Sukhminderjit Singh Bajwa And ... vs State Of Punjab And Others
2022 Latest Caselaw 6231 P&H

CWP Nos. 16012 of 2019 (O & M) and other connected matters               1


       IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH


                                          CWP Nos. 16012 of 2019 (O & M)
                                                  CWP No. 22491 of 2019
                                                   CWP No. 7404 of 2020
                                           CWP No. 11739 of 2021 (O & M)
                                                 Reserved on: 01.06.2022
                                              Date of decision: 06.07.2022
213

Sukhminderjit Singh Bajwa and others                        ....Petitioner(s)


                                      Versus


State of Punjab and others                                 ....Respondent(s)

CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
       HON'BLE MR. JUSTICE VIKAS SURI

Present:    Mr. Rajesh Garg, Senior Advocate
            with Ms. Neha Matharoo, Advocate
            for the petitioner(s) (in CWP-16012-2019).

            None for the petitioners
                               (in CWP-7404-2020 & CWP-22491-2019).

            Mr. V.M.Gupta, Addl. A.G., Punjab.

            Ms. Monica Chhibbar Sharma, Advocte, for respondent No.5.
            Dr. B.R. Ambedkar Institute (in CWP-16012-2019).

            Mr. Gursimranjit Singh, Advoate
            for respondent No.6 (in CWP-16012-2019)
            and for the petitioner (in CWP-11739-2021).

                  ****

G.S.SANDHAWALIA, J.

The present judgment shall dispose of 4 civil writ petitions i.e.

CWP Nos. 16012 and 22491 of 2019 and CWP No. 7404 of 2020 and CWP

Nos. 11739 of 2021.

Challenge in CWP No. 16012 of 2019, Sukhminderjit Singh

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Bajwa and others vs. State of Punjab and others is to the Rule 6(2) as well

as Entry 7 of Schedule B of Punjab Medical Education (Group A) Service

Rules, 2016 (in short '2016 Rules') being ultra vires, illegal and having no

rational nexus to the object that is sought to be achieved. Similarly, the

same relief is also sought in CWP No. 22491 of 2019, Dr. Amarpreet Kaur

and another vs. State of Punjab and others. In CWP No. 7404 of 2020, apart

from the challenge to the Rule, challenge has also been raised to the list of

eligible and non-eligible candidates as per the list dated 25.02.2019

(Annexure P-3) issued by the Director Principal, Dr. B.R. Ambedkar State

Institute of Medical Sciences, SAS Nagar, Mohali, Punjab qua the

advertisement dated 26.02.2000 as the petitioners were stated to be eligible

candidates for recruitment to the post of Professors/Associate Professors in

the Department of Micro Biology, Pathology, Bio Chemistry and Anatomy.

In CWP No. 11739, Dr. Shivani vs. State of Punjab and others, the

petitioner seeks quashing of the subsequent advertisement dated 03.06.2021

(Annexure P-9) qua the Assistant Professor of Pharmacology and to declare

the result of the petitioner for the said post and to decide her

representations.

In view of various orders passed and developments which have

taken place and the necessary steps the State Government has taken since

the Rules have thereafter been amended on 08.01.2021, we are of the

considered opinion that the writ petitions have been rendered infructuous

whereby challenge to the Rule has been raised. However, on account of

interim orders passed, two candidates still are contesting for the benefit of

appointment to the post of Assistant Professor, Pharmacology namely Dr.

Gurleen Kaur, who is petitioner No.7 being impleaded as per application

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under Order 1 Rule 8(1) CPC i.e. C.M. No. 9096-CWP of 2019 in CWP No.

16012 of 2019 on 01.06.2022 and Dr. Shivani, who has filed CWP No.

11739 of 2021. In order to adjudicate on their respective rights, the

background will have to be referred to.

Initially, when the first writ petition by Sukhminder Singh

Bajwa was filed, the same was on the basis of the advertisement dated

25.02.2019 having been issued (Annexure P-3) wherein, applications for

direct quota of posts of Professors/Associate Professors and Assistant

Professors in various departments were invited as per the 2016 Rules. The

petitioners and the added petitioner No.7 were aggrieved against a common

condition in the Rules which are under challenge which prescribed the

requirement of teaching experience for a minimum period of 7 years after

completion of Post Graduation which included 4 years' experience as

Assistant Professors in the concerned specialty from a recognized post

graduate medical college. Thus, the grouse as such was that the requirement

of the eligible candidates to have teaching experience only in a post

graduate medical college was not justified. It had been brought out that

earlier the service was governed by the Punjab Medical Education Service

(Class I) Rules, 1978 and the experience of teaching was in a medical

college after requisite post graduate qualifications.

