the petition by way of filing the detailed written statements. 7. The State has taken preliminary objection that the petitioners had earlier filed CWP No.1764 of 2001, along with 38 other connected writ petitions. The matter was decided by this Court vide judgment dated august 9, 2001 and that the claim of the petitioners for holding the posts and regularization thereon had been rejected. The government had been directed to fill up the posts of Lecturers on regular basis within one year. This order was challenged by way of Special Leave Petition No.1471 of 2001, before the HON BLE Supreme Court, which was partly accepted by way of granting the minimum of the pay scale. Pursuant to the directions of this court, the Commission selected and recommended 60 candidates for regular appointments as Lecturers. 8. This order was challenged by way of Special Leave Petition No.1471 of 2001, before the HON BLE Supreme Court, which was partly accepted by way of granting the minimum of the pay scale. Pursuant to the directions of this court, the Commission selected and recommended 60 candidates for regular appointments as Lecturers. 8. It is the stand of the government that there is no vacant post in existence in the subject of English in view of letter dated May 10/13, 2002, issued by the Department of Personnel, copy Annexure R1. It has been averred that the government had taken a categoric stand for imposing ban on recruitment to the posts lying vacant presently and likely to fall vacant due to the retirements or any other reasons. It is further the stand that all such posts would be deemed to have been abolished forthwith. Thus, a post abolished accordingly can only be revived after the prior approval of the council of Ministers after seeking advice of Department of Finance. The budgetary provision made for these posts during the current year was also considered as dropped. It had also been indicated that any requisition, placed with the Commission, Subordinate Services Selection Board or the departmental Selection Committee, would be immediately withdrawn. Where any process for recruitment has been initiated i. e. Written test conducted or interview held, the said process should be stopped forthwith. The recommendations, for appointment, made by the Commission and the Subordinate Services selection Board would also not be filled in all cases where they have not yet been acted upon. Thus, in view of the stand of the Government and that decision having been taken, the petition deserves to be dismissed. 9. The government has also taken the stand on merit by stating that the petitioners had been appointed on part time basis, therefore, have no legal right to hold the post in view of better qualified candidates available, pursuant to the recommendations made by the Commission. It is further the stand that the judgment rendered by the HON BLE Supreme Court would not permit the petitioners to hold the post if regularly selected candidates are available. It is further the stand that the judgment rendered by the HON BLE Supreme Court would not permit the petitioners to hold the post if regularly selected candidates are available. It is further the stand of the Government that in view of the ban imposed by the government vide letter dated May 10/13, 2002 and the vacancies having been abolished, no vacancy can be said to be available in the subject of English, in the post of a Lecturer. It has been categorically denied that the petitioners are working on ad hoc basis. It is also the stand of the government that the direction of the HON BLE Supreme Court granting the minimum of the scale has been duly complied with. 10. The stand of the private respondents is that the said respondents were duly selected by the Commission and they have not been given the appointment as the petitioners are refusing to vacate the posts. It is also the stand of the respondents that the petitioners being part time appointees have no right to the regular posts. It is the settled law that once the regularly selected candidate is available, a part timer/ad hoc appointee/temporary appointee has to give way to such selectee. It is the admission of the petitioners that pursuant to the observations of the HON BLE Supreme Court they could continue as part timers till regular appointments are made. In the instant case, the private respondents having been regularly selected are entitled to be appointed against the said posts. 11. The petitioners have submitted short rejoinder to the written statement filed by the official respondents. The stand taken is, that in fact, there is no ban as is evident from the fact that the Director Public instructions (Colleges) had himself informed the Government on 7.11.2005 that so far as the Lecturers in English are concerned, the total sanctioned posts are 297 and only 159 posts stand occupied by the regular appointees and 41 Lecturers are working on ad hoc/part time basis, therefore, 97 posts are lying vacant. Thus, the regular appointees numbering 61 can be accommodated without disturbing the ad hoc/part time Lecturers. Copy of the aforesaid letter has been appended as Annexure P6. Thus, the regular appointees numbering 61 can be accommodated without disturbing the ad hoc/part time Lecturers. Copy of the aforesaid letter has been appended as Annexure P6. It has also been pointed out that the Director Public Instructions D. P. I) has filed an additional affidavit before this Court categorically stating "no post available in the subject of English except the post occupied by the part time lecturers working in various Government Colleges". The aforesaid affidavit is dated October 6, 2005. Subsequently, in response