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2013 DIGILAW 683 (HP)

Desh Bandhu Sood v. State of H. P.

2013-07-23

A.M.KHANWILKAR, KULDIP SINGH

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JUDGMENT A.M. Khanwilkar, Chief Justice (Oral): This common judgment will dispose of all the three petitions together. 2. The first petition was filed as Public Interest Litigation challenging the selection process and, in particular, the possible appointment of respondent No.3 Dr.Aparna Sharma as Deputy Director, DNA. The PIL originally proceeded on the assertion that the selection process was not properly conducted and including about the compentency of the members of the Selection Committee. However, during the pendency of the PIL, the petitioner therein made some investigation and was able to retrieve documents through RTI, on the basis of which, further grounds have been urged. At the end, however, the principal question that has been agitated by the petitioner in the PIL is about the eligibility and qualification of respondent No.3. According to the petitioner in PIL, the petitioner did not produce any evidence of specialization in DNA analysis/profiling. Secondly, the petitioner did not, in fact, possess 10 years post M.Sc. experience in DNA research training and analytical work. Therefore, respondent No.3 was ineligible to be considered for being appointed against the vacant post of Deputy Director, DNA. 3.Taking clue from the grounds urged in the PIL and the documents brought on record subsequently, the petitioner in Writ Petition No.5187 of 2010, who was working in the same Department as that of respondent No.3 Dr.Aparna Sharma, was tempted to file substantive petition challenging the selfsame selection process, essentially, on the ground of eligibility of Dr.Aparna Sharma, on same count. 4.The petitioner in the second petition, however, herself is not eligible nor possesses the qualification notified in the publication, dated 1st July, 2009, pursuant to which the selection process had commenced. Admittedly, the petitioner in the second petition did not participate in the selection process. In that sense, both the petitions ought to have been dismissed at the threshold on the basis of preliminary objection taken by respondent No.3 Dr.Aparna Sharma. Because of the pendency of these two petitions and interim relief granted by this Court, although the said Dr.Aparna Sharma was found to be eligible and was entitled to be appointed against the post of Deputy Director, DNA, appointment order was not issued by the Department, which compelled her to file independent Writ Petition before this Court seeking direction against the Department to issue appointment letter, being CWP No.4656 of 2010. 5. 5. Reverting to the first petition, it is well established position that no PIL should be entertained in respect of service matters in particular. That exposition can be discerned from paragraph 7 of the decision of the Apex Court in Gurpal Singh v. State of Punjab and others1. On that count alone, the first petition ought to have been dismissed at the threshold, which we are inclined to do now. 6. That takes us to the second petition filed by petitioner Dr.Meenakshi Mahajan, being CWP No.5187 of 2010. Counsel for the petitioner, to counter the preliminary objection about the locus of the petitioner and of maintainability, has placed reliance on the decision of the Apex Court in Lakhi Ram v. State of Haryana and others2, wherein, in paragraph 1, it was held that the contemporary employee/Government Officer would have locus to challenge the action of the Government expunging the adverse remarks in the Annual Confidential Report of another Government employee if that is likely to adversely affect the interest of that petitioner. Applying the same analogy, it is submitted that although the petitioner, in the present case, is herself not eligible and does not possess necessary qualification, has locus to challenge the appointment process of Dr.Aparna Sharma on the apprehension that if she was to be appointed against the post of Deputy Director, DNA, it would result in blocking her prospects for ever. 7.Assuming that this submission is tenable, the question is – Whether Dr.Aparna Sharma possesses requisite qualification, as provided in the publication dated 1st July, 2009. The essential qualification of candidate applying for the post of Deputy Director (DNA) has been stipulated in the said publication as under: “XI-(B) Name of Post(s): Deputy No.of Posts:-01 postDirector, DNA General.Class-I Gazetted. Pay Scale:- Rs.12000- Age:- Between 18-45 15,500/- years as on 01-01-2009 (enclose matriccertificate for age proof) Essential Qualifications:- At least 2nd class Master’s Degree in Molecular Biology/Human Biology/Human Generics/Bio Technology/Microbiology/Forensic Science/ Physical Anthropology/Bio Chemistry or equivalent from a recognized University with evidence of specialization in D.N.A. analysis/profiling. (ii) Ten years post M.Sc. Experience in DNA research training and analytical work. (Research work done for doing Ph.D. Degree shall be counted in total experience). Desirable Qualifications.: Ph.D. Degree with experience of working in D.N.A. Division of a Forensic Science Laboratory. (ii) Ten years post M.Sc. Experience in DNA research training and analytical work. (Research work done for doing Ph.D. Degree shall be counted in total experience). Desirable Qualifications.: Ph.D. Degree with experience of working in D.N.A. Division of a Forensic Science Laboratory. Desirable Qualifications common for all the posts i.e. item (1-XI-B):- Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in peculiar conditions prevailing in the Pradesh.” 