While issuing notice of motion on 31.05.2019, the petitioners

were permitted to appear in the interview provisionally and their result was

to be kept in a sealed cover. The provisional participation in the interview

would neither create any equity nor any right in favour of the petitioners.

C.M. No. 4248-CWP of 2020 was then filed wherein, it was mentioned that

two further advertisements dated 26.02.2020 had been issued advertising

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faculty post for Dr. B.R. Ambedkar State Institute of Medical Sciences at

Mohali and provisional participation was also sought which was allowed on

17.03.2020 on the same terms and conditions that the interim order would

not confer any right on the petitioners and they were allowed to submit their

applications for the posts which had been advertised. C.M. No. 9096-CWP

of 2019 in CWP No. 16012 of 2019 was then filed to permit various other

petitioners to pursue the writ petition in a representative capacity including

applicant Dr. Gurleen Kaur. The said application has now been allowed on

01.06.2022.

On 10.06.2020, it was brought to the notice of the co-ordinate

Bench that 95% of the applicants for direct recruitment of faculty have been

found ineligible in view of the condition of the experience of teaching in the

Post Graduate Medical Colleges as imposed by the 2016 Rules. The Court

had also been informed that the authorities were probably inclined to revisit

the issue of the said requirement, which would be substituted by any

medical college. Resultantly, the concerned Secretary was asked to file the

affidavit detailing the rationale/basis for incorporating the clause of the said

experience from a post graduate medical college and also why the Punjab

Public Service Commission had been excluded as a recruiting agency in

view of the mandate of Article 320 of the Constitution of India. Dr.

Ambedkar Institute was impleaded as respondent No.5 vide order dated

30.10.2020 keeping in view the fact that it was not a party in the writ

petition and there was a grouse that the petitioners had not been permitted to

join the process of selection and further process of selection was kept in

abeyance vide order dated 30.10.2020. On an application being filed for

vacation of stay order by the said institute, the same was allowed and stay

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was vacated so that the respondents could interview the petitioners with

interim orders in their favour and further complete the selection process.

The result as such was to be kept in a sealed cover, subject to the final

decision of the writ petition. No appointment letters were to be issued

without seeking prior permission of the Court and the result was to be

declared on provisional basis.

Vide order dated 27.08.2021, a co-ordinate Bench by a detailed

order discussed the background and noticed that the Rules of 2016 had been

amended vide notification dated 08.01.2021 and the position had been put

back as was prior to the Rules of 2016 and therefore, the petitioners had

become eligible as per Rules as amended in 2021. Resultantly, directions

were issued that the result be declared by opening the sealed cover and the

names of the successful candidates be declared as per merit. Accordingly,

C.M. No. 18714-CWP of 2021 in CWP No. 16012 of 2019 was filed by Dr.

Gurleen Kaur staking her claim to the post of the Assistant Professor,

Pharmacology being shown at Sr. No.1 of the merit list but ineligible

apparently on account of not having the teaching experience from a

recognized post graduate medical college. Similarly C.M. No. 1593-CWP

of 2022 in CWP No. 16012 of 2019 was filed by respondent No.6 namely

Dr. Shivani also seeking appointment to the same post being shown at Sr.

No.2 of the merit list and shown as eligible.

CWP No. 11739 of 2021 came to be filed by Dr. Shivani on the

ground that fresh advertisement had been issued on 03.06.2021 wherein, the

post of Assistant Professor had been advertised. It was her case that she

was an eligible candidate and had been called for interview but her result

had been withheld in view of the interim order passed in CWP No. 16012 of

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2019. Therefore, subsequent advertisement as such was leading to serious

prejudice to her rights and she was a qualified candidate who had been

called for interview on 07.06.2019. The said writ petition was ordered to be

heard alongwith CWP No. 16012 of 2019 on 05.07.2021. She accordingly

prayed for decision on her representations for appointment to the said posts.

