Punjab-Haryana High Court

Kuljit Singh And Anr vs State Of Punjab And Ors on 3 July, 2023

                                                       Neutral Citation No:=2023:PHHC:083022




                                                                     2023:PHHC:083022



       In the High Court of Punjab and Haryana, at Chandigarh


                                             Civil Writ Petition No. 34912 of 2019

                                                        Reserved On: 03.05.2023
                                                     Pronounced On: 03.07.2023


Kuljit Singh and Another
                                                                       ... Petitioner(s)

                                           Versus

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

CORAM: Hon'ble Mr. Justice Anil Kshetarpal.

Present:     Mr. Raktim Gogoi, Advocate
             for the petitioner(s).

             Mr. R.S.Pandher, Senior Deputy Advocate General,
             Punjab, for the respondent No.1 to 4.

Anil Kshetarpal, J.

1. At the outset, it is important to note that though this writ

petition was filed by two petitioners, however, the writ petition qua

petitioner No.2 was dismissed as not pressed on 11.01.2021. Hence, the writ

petition survives only qua petitioner No.1.

2. While filing the writ petition, the petitioner prays for the

following substantive reliefs:-

"i) writ of certiorari quashing impugned order dated

08.11.2019 (Annexure P-29);

ii) writ of certiorari quashing impugned order dated

03.08.2018 (Annexure P-13) whereby the necessary sanction

for the appointment has been declined;

iii) writ of certiorari quashing order dated 30.01.2019

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(Annexure P-17) passed by Ld. Educational Tribunal, Punjab

in terms of order dated 24.01.2019 (Annexure P-16) dismissing

the petition;

iv) a writ of certiorari quashing order dated 25.04.2018

(Annexure P-24) said to have been issued on 24.05.2018 and

further said to have been issued to respondent No. 5 on

25.06.2018 (Annexure P-24) whereby the appointment of

Headmaster and Clerk was scrapped;

v) writ of certiorari quashing order dated 17.07.2019 and

22.07.2019 (Annexure P-21 and P-22) respectively whereby the

petitioners have been ordered to be relieved."

3. The relevant facts, in brief, are required to be noticed in order to

comprehend the controversy involved. The Managing Committee of the

Arya High School, Mandi Phool, Bhatinda, issued the recruitment notice in

the newspaper, namely "The Times of India" on 08.12.2017 inviting the

applications for the posts of the Headmaster and Clerk in the school against

the grant-in-aid post. Pursuant thereto, the petitioner and about 15 others

applied for the post of Headmaster. The petitioner No.1 was selected and

issued the appointment letter on 11.12.2017. On the next day i.e. 12.12.2017,

the petitioner joined. The school forwarded the matter to the competent

authority i.e. Director, Public Instructions, Punjab, for the grant of

approval/sanction to the appointment of the petitioner. The matter remained

pending with the Director, Education Department, Punjab. However, on

03.08.2018, the Director refused to grant approval on the ground that the

recruitment notice was not published in accordance with the Rule 7 of the

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Punjab Privately Managed Recognized School Employees (Security of

Service) Rules, 1981 (hereinafter referred to as "the 1981 Rules"), as the

recruitment notice is also required to be published in the Punjabi Newspaper.

On coming to know of the aforesaid objection, the management of the

school sought exemption on the ground that the recruitment notice was sent

for publication in two newspapers, however, it was inadvertently not

published in the Punjabi Newspaper and hence, such condition should be

relaxed. On coming to know of the order passed on 03.08.2018, the

petitioner filed Civil Writ Petition No. 26068 of 2018 which was withdrawn

vide order dated 12.10.2018. The respondent No.5 also preferred a petition

before the Punjab State Educational Tribunal, Mohali, seeking a direction to

relax the condition of publishing the recruitment notice in the vernacular

newspaper in view of the facts and circumstances of the case. The same was

disposed of on 24.01.2019 by directing the official respondents to consider

the matter as the error is of a technical nature. The petitioner also filed a

petition in the Punjab State Educational Tribunal, Mohali, seeking the relief

of setting aside the order dated 03.08.2018 while directing the official

respondents to relax the condition which was also disposed of on 30.01.2019

in terms of the order dated 24.01.2019. However, the official respondents

failed to take the decision forcing the petitioner to file the Civil Writ

Petition No. 8823 of 2019 which was again allowed to be withdrawn with

the liberty to pursue the case with the official respondents. In order to

remove the technical objection, the management of the school got published

a notice on 20.04.2019 in the Punjabi Newspaper, namely "The Sewak" but

no candidate came forward to apply. On 17.07.2019, the direction was

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issued to relieve the petitioner in case he marked his presence in the

attendance register. Once again, the petitioner filed a petition in the Punjab

State Educational Tribunal, Mohali, which was disposed of as not

maintainable on 18.09.2019. Once again, on 25.04.2019, the direction was

issued to relieve the petitioner. Once again, the petitioner filed the Civil Writ

Petition No. 29081 of 2019 for setting aside the order dated 03.08.2018

which remained pending. On 08.11.2019, the Director passed the detailed

order refusing to grant relaxation/exemption. Challenging all these orders,

the present writ petition was filed. The petitioner has withdrawn the Civil

Writ Petition No. 29081 of 2019 with the liberty to pursue the present writ

petition.

