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Punjab High Court · body

2008 DIGILAW 2070 (PNJ)

Inderdip Singh v. State Of Punjab

2008-12-09

PERMOD KOHLI

body2008
Judgment Permod Kohli, J. 1. Punjab Public Service Commission (respondent No. 3) issued an advertisement No. X inviting applications for recruitment to the various categories of Class I Service posts like 16 posts of Punjab Civil Service (Executive Branch), 4 posts of District Food & Supplies Controller, 8 posts of District Food & Supplies Officer, 3 posts of Assistant Registrar Cooperative, Societies, post of Assistant Employment Officer and Excise and Taxation Officers. The advertisement was issued in the year 1985 (Annexure P-1). In response to the aforesaid advertisement, the petitioner applied for his selection. In terms of the notification, a candidate was required to give three preferences. According to the averments made in the petition, his first preference was to the post of PCS (Executive Branch). Second, preference was for the post of District Food & Supplies Controller and the third preference was for District Food & Supplies Officer. He was issued roll number and the date for written exanimation was notified for 14.10.1985. It is stated that the test could not be conducted on the date fixed and in the meantime, a fresh advertisement was issued by the respondent Punjab Public Service Commission on 05.09.1987. In the fresh advertisement, 5 posts of PCS (Executive Branch) were advertised. District Food and Supplies Controller/Assistant Director Food & Supplies 8, District, Food & Supplies Officers 14, Excise and Taxation Officers 22, Assistant Registrar Cooperative Societies 3, Tehsildars 3, Assistant Employment; Officer 1 and Labour & Conciliation Officer 3. Number of reserved posts were specified in both the advertisements. The said advertisement notice No. 4 (Annexure P-2) further specified that those candidates who had applied in response to the earlier advertisement No. X dated 09.03.1985 need not apply again. According to the petitioner, the second notification was in supplement to the first notification. However, it is admitted case of the petitioner that since he wanted to change subject which he had opted in the written examination earlier, he made a fresh application in pursuance of the second advertisement (Annexure P-2). He was issued roll number and participated in the written examination conducted in December, 1987. After the result of the written examination, petitioner was interviewed by the Commission and a final select list was issued. Petitioners name was at Sr. No. 7 of the Select List. He was issued roll number and participated in the written examination conducted in December, 1987. After the result of the written examination, petitioner was interviewed by the Commission and a final select list was issued. Petitioners name was at Sr. No. 7 of the Select List. First five candidates were selected for PCS (Executive Branch) whereas petitioner was selected for the post of District Food 6 Supplies Controller as per his second preference. It is alleged that even after the selection, the appointments were delayed for a long time. Petitioner further states that he came to know that the respondent- State was making appointments to the PCS (Executive Branch) against five advertised vacancies as per Annexure P-2 and was not making appointments against the 16 vacancies advertised vide Annexure P-l, the first advertisement notice. Petitioner claims to have submitted a representation dated, 16.01.1989 seeking his consideration for appointment to 16 posts of PCS (Executive Branch) advertised vide Annexure P-l. Receiving no response, he made number of other representations. Some of such representations have been placed on record. According to the petitioner, none of the representations has been decided. The petitioner was offered appointment as District Food & Supplies Controller for which he was selected as second preference. Petitioner joined his post of District Food & Supplies Controller on 22.06.1989. 2. The petitioner has filed this petition seeking his appointment against one of the vacancies for PCS (Executive Branch) on the basis and ground notice hereunder: (i) As many as 16 vacancies were advertised vide Annexure P-1 and 5 more vide Annexure P-2 total 21 but respondents have filled up only 5 vacancies and remaining 16 vacancies remained unfilled and the petitioner being at Sr. No. 7 on the select list had has the right to be appointed against one of the advertised PCS (Executive Branch) vacancies. (ii) There was cadre review of PCS (Executive Branch Class I Service) and w.e.f. 01.03.1989, 50 posts in the cadre of service (PCS) were increased vide notification (Annexure P-6A). Out of these 50 vacancies, 50% (25) were meant for direct.recruitment while remaining 50% (25) were to be filled up by method of nomination from amongst the subordinate services of the State. Thus 25 more vacancies were available at the time of appointment. 