to an order of this court dated November 11, 2005, a fresh affidavit has been filed once all over again i. e. an affidavit dated November 16, 2005, by Shri Dinesh chand Gupta, Deputy Director, colleges (Punjab ). It shall be apposite to notice both the affidavits, which are reproduced as hereunder: "i Nisha Sarad, Director of Public Instructions (Colleges) Punjab Chandigarh, do hereby solemnly affirm and state as under: 1. This affidavit is being filed in compliance with the order of the HON BLE High Court dated 29.9.2005 which is matter of record. This affidavit may kindly be read along with written statement filed by the respondents in the instant writ petition.2. That the requisition of 55+44=99 posts occupied by the Part time lecturers in the subject of English was sent to punjab Public Service Commission by the Govt. of Punjab in the year 2000 and 2001.3. That in February 2004, when the respondents had been selected, there were no posts available in the subject of english except the posts occupied by the Part time lecturers working in various Govt. Colleges.4. That all the vacant teaching posts in Govt. Colleges stand abolished as per Punjab Govt. D. O. Letter no. F. D/dfreg-2002/649 dated 10/13 May 2002, which has already been annexed as R-1 with the written statement filed in the HON BLE Court.5. That there is no vacant post of lecturers in English in view of the ban imposed by the Govt.6. That part time lecturers such as thepetitioners will have to be relieved to enable the respondents to join Govt. service. In view of the position explained above it is therefore respectfully prayed that the instant writ petition may kindly be dismissed. " Place: Chandgiarh Sd/- Deponent. That part time lecturers such as thepetitioners will have to be relieved to enable the respondents to join Govt. service. In view of the position explained above it is therefore respectfully prayed that the instant writ petition may kindly be dismissed. " Place: Chandgiarh Sd/- Deponent. Dated: 6.10.05 " I, Dinesh Chand Gupta, Deputy Director (Colleges) office of the Director of Public Instructions (Colleges)Punjab, chandigarh do hereby solemnly affirm and state as under: 1. This affidavit is being filed in compliance with the order of the HON BLE High Court dated 29.9.2005 which is matter of record. This affidavit may kindly be read along with written statement filed by the respondents in the instant writ petition.2. That the requisition of 55+44=99 posts occupied by the Part time lecturers in the subject of English was sent to punjab Public Service Commission by the Govt. ofpunjab in the year 2000 and 2001.3. That in February 2004, when the respondents had been selected, there were no posts available in the subject of english except the posts occupied by the Part time lecturers working in various Govt. Colleges.4. That all the vacant teaching posts in Govt. Colleges stand abolished as per Punjab Govt. D. O. Letter No. F. D/dfrej 2002/649 dated 10/13 May 2002, which has already been annexed as R-1 with the Written statement filed in the HON BLE court.5. That there is no vacant post of lecturers in English in view of the ban imposed by the Govt.6. That Part time lecturers such as the petitioners will have to be relieved to enable the respondents to join Govt. service. In view of the position explained above it is therefore respectfully prayed that the instant writ petition may kindly be dismissed.7. That the ban imposed by the Punjab Govt. vide its d. O. Letter No. FD/dfrej-2002/649 dated 10/13 May,2002, has not been withdrawn till date by the Govt. of Punjab. In view of the position explained above it is therefore respectfully prayed that the imstant writ petition may kindly be dismissed. Place: Chandigarh dated:16.11.05 Sd/- Deponent. " 12. It may be noticed that a short rejoinder was submitted by the petitioners, after the filing of the affidavit, in which the communication dated 7.11.2005 along with detailed chart has been appended as Annexure P6. Place: Chandigarh dated:16.11.05 Sd/- Deponent. " 12. It may be noticed that a short rejoinder was submitted by the petitioners, after the filing of the affidavit, in which the communication dated 7.11.2005 along with detailed chart has been appended as Annexure P6. We have heard learned counsel for the parties at length and have also perused the paper book as also the documents appended therewith. 13. The stand of the petitioners, that the vacant posts are still available with the government, therefore, in view of the observations of the HON BLE Supreme court made in C. A. No.8745 of 2003, decided on november 7, 2003, by the HON BLE Supreme Court, is absolutely clear that the petitioners were to be continued in service till regular appointments are made and that they are to be paid the minimum of the pay scale. It is also the admitted case that requisition had been sent by the Government of Punjab to the Commission for filling 100 vacancies. Against the said posts, 61 candidates stood selected accordingly. They have not been issued appointments on the premises that 41 persons are working on ad hoc/part time basis against these posts. It has been alleged that the ban imposed by the Government came into operation on May 10/13, 2002, whereas, the selection had been made prior thereto and the recommendation was sent accordingly. On all counts 41 posts were not lying vacant on the date when the alleged ban came into operation and on the date, admittedly, 61 candidates had been selected. Even if the letter dated May 10/13, 2002, is read in its entirety for the purpose of establishing that all vacant posts stood abolished. Could it be accepted that the 41 posts also stood abolished, which had been occupied by the ad hoc/part time lecturers. So far as 61 posts are concerned, the candidates stood selected against those posts for which the requisition had been sent to the Commission. If the interpretation, as has been suggested by the respondents, is to be adhered to, it shall mean that against 61 posts and not 41 posts the petitioners are working. It shall be anomalous interpretation, which obviously cannot be accepted. 