Punjab-Haryana High Court
Parul Goyal And Ors vs State Of Punjab And Others on 14 July, 2023
Neutral Citation No:=2023:PHHC:088497
CWP-19176-2022 (O&M) 2023:PHHC:088497 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-19176-2022 (O&M)
Reserved on : 24.04.2023
Pronounced on : 14.07.2023
Parul Goyal and others ...... Petitioners
versus
State of Punjab and others ...... Respondents
CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. D.S.Patwalia, Senior Advocate with
Mr. A.S. Chadha, Advocate
for the petitioners.
Ms. Shivani Sharma, DAG, Punjab.
Mr. Vijay Kumar Kaushal, Advocate and
Mr. Sathak Gupta, Advocate
for respondents No.2 and 3.
Mr. Harsh Goyal, Advocate
for respondent No.6.
Mr. A.P.S. Shergill, Advocate
for respondent No.7.
Mr. Rajesh Punj, Advocate
for respondent No.9.
*****
PANKAJ JAIN, J.
CM-19734-CWP-2022
This is an application for placing on record written
statement on behalf of respondent No.9.
For the reasons mentioned in the application, the same is
allowed. Written statement alongwith form attached therewith are taken
on record.
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CWP-19176-2022
Reply on behalf of respondent No.3 has been filed. The
same is taken on record.
2. Senior counsel for the petitioners submits that there is no
need to file replication and is ready to argue the case. With the consent
of the counsel(s) representing the parties, the main case is taken up for
hearing.
3. Petitioners pray for issuance of a writ in the nature of
certiorari seeking quashing of order dated 01.12.2021 (P-7), whereby
the merit list/selection list of the candidates who participated and were
selected pursuing to advertisement dated 13.07.2011 (P-1) stands
redrawn. Further challenge has been made to the consequential orders
in the nature of appointment of P-9 as Sub Divisional Engineer w.e.f.
16.12.2011 alongwith all consequential benefits, the consequential
revised merit list/selection list dated 10.12.2021 (P-9), the
consequential tentative seniority list dated 17.02.2022 (P-14) and the
order dated 21.12.2021 (P-12) whereby after redrawing the selection
list, petitioners No.2 and 4 have been ordered to be treated as fresh
appointees. Further challenge has also been made to quashing order
dated 15.12.2021, whereby respondent No.9 has been granted additional
charge of Executive Engineer (Works).
4. Petitioners are alumni of Thapar University. Thapar
University evaluates the students adopting Cumulative Grade Point
Average method (CGPA). The CGPA is convertible into percentage by
applying multiplier which used to be determined by the University
itself. The controversy in the present lis relates to the said conversion
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and emanates out of 2011 recruitment based upon Annexure P-1,
whereby 25 posts of Sub-Divisional Engineer (Civil) were filled by
respondent No.2.
5. It is not the first time that the controversy has reached this
Court with respect to conversion of CGPA grades awarded by Thapar
University. Earlier it was brought before this Court in the batch of writ
petitions with CWP No.7323 of 2012 being the lead case. In the batch
of those writ petitions, the petitioners were aggrieved of the action of
Punjab Public Service Commission, Patiala in applying multiplier of 9
for conversion of CGPA marks of the students passing out of Thapar
University who were seeking selection for the post of Sub-Divisional
Engineer (Civil), Sub-Divisional Engineer (Mechanical), Sub-
Divisional Engineer (Electrical). Writ petitions were allowed by the
Single Judge holding that multiplier of 10 ought to have been applied as
decided by the Thapar University. However, judgment passed by
Single Judge was reversed in judgment dated 07.11.2016 passed in LPA
No.1334 of 2014. The relevant part reads as under:-
"xx xx xx
(19) Since the whole controversy revolves around the
applicability of the multiplier for conversion of CGPA to the
percentage of marks in the case of the Graduates of Thapar
University, Patiala, it would be useful at the outset to refer to the
stand taken by the Thapar University in CWP No.9606 of 2012 in
which it was impleaded as respondent No.3. Para 10 of its affidavit
reads as follows:-
"That the University till Academic Session, 2008, in order to
compare the performance of the students, if converted to the
percentage of the marks from CGPA was adopting the
multiplication with 9. The relevant provision in this regard
as mentioned in the mark sheet issued till December, 2007 is
reproduced herein under:-
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"In order to compare the students of this Institute vis-
à-vis other Universities where percentage of marks are
shown in the final result, the following conversion
formula will be used for calculating the percentage of
marks from CGPA.
Percentage of marks obtained by a student = (9.0
xC.G.P.A.)"
The multiplication factor to convert CGPA into percentage
was 9 for those candidates who have passed before May,
2008. From June, 2008 to May, 2012, there was no
conversion factor adopted by the University. However, from
June, 2012, the multiplication factor considered and fixed by
the University in order to convert CGPA into percentage
was fixed at 10."