3. Out of these 50 vacancies, 50% (25) were meant for direct.recruitment while remaining 50% (25) were to be filled up by method of nomination from amongst the subordinate services of the State. Thus 25 more vacancies were available at the time of appointment. 3. As far as first contention of the petitioner is concerned, from the notification Annexure P-l, it appears that the number of vacancies mentioned were provisional and subject to variation. In the second notification 5 PCS (Executive Branch) vacancies have been notified. This notification further contains a stipulation that the number of posts are subject to variation. The contention of Mr. Rajiv Atma Ram, Sr. Advocate is that the first notification was not superceded by the second notification rather the second notification was issued to supplement the first notification and thus the five vacancies were the additional notified vacancies and thus in all, there were 21 vacancies available fof PCS (Executive Branch),service. The respondents having notified 21 vacancies, have filled up only 5. The petitioner being at Sr. No. 7 in the merit list had has a right to occupy one of the vacancies of PCS (Executive Branch), which was his first preference. In the second notification, it is specifically mentioned that those candidates who applied earlier in response to the first advertisement need not apply again. However in Para 4 of the writ petition, the petitioner specifically stated that he applied afresh in response to the second advertisement notice and he was issued a fresh roll number. This clearly indicates that the petitioner surrendered and abandoned his first application and his application was in response to the second advertisement. In absence of the reply of the respondents, it cannot be ascertained as to whether the total number of vacancies advertised and were available for recruitment as notified in the second notification i.e. five or combined notified in both the notifications i.e., 16-5-21. It has been urged on behalf of the petitioner that there is no stipulation in the second notification that this is in supersession to the first notification. At the same time, it also does not contain any condition that this is in supersession to the first notification. Be that as it may, the petitioner having applied afresh cannot take the. benefit of both the notifications. At the same time, it also does not contain any condition that this is in supersession to the first notification. Be that as it may, the petitioner having applied afresh cannot take the. benefit of both the notifications. There is no material on record to substantiate the contention of the petitioner that 21 posts of PCS (Executive Branch) were available for recruitment According to the petitioners own averment only 5 vacancies were filled up. It can thus be presumed that only five vacancies were available for recruitment as on the date of issuance of the second notification on .05.09.1987. This fact is further strengthened from the averments made in the writ petition itself wherein the petitioner has stated that 50 more va-cancies were created and sanctioned w.e.f. 01.03.1989. It is not the case of the petitioner that 16 vacancies which were available were filled up during the interregnum between the issuance of the second notification and the creation of new vacancies. Though Mr. Rajiv Atma Ram has orally argued that according to his information, 16 vacancies which were originally advertised, were filled up on the basis of the select list prepared in the earlier examination before the issuance of notification (Annexure P-1). According to him, those vacancies could not have been filled up on the basis of the earlier selection when these vacancies were duly notified for recruitment. There may be substance in the argument, however, in absence of any such material on record, it is not possible for this Court to examine this issue. Under the totality of the circumstances, I am of the opinion that only 5 vacancies were available for recruitment on the date of second notification. 