14. It is strange that the government machinery takes the decision which virtually becomes non implementive. If the interpretation, as has been suggested by the respondents, is to be adhered to, it shall mean that against 61 posts and not 41 posts the petitioners are working. It shall be anomalous interpretation, which obviously cannot be accepted. 14. It is strange that the government machinery takes the decision which virtually becomes non implementive. There may be regular posts which may be lying vacant and there may be certain persons waiting in the wings to be promoted after following the due procedure and process. Can we say that such posts also stood abolished. The office of the Director public Instructions had sent a communication to the Secretary, Government of Punjab Higher Education Department on 7.11.2005, indicating the status of sanctioned posts , regularly filled posts, part time filled posts, the total filled posts, the vacant posts and also the requirement as per workload. The document as appended with the aforesaid communication is indicative of the entire status in the State of Punjab. The posts of Lecturers in English have been described as 297 (sanctioned posts ). As against these posts, 159 persons are working, who had been regularly selected. Part time /ad hoc persons had been inducted numbering 41. Thus, the total filled posts are 200 as against 297 posts. Therefore, 97 posts have been disclosed as vacant posts. However, as per the work load the requirement indicated is 288, meaning thereby there are only 9 extra posts. Even if this is accepted, the vacant posts still available would be 88 after deducting 9 posts. Thus, as on 31.10.2005, 88 posts would be still taken as vacant posts as per the status disclosed by the offices of DPI (Colleges ). It is strange that both the officers have filed affidavits i. e. Nisha Sharad, DPI (Colleges) Punjab dated 6.10.2005 and Dinesh Chand Gupta, Deputy Director (Colleges) dated 16.11.2005, stating that no vacant post of lecturers in English, in view of the ban imposed by the government, is available. 15. We do not blame the aforestated officials, they have perhaps interpreted the letter of ban dated May 10/13, 2002 in stricto senso and have understood that even the sanctioned posts would stand abolished. It is not understood how the department would impart public instructions in the state if such approach is adopted. 15. We do not blame the aforestated officials, they have perhaps interpreted the letter of ban dated May 10/13, 2002 in stricto senso and have understood that even the sanctioned posts would stand abolished. It is not understood how the department would impart public instructions in the state if such approach is adopted. The government is expected to take absolutely crystal clear stand before the courts and should make an effort not to mislead by interpreting their own instructions/communications issued accordingly. It is obvious upon perusing the status indicated by virtue of the communication dated 7.11.2005 that the vacant posts do exist vis-a-vis the sanctioned posts. The office of DPI (Colleges) has categorically indicated the requirement as per workload and if any posts in excess have been sanctioned, the same could have been dealt with by the government accordingly. 16. However, upon perusal of the status depicted, which has been appended as Annexure p6 and also the stand of the Government that a requisition had been sent to the Commission for filling 100 posts of lecturers in the subject of English, this would clearly show that posts available were 129 posts i. e.88 were lying vacant and 41 had already been filled by the ad hoc/part time appointees. As against these posts, the requisition had been sent for filling 99 posts, against which 61 candidates had been selected. It is nowhere the case of the government that even the sanctioned post shall be taken to have been abolished by virtue of the communication dated May 10/13, 2002. 17. We had directed the government to produce the record to substantiate their stand that all the vacant posts stood abolished. Learned additional Advocate General, has not been able to point out any noting in the file vide which it could be inferred that all the sanctioned posts also stood abolished and no appointment whatsoever had been made upon the posts which fell vacant after May 10/13, 2002. She has also not been able to show that as against 99 posts, after the selection of 61 candidates, 39 posts had been ordered to have been abolished pursuant to the aforesaid ban imposed by the government. 18. However, we have perused a communication No. RG.491/98 and 162/201/a-9/1345 dated February 19, 2004, addressed by the commission to the Secretary Govt. of Punjab, Department of Education. 