RAJ BAHADUR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) IN this bunch of 4 writ petitions similar questions of law and facts arise for our determination.

(2.) RECRUITMENT to the Punjab Civil Service (Executive Branch) (for short the Service) is governed by the Punjab Civil Service (Executive Branch) (Class -1) Rules, 1976 (hereinafter referred to as the Rules). The Service consists of such number of posts as the Government may from time to lime determine keeping in view the requirements of the service. All appointments to the service are made by the Government in consultation with the Punjab Public Service Commission (for short the Commission) and these appointments are made from amongst the accepted candidates whose names have been duly entered in accordance with the Rules in the Registers of accepted candidates which are maintained by the Chief Secretary to the Government, Punjab. We are concerned with Register A -II in these writ petitions in which are entered the names of temporary members of Class -II and members of Class -111 services serving in connection with the affairs of the State of Punjab and holding ministerial appointments. According to the Rule 10 of the Rules each of the authorities specified in the table contained therein is to nominate such number of persons as specified in the second column of the table from amongst the temporary members of Class -II service and members of Class -III service holding ministerial appointments and working in its office or in the offices subordinate to it. The nomination rolls are submitted to the Government which are forwarded along with the service record of the candidates to the Commission which considers the merits of each such candidate and recommends such of them as are considered suitable for appointment to the Service. The names of persons recommended by the Commission are then entered in Register A -II in the order in which they are recommended. The State Government proposed to fill up 50 vacancies to the Service which included 9 vacancies to. be filled from Register A -II and sent a requisition in this regard to the Commission on 4.6.1993. In pursuance to this requisition, a circular dated 24.6.1993 was issued to the concerned authorities to recommend the names of the suitable and eligible candidates in the prescribed form. Petitioner who is working as a Private Secretary in the Public Civil Secretariat at Chandigarh since 5.7.1995 was nominated by the then Minister of State for Rural Development and Panchayats. The names of all the nominated candidates including that of the petitioner were forwarded to the Commission for being considered for appointment to the Service and they were interviewed on 27th and 28th September, 1994. The Commission considered the merits of all the nominated candidates and prepared a merit list on the basis of marks secured by each of them. The result of the interviews was declared on 11.10.1994 and the list of selected candidates was displayed on the notice board. The first 9 candidates in the merit list as prepared by the Commission were recommended to the Government for appointment and the 9 vacancies as notified to the Commission were then filled up. A copy of that merit list is Annexure P -3 with the writ petition. The name of the petitioner appears at serial No. 12 on this merit list. It will be noticed that two candidates, namely, Gurjit Singh and Harjinder Singh Sodhi are at serial Nos. 10 and 11 of the merit list and are immediately above the petitioner. Even before the result of the selection was declared by the Commission the State Government sent another requisition on 27.9.1994 proposing to fill up another 14 vacancies in the Service out of which 3 were to be filled up from Register A -II. The specified nominating authorities were requested to make nominations of eligible persons as per circular letter dated 24.3.1995. These vacancies pertained to the year 1995. The contention of the petitioner is that the 3 additional vacancies having arisen within six months from the date of the recommendations made by the Commission or even before that, the State Government ought to have filled up those vacancies from the merit list prepared by the Commission on the basis of the result declared on 11.10.1994 in regard to the earlier selection and his grievance is that this has not done and, therefore, the Government acted in contravention of the instructions issued by the composite State of Punjab on 22.3.1957 which were then in force. According to the petitioner, if the State Government had filled up the additional vacancies from the earlier merit list prepared by the Commission, he would have been one of the persons who would have been selected as his name figures at serial No. 12 of that list as is clear from Annexure P -3. Petitioner is said to have represented to the State Government on 3.9.1996 and again on 24.3.1997 but there was no response from the side of the Government. Another representation was made on 19.5.1999 bringing to the notice of the State Government the decision of the Supreme Court in Virender Singh Hooda and others v. State of Haryana and another, 1999(2) SCT 652 (SC) :, 1999(2) SLR 191. Since the Government did not respond favourably the petitioner filed the present writ petition on 18.8.1999 challenging the action of the Government in not appointing him against one of the 3 additional vacancies as, according to him, he was the 3rd on the merit list after the first nine candidates, had been appointed against nine vacancies notified