4. With a view to substantiate the second contention, Mr. Rajiv Atma Ram has referred to and relied upon notification Annexure P-6A to show that 50 more vacancies of PCS (Executive Branch) were sanctioned. These additional vacancies were sanctioned/created w.e.f. 01.03.1989 for a period of three years. The appointment on the basis of the advertisement Annexures P-1 and P2 was made vide order dated 21.06.1989. Therefore, these vacancies were available before the appointment was made. Mr. Rajiv Atma Ram has relied upon Government instructions issued vide Circular dated 22.03.1957. According to him, this Circular was and is still in vogue. The appointment on the basis of the advertisement Annexures P-1 and P2 was made vide order dated 21.06.1989. Therefore, these vacancies were available before the appointment was made. Mr. Rajiv Atma Ram has relied upon Government instructions issued vide Circular dated 22.03.1957. According to him, this Circular was and is still in vogue. This Circular provides for filling up of the anticipated vacancies upto the period of six months from the date of preparation of the select list. The relevant extract of this circular reads as under: "With the Administrative Secretaries to Government, Punjab kindly refer to the procedure noted as subject, circulated with Punjab Government letter No. 814- GS-37/323/-S, dated June, 1937 and subsequent correspondence contained in Punjab Government letter No. 459671178-GS-37/9276 dated the 10th September, 1937 and letter No. 475 P.S.C.37, dated the 12th July, 1937 from the Secretary Punjab and North West Frontier Province, Joint Public Service Commission, reproduced on pages 29 to 35 of the booklet entitled Regulation and Instruction governing the work of the Provincial Public Service Commission in the Punjab. In paragraph 5 of the Public Service Commission, letter No. 475- P.S.C.37 dated the 12th July, 1937 at page 35, a time limit of 6 months has been prescribed for filling up out of the names recommended by the Public Service Commission additional vacancies which were not intimated to the Public Service Commission when inviting recommendations. After the expiry of six months a fresh reference to the Public Service Commission will be necessary to fill up an additional vacancy not intimated to the Commission earlier. Government have noticed that there is no uniformity regarding the observance of this time limit. They desire that the procedure outlined above should be rigidly adhered to. The time limit of six months will not however, apply to a case where a candidate had declined to accept the post offered to him against a vacancy which was intimated to the Public Service Commission. Such a vacancy can be filled up even after the expiry of six months out of the approved list of candidates initially received from the Commission." 5. Both the advertisement notices have indicated that the vacancies advertised are subject to variation and thus, the anticipated vacancies in terms of the Circular dated 22.03.1957 cannot be ruled out. Such a vacancy can be filled up even after the expiry of six months out of the approved list of candidates initially received from the Commission." 5. Both the advertisement notices have indicated that the vacancies advertised are subject to variation and thus, the anticipated vacancies in terms of the Circular dated 22.03.1957 cannot be ruled out. The validity of this Circular and its operational status and enforceability came to be considered by the Honble Apex Court in case of Virender S. Hooda and others vs. State of Haryana and another, JT 1999(5) SC 621:- ".......The fact that there were further vacancies available and when 9 vacancies were advertised to be filled up within a period of six months after announcement of the previous selection cannot be disputed at all. In terms of circulars issued by the Government on March 22, 1957 and May 26, 1972 when such vacancies arise within six months from the receipt of the recommendation of the Public Service Commission they have to be filled up out of the waiting list maintained by the Commission. In respect of the vacancies which arise after the expiry of six months it is necessary to send the requisition to the Commission. It is also made clear that if the Commission makes recommendations regarding a post to the department and additional vacancies occur in the department within a period of six months on the receipt of the recommendations, then the vacancies which occur later on can be filled in from amongst the additional candidates recommended by the Commission. It is urged on behalf of the appellants that letter dated January 7,1992 indicated that the cadre strength in the Haryana Civil Service (Executive Branch) which was 440 and the officers filling these posts were around 129 and there was shortfall of 111 and 23 posts had to be filled up by direct recruitment. Thus 12 posts for direct recruitment were vacant when the advertisement for recruitment was made which was held in 1.991. Therefore, the appellants case ought to have been considered when some of the vacancies arose by reason of non-appointment of some of the candidates. Therefore, the Government ought to have considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection. Therefore, the appellants case ought to have been considered when some of the vacancies arose by reason of non-appointment of some of the candidates. Therefore, the Government ought to have considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection. Thus when these vacancies arise within the period of six months from the date of