18. However, we have perused a communication No. RG.491/98 and 162/201/a-9/1345 dated February 19, 2004, addressed by the commission to the Secretary Govt. of Punjab, Department of Education. Wherein it has been disclosed that pursuant to the requisition made in 1999 and 2001, 23 and 33 candidates had been selected accordingly and the recommendations were made vide communication dated 20.3.2002. However, vide communication No.15/83-2002-2pp-3/8549 dated May 16, 2003, the aforesaid selections had been cancelled. Pursuant to the communication of the government, the requisitions relating to the selection of Lecturers (College Cadre) for the year 1999, against 262 vacancies and 74 vacancies for the year 2001, were again required to be considered for selection. Upon screening-cum-merit test held on January 11, 2004, 109 candidates as against the vacancies of 99 were present. All these candidates were interviewed on January 19,20 and 21 of 2004, at that time three candidates out of 109 were found absent at the time of interview. As per break up, 61 persons i. e.24 as against 1999 and 37 against 2001 are shown to have been selected and recommended. This matter seems to have been dealt with at various levels but no concrete decision was taken. It seems that there is some gap of communication which is not indicative that instead of referring the number as 61 at various places the number has been referred to as 60. It is also not understandable that in view of the ban imposed by the Government vide communication dated May 10/13, 2002, the selection process was again carried out by the Commission on January 11, 2004. If the stand of the Government is accepted, as has been taken before us, no vacant posts would be available for such selection. Unless, a decision could have been obtained from the government by the Commission, as to against which posts the selections have to be made. Even for consideration, if it is accepted that 41 posts were there against which the ad hoc/part time Lecturers were functioning , the question of selecting 60 (61)persons would not arise. It has also not been clarified that the requisition of 109 posts (which is indicated from the communication of the commission) was made inclusive of 41 posts or other than 41 posts. From the entire communications and perusal of the record, there is no clear indication in this regard. It has also not been clarified that the requisition of 109 posts (which is indicated from the communication of the commission) was made inclusive of 41 posts or other than 41 posts. From the entire communications and perusal of the record, there is no clear indication in this regard. From the latest noting of the government i. e. decisions of 2004, we find that it has been indicated that for appointing 60 selected persons, the equal number of posts should be got revived. 19. However, due to the pendency of this petition, this act seems to have been deferred, awaiting the decision in the instant petition. It is obvious that the government has not been able to take a clear stand as to what is the status vis-a-vis the selection of 60 candidates. It is not indicative from the record as none has been pointed out by learned Additional Advocate General that the aforesaid selection was to be made against the posts which were occupied by the ad hoc/part time appointees. Admittedly, the earlier selection was scrapped and the 60 candidates were selected again pursuant to the screening and written test held on January 11, 2004 and the interview held on January 19,20,21, 2004. It looks to be total lack of communication and conveyance of the explicit stand of the Government vis-a-vis the fate of such selectees that a total confusion has been caused. According to us, perhaps the Commission was also not aware as to whether the selections so made would be violative of the ban imposed by the Government vide communication dated May 10/13, 2002. It is obvious the fate of the lecturers working on ad hoc /part time basis has also not been clarified anywhere. There is no doubt, the HON BLE Supreme Court categorically observed that such appointees would continue on the post till the regularly selected persons are appointed. Since it is not clear as to against which vacant posts the 60 candidates had been selected ,it shall not be possible to give the appointments to such 60 selected candidates, the process in regard to which commenced in the year 1999 and 2001. 20. The ambiguity which has been caused due to lack of crystal clear communications between the two institutions, the selectees should not suffer so also the ad hoc and the part time appointees. The government should take absolutely clear decisions accordingly. 20. The ambiguity which has been caused due to lack of crystal clear communications between the two institutions, the selectees should not suffer so also the ad hoc and the part time appointees. The government should take absolutely clear decisions accordingly. However, this has also been left to the decision, which would be given by this Court, in the instant petition, whereby the petitioners have been granted the status quo in regard to their service. 21. In view of the above, it is mandated that the government shall take a decision in regard to revival of 60 posts ( if the number is correct and not 61) as the said candidates have been subjected to the selection as indicated above. So far as the ad hoc/part time appointees are concerned which have been indicated as 41 in number inclusive of the petitioners,they shall continue on the post in view of the mandate of the HON BLE Supreme court rendered in C. A. No.8745 of 2003, decided on 7.11.2003. It is made clear that this shall not give any right to the petitioners as also the ad hoc/part time appointees as and when the regularly selected persons against their posts, specifically stated, are selected in accordance with the due procedure and process provided under law. The petition is disposed of in the above terms. The record received pursuant to the certificate issued by the competent Authority is directed to be returned forthwith through learned additional Advocate General.