- (1.) This writ petition has been filed by Shri Satish Kumar under Articles 226 and 227 of Constitution of India for a writ in the nature of quo warranto directing Shri H.S. Bains, respondent No. 2, to vacate the public office of Industrial Adviser-cum-Additional Director in the Industries Department, Punjab, which was illegally usurped by him without compliance of the statutory rules and in infringement of Article 16 of the Constitution.
(2.) Three posts of Technical Experts in the Industries Department, Punjab, in the pay scale of Rs. 1300-1800 were created in September, 1959 vide Annexure P.1. These posts were (i) Technical Expert (Production Engineering), (ii) Technical Expert (Chemical Engineering) and (iii) Technical Expert (Mechanical Engineering). With the constitution of Punjab Public Service Commission, one Shri S.S. Gill was appointed to the post of Technical Expert (Production Engineering) in August 1961. In October, 1966, under Article 309 of the Constitution, the Punjab Industries Service (State Service Class I) Rules, 1966 were framed. Posts in the Service were shown in Appendix 'A' attached to these rules. The aforesaid three posts were included in the Service which were to be filled by direct recruitment under Rule 9 of the aforesaid rules. The pay scale fixed was Rs. 1300-1800. Qualifications for the post of Technical Expert (Production Engineering) were given in Appendix 'B' attached to the rules. The aforesaid post was re-designated in April, 1968 as Industrial Adviser though no amendment in the rules was made. This was done vide order, Annexure P-2. In 1969, this post was again designated as Technical Expert (Production Engineering) vide Annexure P-3. As per terms of the Punjab Public Service Commission (Limitation of Functions) Regulations, 1955, aforesaid post was to be filled up through the Punjab Public Service Commission. On the retirement of Sh. S.S. Gill, a requisition was sent to the Commission in July, 1975 for filling up the vacancy by direct recruitment. The Commission advertised the post in November, 1975. The pay scale at Rs. 1600, as given to Shri Gill, was adopted without any formal order as shown in the advertisement, Annexure P-4. In October, 1976, the candidates for the post were interviewed but no selection was made. The Commission, however, recommended to the State Government to revise the pay scale of the post of Rs. 2,000-2,500 and that the post be re-advertised. The State Goverment did not accept the recommendation regarding revision of pay scale. However, Industries Department of the Punjab Government advertised the post of Industrial Adviser temporarily on ad hoc basis for a period of six months or till its recruitment through the Commission. The advertisement is dated May 15, 1977 (Annexure P-5). In all, twelve candidates applied for the post, whose names are given in the writ petition. They were interviewed on June 8, 1977. However, no selection was made. The State Goverment decided to enlarge the scope of selection for the post of Industrial Adviser and decided to re-advertise the post which was done in January, 1978. It was indicated in the advertisement that the persons who had already applied need not apply afresh and their previous applications would be considered. The pay scale advertised was the same and the recruitment was to be made on ad hoc basis for a period of six months or till recruitment through the Commission. Seven more candidates applied in response to the said advertisement. Sh. H.S. Bains, respondent No. 2, was one of them. Out of the candidates who had applied, six were not called for interview; others were interviewed and in the order of merit, the following three persons were selected :- (1) Shri Harbhajan Singh Bains (respondent No. 2). (2) Shri Jasbir Singh Dhillon. (3) Shri P.D. Sharma. Shri H.S. Bains, respondent No. 2, was issued an appointment letter on April 24, 1979 in the pay scale of Rs. 1300-2000 with a start of Rs. 1600. Copy of the appointment letters is Annexure P-7. Twenty days' time was allowed to join, which period was subsequently extended upto November 30, 1979. Shri H.S. Bains did not join. At that time, he was posted in Haryana State Small Industries and Export Corporation. He persuaded the said Corporation to give him pay scale and status equivalent to the officer made by the Punjab Government. The post he was holding then was upgraded to General Manager (Technical) in the Corporation in the pay scale of Rs. 1800-2000 which he joined on June 18, 1978. Simultaneously, he requested the Punjab Government for this regular appointment against the post of Industrial Adviser. In the meantime, the State Government had issued a letter of ad hoc appointment to the second candidate Shri Jasbir Singh Dhillon. He also did not join. No appointment letter was sent to the third candidate in line, namely Shri P.D. Sharma. The Punjab Government, however, started processing the case for a regular appointment of Shri H.S. Bains, respondent No. 2. After correspondence with the Public Service Commission, the Punjab Government withdrew the post of Industrial Adviser from the purview of the Commission, vide order dated October 4, 1980, Annexure P-8. As per allegations in the petition, this was done as the Punjab Public Service Commission did not accede to the request of the Government for recommendation by the Commission for regular appointment of Shri H.S. Bains. On October 13, 1980, Shri H.S. Bains was offered regular appointment in the pay scale of Rs. 2300-2500 vide order, Annexure P-9. On October 15, 1980, Shri H.S. Bains joined in the Industries Department on the said post. Thereafter, Shri Bains represented that he was getting total emoluments of Rs. 3200 and he requested the Goverment to allow him pay scale of Rs. 2500-2750 with starting salary of Rs. 2625. This request was accepted vide order dated March 6, 1981 with effect from October 15, 1980, the date Shri Bains joined. Copy of the order in Annexure P-10. Subsequently, on the request of Shri Bains, the post of the Industrial Adviser was re-designated as Industrial Adviser-cum-Additional Director of Industries with effect from September 23, 1982. This was done without making any amendment in the Service Rules. Vide order dated October 16, 1982. Shri Bains was confirmed against the post of Industrial Adviser on completion of two years' probation. Copy of the order is Annexure P-12. According to the petitioner, this was done ignoring the Service Rules. The appointment of Shri Bains was alleged to be in violation of Rule 9(g) of the Service Rules as well as in violation of Article 16 of the Constitution.
(3.) The writ petition is contested by the State of Punjab as well as by Shri H.S. Bains on the ground of laches as well as on merits. They asserted that the petitioner had no locus standi to file the writ petition as he himself was not fulfilling the requisite qualifications prescribed for the post. On merits, broad facts are not disputed. However, it is asserted that the appointment of Shri Bains was in accordance with the rules and after due advertisement he was selected. It was admitted that after the post was taken out of purview of the Public Service Commission and it was decided to fill the post on regular basis, but no fresh advertisement was issued.;