previous selection the circulars are attracted and hence the view of the High Court that vacancies arose after selection process commenced has no relevance and is contrary to the declared policy of the Government in the matter to fill up such posts from the waiting list. The view taken by the High Court that the administrative instructions cannot be enforced by the appellant and that vacancies became available after the initiation of the process of recruitment would be looking at the matter from a narrow and wrong angle. When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same....." 6. Mr. Rajiv Atrna Ram has further referred to the relevant rules namely Punjab Civil Service (Executive Branch) Class I Rules, 1976. It is admitted position that when the advertisements for recruitment were issued, the recruitment to the PCS (Executive Branch) Class I Service was governed and regulated by these Rules. Some of the rules relevant for the purpose of this petition are quoted here as under: "Rule 7. Appointment to the Service shall be made in manner herein provided from amongst accepted candidates whose names have been duly entered in accordance with these rules in the Registers of accepted candidates to be maintained under these rules. 8. Some of the rules relevant for the purpose of this petition are quoted here as under: "Rule 7. Appointment to the Service shall be made in manner herein provided from amongst accepted candidates whose names have been duly entered in accordance with these rules in the Registers of accepted candidates to be maintained under these rules. 8. The following Registers of accepted candidates shall be maintained by the Chief Secretary to Government, Punjab namely: (1) Register A-l in which shall be entered the names of Tehsildars and Naib- Tehsildars accepted as candidates, (2) Register A-lI in which shall be entered the names of temporary members of Class II and members of Class III Services serving in connection with the affairs of the State of Punjab and holding ministerial appointments accepted as candidates; (3) Register A-lll in which shall be entered the names of persons accepted as candidates from amongst Excise and Taxation Officer, Block Development and Panchayat Officers and District Development and Panchayat Officers serving in connection with the affairs of the. State of Punjab. (4) Register B in which shall be entered the name of persons accepted as candidates as a result of the [the main competitive examination] and (5) Register C in which shall be entered the names of persons accepted as candidates from amongst officers or officials serving in connection with the affairs of the State of Punjab, who are not covered by any of the categories of officers or officials hereinbefore mentioned in this rule. 14. Subject to the provision of [Rules 13 and 13-A] Government shall include in Register B in order of merit determined by the Commission, the names of such number of candidates as it may, from time to time, determine from amongst those who have been declared as qualified in the [main competitive examination] by the Commission. 18. 14. Subject to the provision of [Rules 13 and 13-A] Government shall include in Register B in order of merit determined by the Commission, the names of such number of candidates as it may, from time to time, determine from amongst those who have been declared as qualified in the [main competitive examination] by the Commission. 18. The Government shall make appointments to the service in pursuance of Rule 7 from amongst the candidates entered on the various registers in a slab of 100 vacancies as follows: (i) the first vacancy and thereafter every alternative vacancy shall be filled from amongst candidates borne on register B. (ii) the 2nd, 8th, 14th, 20th, 26th, 32d, 38th, 44th, 50th, 56th, 62nd, 68th, 74th, 80th, 86th, 92nd, 96th and IV vacancy shall be filled from amongst the candidates borne on Register A-l. (iii) the 4th, 10th, 16th, 22nd, 28th, 34th, 40th, 46th, 52nd, 58th, 64th, 70th, 76th, 82rd, 88th and 98th vacancy shall be filled from amongst candidates borne on Register A-lI. (iv) the 12th, 30th, 42nd, 54th, 66th, 78th, and 90th vacancy shall be filled from amongst the Excise and Taxation officers accepted as candidates on Register A-lll. (v) the 18th, 36th, 60th and 84th vacancy shall be filled from amongst the District Development and Panchayat Officers or Block Development and Panchayat Officers accepted as candidates on Register A-lll; and (vi) The 6th, 24th, 48th, 72nd and 94th vacancy shall be filled from amongst the candidates on Register C. 19. Candidates on the same Register shall be appointed to the service in the order of merit assigned to them by the Commission while selecting as a batch for that particular Register." 7. Rule 7 above provides for making appointments to the service from amongst accepted candidates whose names have been duly entered in the register of accepted candidates to be maintained under these Rules. 