(emphasis applied)
(20) Again in para 11 of its reply, Thapar University has
reiterated:-
"That as the degrees are awarded in the course of Bachelor
of Engineer by using Cumulative Grade Point Average
system as per curriculum issued by All India Council for
Technical Education (AICTE) which is regulatory body for
education in respect of Engineering in India.
Institutions/Universities had fixed different method/criteria
to be adopted for conversion of CGPA to percentage of
marks. Till the year 2008 University adopted the system for
conversion of CGPA to percentage by multiplying the CGPA
awarded to a student by 9 and thereafter their exist no
formula as adopted by the University for conversion CGPA
to percentage of the marks. Since the degrees are to be
awarded on the basis of CGPA earned by a student in the
entire course, therefore, the practice of mentioning the
conversion system was abolished."
(emphasis by us)
(21) It is also pertinent to mention at this stage regarding the
decision taken by the Board of Governors of Thapar University in
its 103rd Meeting held on 20.10.2012 "TO CONSIDER THE
REQUEST OF PRESIDENT, ALUMNI ASSOCIATION
REGARDING CONVERSION FACTOR FOR THE
STUDENTS WHO GRADUATED BETWEEN 2008 TO
2011". After reference to a brief history, the Board considered the
recommendations made by the Senate and approved the same as
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may be seen from the following:-
"Senate Recommendations:
The Senate discussed and recommended the conversion
formula of 10 x CGPA for the students graduated during the
period 2008 to 2011 for converting CGPA into percentage to
the Board for approval.
Board of Governors Recommendations:
The Board considered and approved the recommendations of
Senate to the conversion formula of 10 x CGPA for the
students graduated during the period 2008 to 2011 for
converting CGPA into percentage."
(22) It stands crystallized from the sequence of facts that Thapar
University used to follow the multiplier of '9' for conversion of
CGPA into the percentage of marks till the academic session 2008
but there was no conversion formula prescribed by the University
during the period 2008 to 2011. In May, 2012, the University
resolved to apply the multiplier of '10' for conversion to the
percentage of marks from CGPA. Since the candidates who
graduated from the University during 2008 to 2011, namely, 'no
multiplier period', were facing difficulties, they represented
through the Alumni Association and the University accepted their
request on the recommendations of the Senate and approved the
conversion formula of 10xCGPA for the students graduated during
the period 2008 to 2011 for converting CGPA into percentage.
(23) It would be equally apt to consider the viewpoint of the
Commission who has uniformly applied the multiplier of '9' for
working out the percentage of academic merit of the Graduates of
Thapar University. The Commission in its written statement dated
22.08.2012 filed in CWP No.7323 of 2012 has justified its
decision for the following reason:-
4. That the formula of scale 9 (Nine) has been adopted for all the
candidates uniformly to the candidates who have passed
there engineering degree from Thapar University, Patiala
and no prejudice has been caused to the petitioner or any
other candidate. On the other hand the adoption of formula
of scale 10 (ten) would have caused prejudice to the
candidates who have passed/obtained their degree before
2008. The Thapar University, Patiala itself has certified to
the candidate that after 2008 the university has prescribed
no formula for conversion of percentage which states "no
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formula for conversion of CGPA to percentage of marks
exists in the academic regulations of this University for the
students who graduated during or after June-2008
onwards". The copy of the certificate has already been
attached with the writ petition as Annexure P-3, vide which
the university has also used the multiple of Nine (9) for
working out the percentage.
That most of the universities have issued the detail marks
cards by stating the percentage of the candidates in their
degree. However, the universities which prescribed no
formula for CGPA, the answering respondent adopted the
formula of Nine (9) for working out the percentage of the
marks uniformly."
(emphasis applied)
(24) The Commission's standpoint is thus that before the year
2012 i.e. till the year 2011, Thapar University either prescribed
multiplier of scale '9' or it did not prescribe any such scale at all. It
was for this reason that the Commission used the multiplier of '9'
for working out percentage on uniform basis and even in the case
of other universities where no formula for conversion of CGPA
into percentage of marks was prescribed, the Commission followed
the multiplier of '9' only.
(25) Having given our thoughtful consideration to the rival
submissions and the respective stand taken by Thapar University
and the Commission, it appears that the view taken by learned
Single Judge is mostly erroneous as the very foundation of it lies in
clubbing of three different selection processes together.
(26) It may be stated at the cost of repetition that the first
advertisement was issued on 28.12.2010 and selection pursuant
stood finalized on 22.03.2012. As on that date, Board of Governors
of Thapar University had not taken their decision dated 12.10.2012
whereby the multiplier of '10' for converting CGPA into
percentage was made applicable 'retrospectively' for the students
graduated during the period 2008 to 2011. In the absence of such
decision, there were two categories of candidates before the
Commission who had graduated from Thapar University, namely-
(i) those who graduated before 2008 with the multiplier of
scale '9' for converting CGPA into percentage;
(ii) those who graduated after the year 2008 and before
17.01.2011 i.e. the last date to submit applications in
response to Advt. No.3 dated 28.12.2010, without any
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multiplier scale prescribed in their mark-sheet.