8. To reassure itself, by way of interim order, this Court had directed the Principal Secretary (Home) to examine the correctness of the allegation made by the petitioners regarding eligibility of Dr.Aparna Sharma. It is not in dispute that the name of Dr.Aparna Sharma has been recommended by the Public Service Commission. That obviously has been done after due verification of eligibility of Dr.Aparna Sharma in all respects and being satisfied that she was qualified to occupy the post of Deputy Director , DNA. In view of the interim order passed by this Court, the Principal Secretary (Home) examined the entire issue afresh and after considering all the relevant documents, has stated, on affidavit, that he is satisfied that the said Dr.Aparna Sharma possesses essential qualification and was, thus, eligible for being considered to the post of Deputy Director, DNA. The correctness of the stand taken by the Principal Secretary (Home) has not been countered or put in issue before us except that the said conclusion cannot be reached on the basis of the stated documents. 9. Notably, Dr.Aparna Sharma merely took preliminary objection in the reply-affidavit filed to oppose the two writ petitions and including, to deal with the merits of the challenge in the PIL. However, some crucial aspect, which, obviously, was considered by the Public Service Commission as also by the Principal Secretary (Home) to find that the said Dr.Aparna Sharma was duly qualified to be appointed as Deputy Director, DNA, has not been specifically adverted in the reply- affidavit. That Dr.Aparna Sharma has now tendered further affidavit across the Bar during the hearing of this petition, which we permitted to do in the interest of justice keeping in mind the opinion already recorded by two Authorities, namely, the Public Service Commission as well as the Principal Secretary (Home) that Dr.Aparna Sharma is fully qualified to be appointed on the post of Deputy Director, DNA. The said Dr.Aparna Sharma has relied on the communication issued under the signature of Senior Administrative Officer for Director General, Indian Council of Medical Research, dated 29th January, 2007 and another communication, dated 20th March, 2007, issued under the signature of Section Officer, Institute of Microbial Technology and lastly, on the communication issued under the signature of Administrative Officer for Director General, Indian Council of Medical Research, dated 23rd February, 2009, to buttress her stand that she was rightly held to be qualified to be appointed against the post of Deputy Director, DNA. The communications and the certificates on which reliance was placed by the petitioner clearly disclose the qualification possessed by Dr.Aparna Sharma. She, as rightly held by the Public Service Commission as well as the Principal Secretary (Home), possesses necessary qualification specified in the publication, dated 1st July, 2009, which is reproduced hitherto. 10. Thus understood, even the second petition filed by the contemporary of Dr.Aparna Sharma deserves to be dismissed and as a consequence of dismissal of both these petitions, the petition filed by Dr.Aparna Sharma, being CWP No.4656 of 2010, ought to succeed for the same reasons. The Department will have to immediately take steps to issue appointment letter to appoint Dr.Aparna Sharma as Deputy Director, DNA, pursuant to the selection process commenced on the basis of publication, dated 1st July, 2009. 11. Besides dismissing the two writ petitions, referred to above, we also give liberty to Dr.Aparna Sharma to pursue appropriate remedy against the two petitioners, including claim for suitable damages, who was responsible to stall her appointment to the post of Deputy Director, DNA for almost three years. If such proceedings are resorted to by Dr.Aparna Sharma, we have no manner of doubt that the same will have to be decided on its own merits, in accordance with law. 12. We dismiss the two writ petitions filed by Dr.Desh Bandhu Sood and Dr.Meenakshi Mahajan on condition that they shall pay costs to Dr.Aparna Sharma quantified at Rs.15,000/- each within two weeks from today and report compliance thereof in the Registry within the same time, failing which, the Collector, Shimla shall recover the amounts from the respective petitioners as arrears of land revenue to be made over to Dr.Aparna Sharma. We make it clear that payment of costs will not absolve the said petitioners from the liability of damages and compensation to be paid to Dr.Aparna Sharma, if so directed in the proceedings to be resorted to by Dr.Aparna Sharma in that behalf. That will be independent remedy to be resorted to by Dr.Aparna Sharma. 13.The pending applications also stand disposed of, in view of the disposal of the main writ petitions.