The short stand of the State as such was that the case was

subjudice and the earlier advertisement was under challenge. The petitioner

was in the selection zone but she was second in position and the first

candidate had been shown to be ineligible and, therefore the appointment

order could not be issued. Dr. Gurleen Kaur, who was arrayed as

respondent No.6, took the stand that in view of the interim order dated

27.08.2021 passed by the co-ordinate Bench, the participation in the

interview provisionally would render her to be eligible and declaration of

the result was prayed for. Resultantly, it is held out by her counsel that the

re-advertisement dated 03.06.2021 was not justified and the position was

restored qua the eligibility of the said respondent, who had also been

interviewed and selected and she was the only meritorious candidate for the

sole post of Assistant Professor, Pharmacology which had been advertised.

Senior counsel, Mr. Rajesh Garg, while pressing C.M. No.

18714-CWP of 2021 submitted that by virtue of the interim orders dated

31.05.2019, she be given appointment as she stood first in the merit list and

she had also served a legal notice dated 24.11.2021. The same was

contested by Dr. Shivani that she was the sole eligible candidate as per the

advertisement dated 25.02.2019 and the amendment of 2021 could not relate

back to the posts advertised in the year 2019.

State, in its response, took the plea that the appointment orders

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could only be given if the writ petitions are decided in favour of either of

the petitioners.

Mr. Gursimranjit Singh, Advocate appearing for Dr. Shivani,

on the other hand, prays for orders in C.M. No. 1593-CWP of 2022 that

directions be issued to appoint his client and implement the result as

declared on 21.09.2021. Accordingly, it is submitted that the second

advertisement should not have been issued.

In our considered opinion, admittedly, the State has amended

the Rules on 08.01.2021, which was notified on 12.01.2021. The

requirement of the teaching experience is now only from a recognized

medical college. The grouse as such of the petitioners no longer subsists as

a fresh advertisement has also been issued.

Counsel for the State has submitted that on account of the

amendment, the fresh advertisement was issued on 03.06.2021 and 13

persons have applied under the new advertisement for the said post and,

therefore, all of them should be given a chance to apply against the same. It

is, thus, submitted that the earlier advertisement no longer stands good in

view of the amendment of the Rules and, therefore, challenge to the second

advertisement is without any basis. It is submitted that not only the said

post has been advertised but due to the litigation, the posts of 22 specialties

of Assistant Professors have now been re-advertised in contrast to the 64

posts which had been initially advertised. Only the present two applicants

are contesting whereas, others had applied in pursuance of the fresh

advertisement. It is submitted that even other counsels have not put in

appearance to contest CWP Nos. 22491 of 2019 and 11739 of 2021 as their

clients are no longer interested in pursuing the litigation.

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Ms. Monica Chhibber Sharma, counsel appearing for Dr.

Ambedkar Institute has pointed out from her reply that in pursuance to

advertisement dated 26.02.2020, certain persons had joined as Associate

Professors and posts which had been unfilled were readvertised on

06.01.2021, 02.04.2021 and 06.05.2021 and the petitioners in the said writ

petition had not applied for respective posts in the subsequent

advertisement. In pursuance of the re-advertisement also, persons had

joined.

C.M. No. 7757-CWP of 2021 in CWP No. 16012 of 2019 has

also been filed for declaration of result in which the reply of the State was

that the petitioner cannot be given appointment as the posts which had

remained unfilled had been readvertised with the permission of the

competent authority on 03.06.2021 in view of the amendment of the Rules.

It is pertinent to mention that senior counsel has not argued on

the issue of the validity of the Rules in any manner and had only restricted

his right on account of the fact that Dr. Gurleen Kaur was at Sr. No.1 in the

merit. In pursuance of the interim orders, while placing reliance upon the

result dated 21.09.2021, wherein she is stated to have got 69 marks whereas,

Dr. Shivani has got 65 marks but Dr. Gurleen Kaur has been held to be not

eligible, he has argued that a mandamus be issued in her favour for issuance

of an appointment order.

However, we are of the considered opinion that the petitioner

has no legal and vested right as such since the interim orders dated

31.05.2019 only granted her provisional protection as such and the said

orders will go with the final orders passed in the writ petition. It is settled

principle that interim orders merge in the final order. The interim orders are

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very explicit and clear that provisional participation in the interview would

neither create any equity nor any right in favour of the petitioners. The

orders dated 31.05.2019 and 17.03.2020 read as under:-

"Notice of motion.

Mr. Shireesh Gupta, Sr. DAG, Punjab, present in the Court, accepts notice on behalf of the respondents and prays for and is allowed six weeks time to file response/written statement.