earlier. The writ petition came up for hearing on 24.8.1999 when not ice of motion was issued at the respondents and it was ordered that the appointments, if any, made during the pendency of the writ petition would be subject to its final outcome. Before we deal with the reply filed by the respondents, it is necessary to mention that Gurjit Singh who was at serial No. 10 on the merit list had filed civil writ petition No. 12294 of 1996 in this court challenging the nomination of Gurdeep Singh who was appointed to the Service in pursuance to his name having been recommended for appointment by the Commission. He also sought a mandamus directing the respondents to appoint him to the service against one of the three additional posts which became available even when the process of selection for preparation of the select list was going on and for which a requisition had been sent to the Commission on 27.9.1994. As already noticed, these three additional vacancies pertained to the year 1995. He relied upon the Government circular dated 22.3.1957 which, according to the petitioner therein, entitled him to be considered for appointment against any additional vacancies occurring within six months which were not intimated to the Commission. The writ petition was dismissed on 16.1.1997 by a Division Bench of this court holding that the petitioner therein did not acquire a right to be appointed against one of the three posts which became available subsequently. According to the Division Bench the right of the petitioner therein to be considered for appointment was confined to the posts for which a requisition was sent in the year 1993. The learned Judges of the Division Bench took the view that the recommendations in excess of the advertised posts could not ordinarily be made and the waiting list prepared by the Commission or other selecting agencies could be utilised only for the making appointments against the posts which remain unfilled due to non -joining of the selected candidates. A Special Leave Petition filed against this judgment was dismissed by the Apex Court on 5.12.1997 and their Lordships observed as under :

(3.) IN response to the notice of motion issued by this court, the respondents have filed their reply. Shri Satinder Pal Singh, Special Secretary to the Government of Punjab, Department of Personnel has admitted on behalf of the State Government that as per instructions dated 22.3.1957 a time limit of six months has been prescribed for filling up out of the names duly recommended by the Commission additional vacancies which were not intimated to it when inviting recommendations. It is stated that the time limit of six months would not apply to a case where a candidate had declined to accept the post offered to him against a vacancy which was intimated to the Commission. Such vacancy, according to the State Government, could be filled up even alter the expiry of six months of the approved list of candidates initially received from the Commission. It is pleaded that the name of the petitioner had never been recommended by the Commission and that the time limit of six months expired on 10.4.1995 because the names of the nine selected candidates were recommended by the Commission on 11.10.1994. It is further pleaded that since none of the selected candidates declined to accept the post the question of offering any post to the petitioner after the expiry of six months did not arise. While referring to the judgment of the Supreme Court in Virender Singh Hooda's case (supra), it is averred that the same is applicable prospectively and cannot be applied retrospectively to the recruitment process which stood finalised in the year 1994 particularly when the plea of the applicability of the instructions dated 22.3.1957 to the said recruitment had been negatived by this Court in the writ petitions filed by the Gurjit Singh and Har - jinder Singh Sodhi. Reference has also been made to sub -rule (3) of Rule 10 of the Rules and it is stated that the Commission is required to recommend such of the candidates as are found suitable for appointment to the Service and since nine candidates were recommended it has to be presumed that the others including the petitioner were not found suitable for appointment. The Commission in its reply has stated that the petitioner was a candidate for appointment to the service from Register A -II in the year 1994 and that his name was among the candidates who had not been selected. It is submitted that two other candidates who were higher in merit than the petitioner had already urged their claim before this court and their cases were dismissed and, therefore, the petitioner is not entitled to the relief claimed by him. According to the commission, the selection process came to an end as soon as the advertised vacancies were filled up and the vacancies which occurred thereafter have to be filled up by a separate process of selection. It is contended that if the same list was to be kept alive for the purpose of filling up the vacancies that arise later, it would amount to deprivation of rights of other candidates who would become eligible subsequently. Reliance in this regard is placed on some judgments of the Supreme Court. During the pendency of the writ petition Sarvshri Gurjit Singh and Harjinder Singh Sodhi moved Civil Miscellaneous No. 3426 of 2001 under Order 1 Rule 8 -A of the Code of Civil Procedure seeking permission of this Court to intervene and take part in the proceedings. The prayer was granted and they were allowed to intervene.