8. Rule 8 deals with the maintenance of registers and entering of names of candidates who are selected under different categories. Register B is the one wherein the names of of the direct recruits who have qualified the main competitive examination are entered. 9. Rule 14 further provides for names in Register B in the order of merit determined by the Commission, who are declared qualified in the main competitive examination. Register B is the one wherein the names of of the direct recruits who have qualified the main competitive examination are entered. 9. Rule 14 further provides for names in Register B in the order of merit determined by the Commission, who are declared qualified in the main competitive examination. Reference to Rules 13 and 13-A is made in this rule, which deals with the holding of competitive examination. 10. Rule 18 deals with the appointment to the service on the basis of names entered in various registers in a slab of 100 vacancies. Sub-Clause (i) of this Rule provides for filling up of first and thereafter every alternative vacancy from amongst the candidates borne on Register B. 11. Rule 19 requires the appointment in the order of merit assigned to them by the Commission. Rule 20 provides for cancellation of appointment if the appointee is unable to join within one month from the date of receipt of the order of appointment. 12. From the conjoint reading of these rules, it appears that Register B is made for the selectees who are selected on the basis of the competitive examination. It appears that the petitioner was selected on the basis of competitive examination and his merit was at Sr. No. 7 in the combined merit list for various services. His first preference was PCS (Executive Branch). In view of Rule 18, the 1 st 3rd, 5th 7th, 9th, 11th and similarly every alternative vacancy in a slab of 100 dependent upon the availability of vacancy, goes to a selectee whose name is entered in the Register B. Petitioners name was at Sr. No. 7. it is petitioners own admission that 50% vacancies were made for the reserved categories in the advertised 5 vacancies. On the basis of the Government Circular dated 22.03.1957, 25 vacancies out of 50 sanctioned on 01.03.1989 should have been filled up from the waiting list of the candidates who are selected pursuant to the advertisement (Annexure P-1 and P-2). These additional 50 vacancies could have been utilised for waiting list candidates in view of the Government Circular referred to above and judgment of the Honble Apex Court in VirenderS. Hoodas case (supra). 13. 25% of these 50 additional sanctioned vacancies were meant for reserved categories and 25% for General Category. Petitioner belongs to General Category. His merit was at Sr. Hoodas case (supra). 13. 25% of these 50 additional sanctioned vacancies were meant for reserved categories and 25% for General Category. Petitioner belongs to General Category. His merit was at Sr. No. 7 and thus he definitely falls within next 25 vacancies which were additionally sanctioned on 01.03.1989 i.e. within six months from the date of selection made by the Punjab Public Service Commission. Petitioner had a right of consideration against these 25 vacancies on the basis of his merit and preference given by him. In absence of the counter-affidavit filed by the respondents, averments in the writ petition are taken to be true. Thus there is no dispute that the petitioners first preference was PCS (Executive Branch). It is also established on record that 50 more vacancies were created before the final selection and 25 out of 50 were for direct recruitment. These vacancies in fact were required to be taken into consideration upto six months of selection. Thus these vacancies both for General and reserve categories could be utilized to adjust waiting list candidates i.e. next in merit on the basis of their preference for direct recruitment. Petitioner was at Sr. No. 7 of Select List and his preference was for PCS. He was sure to get PCS if these vacancies had been utilized. As a matter of fact petitioner had has a right to be considered for appointment against these additional vacancies upto six months of selection. Such consideration has been denied to the petitioner without any lawful and valid reason. 14. In view of the above factual and legal position, this petition is allowed. Respondents are directed to consider the petitioner for appointment against PCS (Executive Branch) w.e.f. the date of his appointment and if the petitioner does not suffer any disqualification, he may be given such appointment with all consequential benefits of seniority on the basis of his merit. Since the petitioner was selected in the earlier selection, he will have to rank senior than those who may be appointed in subsequent selections.