Considering the facts and circumstances, in the meantime, the petitioners shall be permitted to appear in the interview provisionally and their result shall be kept in a sealed cover. However, their provisional participation in the interview shall neither create any equity nor any right in favour of the petitioners.

Adjourned to 26.08.2019."

xxx xxx xxx "Issue notice on the application to the non- applicants/respondents.

Service is waived, Ms. Lavanya Paul, learned Assistant Advocate General, Punjab having entered appearance and accepted notice on behalf of the respondents.

List on the date already fixed in the main case i.e. 19.03.2020.

In the meanwhile, in terms of the previous order passed by this Court, the applicants-petitioners may be permitted to submit their applications for the post which has been advertised.

It is made clear that this interim order would not confer any further right on the petitioners."

The State, in its wisdom, has chosen to amend the Rules and,

therefore, opened the criteria to a large number of persons and to restrict the

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field of competition only inter se the present applicants i.e. Dr. Gurleen

Kaur and Dr. Shivani, would not be justified in the facts and circumstances.

Merely because they had initiated litigation as such would not given them

any vested right to the post. It is settled principle that candidates only have

a right of consideration and no absolute right of appointment. Reliance can

be placed upon the judgment of the Apex Court in Shankarsan Dash vs.

Union of India, (1991) 3 SCC 47. The decision of the Government not to

fill up the posts from the two persons contesting cannot be said to be

arbitrary in view of the fact that on account of the amendment, fresh

advertisement has been issued and, therefore, the claim for appointment as

such by cutting out other persons who have become eligible cannot be

justified as such in any manner. Reliance can be placed upon the judgment

of the Apex Court in P. Suseela and others vs. UGC and others, (2015) 8

SCC 129 wherein, it was held that there would be no vested right for the

post till the time of appointment and it is only a right of consideration.

Similar view was also taken by the Apex Court in Kulwinder Pal Singh

and another vs. State of Punjab and others, (2016) 6 SCC 532 wherein,

claim was on account of respect of reserved category seats remaining

unfilled. It was accordingly held that merely because appellants had been

pursuing the matter for long, but appointment would be deprived to the

candidates who were not eligible for appointment, to the post on the date of

submission of the applications who had became eligible thereafter.

In Karnataka State Seeds Development Corporation Ltd. and

another vs. Smt. H.L. Kaveri and others, (2020) 3 SCC 108, the petitioner

had not enclosed the experience certificate and the writ petition was

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dismissed by the learned Single Judge. The order was reversed by the

Division Bench on the ground that the person had secured higher marks in

the qualifying examination for the post of Senior/Junior Assistant and mere

non-enclosure of the experience certificate of the applicant was not a

ground to deny her claim for consideration. The Apex Court held that 106

applications were rejected by the Corporation and, therefore, merely

because the petitioner had approached the Court would not mean that she

should be considered eligible in terms of the advertisement as it would

amount of over reaching the rights of the candidates who were otherwise

eligible for appointment.

In the present case also, by virtue of the amendment of the

Rules, the field has opened up to a large number of aspirants and as the

State has pointed out that they have received 13 applications, which is in

sharp contrast to the limited response on account of the onerous condition

which had been put in the 2016 Rules. Admittedly, the persons who did not

have the teaching experience of the post graduate medical colleges would

not have applied qua the earlier advertisement as they were never eligible.

Their right of consideration to the subsequent advertisement dated

03.02.2021 would be seriously prejudiced if the contest is restricted now

between Dr. Gurleen Kaur and Dr. Shivani. The State would also be denied

of the benefit of a better choice for appointment to the post of Assistant

Professor, Pharmacology. It is open to both the petitioners namely Dr.

Gurleen Kaur and Dr. Shivani to appear in pursuance of the fresh

advertisement as no relief can be granted to them herein. Accordingly, the

present writ petitions stand dismissed and the State shall proceed to fill up

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the posts and all interim orders stand vacated. All pending miscellaneous

applications stand disposed of in view of the above observations. The State

shall proceed to fill up the vacancies as per the fresh advertisement.

                                                     (G.S. SANDHAWALIA)
                                                             JUDGE



06.07.2022                                                 (VIKAS SURI)
shivani                                                       JUDGE


Whether reasoned/speaking                     Yes/No
Whether reportable                            Yes/No




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