4. On the notice issued, a detailed reply by way of an affidavit of

the Deputy Education Officer (Secondary Education) has been filed. In

substance, it is claimed that there is an infringement of Rule 7 of the 1981

Rules, hence, the approval cannot be granted. With regard to the subsequent

recruitment notice published by the management on 20.04.2019 the official

respondents have not disputed the same, however, submit that such

publication does not validate the action of the respondent no.5 which is

patently against the Rule 7 of the 1981 Rules.

5. Heard the learned counsel representing the parties, at length and

with their able assistance, perused the paper-book as well as their written

arguments.

6. At this stage, it would be appropriate to reproduce the Rule 7 of

the 1981 Rules, which reads as under:-

"7. Appointing authority and method of appointment.- (1)

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All appointments to the aided posts shall be made by the

managing committee in the following manner:-

(i) Appointing authority shall advertise in both

English and vernacular daily newspapers in the

State, vacancy or vacancies to be filled in by

giving full particulars thereof including the

requisite qualifications, number of vacancies to be

filled in and the last date by which the applications

may be submitted;

(ii) the recommendations for appointment of the

candidates shall be made by a sub-committee

consisting of five members of the managing

committee.

(2) The members of the sub-committee shall be appointed by

the managing committee."

7. It is evident that Rule 7(1)(i) of the 1981 Rules requires the

appointing authority to advertise in the English and vernacular daily

newspapers in the State by giving full particulars of the vacancies including

the requisite qualification, number of vacancies to be filled in and the last

date by which the applications are to be submitted. Undoubtedly, there is an

infringement in the aforesaid rules.

8. In this situation, the question which requires adjudication is as

to "whether the Court is required to ignore the technical infringement of the

rules of procedure which causes prejudice to none in order to advance the

cause of justice?"

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9. In the present case, it is undisputed that for the post of

Headmaster, approximately 16 applications were received. It is also not

disputed that there is violation of the procedure laid down for the issuance of

the recruitment notice to invite the applications for appointment on account

of the bonafide error. It is not the case of the official respondents that

management of the school intentionally did not publish the recruitment

notice in vernacular newspaper. Moreover, such an error is sought to be

rectified by publishing the subsequent recruitment notice in the Punjabi

Newspaper on 20.04.2019 in continuation of the previous recruitment notice,

but no application has been received. The petitioner No.1 is working since

the month of December, 2017 as the Headmaster of the respondent No.5-

School and till date no one has come to the school or the department

claiming deprivation of an opportunity on account of failure to publish the

recruitment notice in the newspaper. Moreover, the recruitment notice was

published in the newspaper "The Times of India" which has sufficient

circulation in the State of Punjab. The post which has been advertised is the

Headmaster and the interested candidates are expected to be well versed

with the English language. Thus, it is evident that neither no one has

suffered prejudice nor the failure of the respondent No.5 is the result of

malafide intention.

10. A reading of the Rule 7 of the 1981 Rules, it is evident that the

requirement to publish the recruitment notice in two newspapers, one in

English language and second in vernacular is mandatory. In such

circumstances, the question posed in the previous paragraph arises.

Ultimately, under Rule 7 of the 1981 Rules, the requirement to publish the

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recruitment notice in two newspapers is a rule of procedure for inviting the

applications. In the considered opinion of this Court, failure to publish the

recruitment notice in vernacular was an irregularity but not illegality which

goes to the root of the case. In any case, the said error was rectified while

publishing the recruitment notice in the vernacular newspaper on

20.04.2019. Justice V.R.Krishna Iyer in the State of Punjab and Another v.

Shamlal Murari and Another (1976)1 SCC 719 while speaking for the

Bench with respect to the processual law, held as under:

"8. It is obvious that even taking a stern view, every minor

detail in Rule 3 cannot carry a compulsory or imperative

import. After all, what is required for the Judges to dispose of

the appeal is the memorandum of appeal plus the judgment and

the paper book. Three copies would certainly be a great

advantage, but what is the core of the matter is not the number

but the presence, and the over-emphasis laid by the Court on

three copies is, we think, mistaken. Perhaps, the rule requires

three copies and failure to comply therewith may be an

irregularity. Had no copy been furnished of any one of the three

items, the result might have been different. In the present case,

copies of all the three documents prescribed, have been

furnished but not three copies of each. This omission or default

is only a breach which can be characterised as an irregularity

to be corrected by condonation on application by the party

fulfilling the condition within a time allowed by the Court. We

must always remember that processual law is not to be a tyrant

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but a servant, not an obstruction but an aid to justice. It has

been wisely observed that procedural prescriptions are the

hand-maid and not the mistress, a lubricant, not a resistant in

the administration of justice. Where the non-compliance, tho'

procedural, will thwart fair hearing or prejudice doing of

justice to parties, the rule is mandatory. But, grammar apart, if

the breach can be corrected without injury to a just disposal of

the case, we should not enthrone a regulatory requirement into

a dominant desideratum. After all, Courts are to do justice, not

to wreck this end product on technicalities. Viewed in this

perspective, even what is regarded as mandatory traditionally

may, perhaps, have to be moderated into wholesome directions

to be complied with in time or in extended time. Be that as it

may, and ignoring for a moment the exploration of the true

office of procedural conditions, we have no doubt that what is

of the essence of Rule 3 is not that three copies should be

furnished, but that copies of all the three important documents

referred to in that rule shall be produced. We further feel that

the Court should, if it thinks it necessitous, exercise its

discretion and grant further time for formal compliance with

the rule if the copies fall short of the requisite number. In this

view and to the extent indicated,we overrule the decision in

Bikram Dass's case AIR 1975 Punjab and Haryana 1 (FB)."