R.S. Narula, J. - (1.) THIS is a petition under Article 226 of the Constitution for the issue of a writ in the nature of quo warranto for quashing the order of the Punjab Government dated January 30, 1970, appointing S.C Chadha, respondent No. 3, as the Senior Technical Officer (Textiles) in the Government Industrial Development cum -Service Centre for Textiles, Ludhiana (Annexure 'D' to the writ petition) and the further order of the Government dated July 21, 1970 (Annexure 'H') extending said appointment of respondent No. 3 for a further period of six months. The petitioner has also prayed under Articles 226 and 227 of the Constitution for a direction being issued to respondents 1 and 2 (The State of Punjab and the Director of Industries, Punjab) to fill in the post in question by departmental promotion instead of advertising the same. The brief facts leading to the filing to this petition may first be surveyed.
(2.) GURMEL Singh petitioner is admittedly a member of one of the scheduled castes, as recognized by the Punjab Government as well as by the Government of India. He had been appointed as an Assistant Superintendent, Quality Marking Centre (Textiles) on July 1, 1965, in the composite State of Punjab. As disclosed in the State's return, the petitioner was allocated to the Union Territory of Himachal Pradesh consequent on the bifurcation of the Punjab State under the Punjab Re organisation Act, 1966, Thereafter, he applied for the post of a Technical Manager (Textiles) Finishing Plant, Ludhiana, for which he was selected through the Punjab Public Service Commission. petitioner joined that post on August 1, 1968, in the time scale of Rs. 250 -25 -500. The petitioner is still working in that post According to the respondents, the lien of the petitioner on his earlier post in the erstwhile Punjab State stood terminated on his leaving the service of the Himachal Pradesh Administration and on his being appointed to a new post on being selected by the Public Service Commission for the same. For the purpose of deciding this case, it is unnecessary to travel into the merits of that contention. I proceed to decide this petition on the assumption that the petitioner's appointment to the post of Technical Manager in the Finishing Plant at Ludhiana was a new appointment. petitioner has filed, as Annexure 'A' to the petition, copy of letter dated April 26, 1969, from the Director Industries to the Senior Technical Officers, etc. with which the gradation list of the employees allocated to Punjab was sent for the information of the officers concerned. In the said gradation list showing the position as it stood on September 30, 1968 (Annexure 'A/1') the petitioner is shown as the solitary Technical Manager in the grade of Rs. 250 -25 -500. The post of a Senior Technical Officer was created by the Punjab Government in or about May. 1969. The petitioner represented to the Government for being promoted to that post. In Government's reply dated September 8, 1969 (Annexure B') the petitioner was informed that the appointment of the Senior Technical Officer was to be made through the Punjab Public Service Commission and the Commisson was being requested to advertise the post. petitioner was, therefore, advised to apply for that post through proper channel as and when the Public Service Commission invites applications. On September 10, 1969, the petitioner represented to the Government that instead of issuing an advertisement for the same the post should be filled by departmental promotion as one post of Senior Technical Officer already stood filled by direct appointment. After petitioner had issued a reminder dated December 23, 1969, in that connection, he received Government's reply dated January 9, 1996 (Annexure 'C') wherein it was stated that the matter was under consideration and that the petitioner would be informed of the decision taken in respect thereof. The question of filling the post by promotion is out of question, so far as I am concerned, as the Government has definitely averred in its return that the post is to be riled by direct appointment through the Public Service Commission and it is no one's right to compel the Government to change the mode of appointment unless the mode adopted by the Government is contrary to same statutory rules or established practice. The fact, however, remains, that the Government did not take appropriate legal steps to have the post in question filled by direct appointment through the Public Service Commission, Admittedly, no advertisement for the post has been issued till now. In all probability, the Public Service Commission was never actually asked to advertise for the post or to recommend any one for filling the same. What happened was that by keeping the petitioner at bay by telling him that the matter was under consideration and he would be informed of the Government's decision, the Government made appointment of respondent No. 3 on an ad hoc basis by letter dated January 30, 1970, (Annexure 'D') for a period of six months or till a candidate was recommended by the Public Service Commission, whichever was earlier. The petitioner was naturally upset by this under -hand dealing on the part of the Government and served a legal notice dated April 8, 1970, (Annexure 'E') on the Secretary to the Punjab Government in the Industries Department. In paragraph 12 of that notice the petitioner stated (through his counsel) that the facts disclosed in the notice showed that the Government was playing a fraud with him and also had kept him in dark white appointing respondent No. 3 on January 30, 1970, when the petitioner had been informed on January 9, 1970, that his case was under consideration. It was alleged that the impugned appointment was based on nepotism and favouritism and was, therefore, illegal, arbitrary and unconstitutional. In the notice, he claimed for being promoted and also desired that respondent No. 3, who was described as an illegal occupant of the post, should be removed from the post in question. The receipt of the notice was acknowledged in the letter of the Director of Industries dated June 11, 1970 (Annexure 'E/1') wherein the petitioner was informed that "the matter is under consideration of the Industries Department." The petitioner has also tried to show that respondent No. 3 was not fit for the job on which he had been appointed on extraneous considerations. In support of that claim the petitioner has filed, as Annexure 'F' to the petition, a copy of the order dated July 14, 1970, passed by Shri S.S Gill, Industrial, Adviser, Directorate of Industries, Punjab, reading as follows: It has been observed that the progress of the Textile Finishing Plant, Ludhiana, is deteriorating day by day since Shri S.C. Chadha has taken over the control of the Centre as Senior Technical Officer. It is, therefore, desired that Shri N.S. Sidhu, Senior Technical Officer, Quality Marking Centre (Textiles) Ludhiana should have over -all control (Technical control) of the Textile Finishing Plant, Ludhiana as done earlier. He should ensure that the monthly turn over is brought up to the same level as few months ago if not better. According to the averments in the petition, Mr. N.S. Sidhu referred to in the above quoted order, is still having charge of the post in question though salary for the same is being paid to respondent No. 3. The stand of the State in respect of these allegations is that the Industrial Advisor had no jurisdiction to pass order Annexure 'F' and that the Government has already directed the Industrial Advisor to withdraw the said order. The fact, however, remains that the order was passed and was actually implemented and according to the averments in the replication filed by the petitioner, the said order has not been withdrawn by the Industrial Advisor. Be that as it may. I am not concerned with a question of the efficiency or otherwise of respondent No. 3 It is for the Government to prefer an incompetent person over an available competent candidate or not to do so.
(3.) THE period of six months for which the ad hoc appointment of respondent No. 3 had been made expired on July 30, 1970 Despite the storm which had been raised by the petitioner and the admitted orders passed by the Minister In charge of the Industries Department (Annexure 'G'), which are quoted below, the Secretary to the Government issued the second impugned order (Annexure 'H'), in the name of the Governor, extending the appointment of respondent No. 3 for another period of six months: MIH (Minister, Industries and Health) his desired that further appointments of any candidates on ad hoc basis should be stopped. Office should ensure that appointment orders are not issued on any application, on which previously orders may have secured for appointment. The term of appointment of ad hoc appointees appointed in the past should not be renewed. A list of ad hoc appointees should be prepared at once for submission to MIH, showing the dates of appointment and the dates on which six months period has expired/will expire. Immediate steps should be taken to fill such posts on regular basis through competent authority. ad hoc appointees may as well be considered for regular appointments along with other applications which may be received in this connection, provided they fulfill the qualification.;