(27) The Commission was fully justified, in our considered view,
in applying the multiplier scale of '9' in the case of candidates
falling in category No.(ii) above, by treating them at par with the
Graduates of the same University who fell in Category No.(i) as
well also keeping in view the uniformity adopted by the
Commission in respect of Graduates of other Universities. Such a
recourse by the Commission neither amounted to interference with
the 'academic affairs' of the University, nor it tinkered with the
degrees awarded to the candidates. The decision taken by Thapar
University on 20.10.2012 to apply the conversion formula of
10xCGPA by antedating it from the year 2008 onwards was neither
here nor there, hence the Commission cannot be accused of
deviating from any decision taken by the University. The finding
returned by learned Single Judge that the Commission was
obligated to apply the conversion formula of '10' instead of '9'
irrespective of the selection process is thus palpably wrong and
being contrary to the record, the same is set aside.
(28) The Commission as a Constitutional body is well within its
rights to evolve a fair, just, uniform and transparent criteria to be
applied to all the candidates irrespective of the university from
where they graduated. Even if such a criteria puts candidates of
one institute to some disadvantage or others to an advantageous
condition, it would not be per se illegal or erroneous unless the
Court, on lifting the veil, finds it grossly arbitrary, irrational,
absurd and the one which defies the principle of merit. The
observations made by learned Single Judge to the contrary
therefore, are liable to be disapproved.
(29) As regard to the directions issued by learned Single Judge
that the Commission ought to have applied the condition of
'minimum qualifying marks' while short-listing the candidates for
the interview on the basis of their performance in the screening
test, it would be useful to reproduce an important note (f) of the
advertisement which reads as follows:-
"Prescribed Essential Qualifications are minimum and mere
possession of the same does not entitle candidates to be
called for interview. Where the number of applications
received in response to the advertisement is large and if it
will not be convenient or possible for the Commission to
interview all the candidates, the Commission may restrict
the number of candidates for interview to a reasonable limit
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on the basis of short listing them by order of their academic
merit as per their qualification/higher marks OR by holding
a screening test."
(emphasis applied)
(30) It may be seen that there were no minimum qualifying
marks prescribed for the Screening Test which was only meant to
short-list the number of candidates to be called for interview.
Admittedly, the marks obtained in the screening test were not to be
counted for the purpose of determining the final merit. The
selection was to be made as per the selection criteria uploaded on
the website according to which, 70 marks were reserved for the
academic qualifications and 30 for the viva voce. Learned Single
Judge has referred to the "Charter of Duties in General" notified by
the Commission where it is stated that the Commission has also
fixed a standard of merit in Screening Test i.e. 40% marks for
SC/BC and 45% marks for others. Such like guidelines, in our
considered view, cannot be pressed into service in every selection
process unless these are incorporated, expressly or by implication,
in the advertisement.
(31) Learned Single Judge ought not to have gone into the
legality of short-listing the candidates. The writ-petitioners were
admittedly aware of the criteria of short-listing the candidates
evolved by the Commission. They participated in the selection
process with open eyes and did not raise any objection at any
stage. Even after they could not make it to the selection list in the
first process, they remained silent and participated in the second
selection process. Some of them were selected and appointed
pursuant to the second and third advertisements. It was thereafter
that they raked up the issue and that too without impleading the
selected candidates as party respondents although they were fully
aware that the acceptance of such a plea was likely to result into
ousting of some of the candidates from the selection process, who
had been meanwhile appointed also. We may usefully cite in this
regard (i) Vijay Kumar Kaul vs. Union of India (2012) 7 SCC
610; (ii) Ranjan Kumar & Ors. vs. State of Bihar & Ors. (2014)
16 SCC 187; (iii) Madras Institute of Development Studies &
Anr. vs. Dr.K.Sivasubramaniyan & Ors. & Ors. (2016) 1 SCC
454.
(32) In the light of the above discussion, we are of the
considered view that since in the selection process originating out
of Advt.No.3 dated 28.12.2010, the Commission has followed a
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uniform criteria for converting CGPA into percentage of marks
without impinging upon the academic autonomy of any University
and strictly on the basis of the factual and legal statute of the mark
sheets/degrees in the hands of the candidates as on the last cut-off
date or even at the time of the interview, none of the reasons
assigned by learned Single Judge are valid to invalidate the said
selection process. The Letters Patent Appeals challenging the
selection or re-determination of the merit of the candidates by
applying the multiplier of scale '10', are thus allowed and writ
petitions challenging the said selection process are hereby
dismissed.
(33) Same principles would apply in respect of selection of 15
Sub Divisional Engineers (Civil) in Irrigation Department, Punjab
made pursuant to Advt.No.3 dated 23.05.2012, for there was no
material alteration in the criteria for the purpose of determining the
percentage of marks from CGPA of the Graduates who have
acquired their degrees in Engineering under the CGPA pattern."
6. It further needs to be noticed herein that the Special Leave
Petition No.23087 of 2017 preferred against the said order also stands
dismissed in limine. Meaning thereby that the law laid down by the
Division Bench stands affirmed and holds the field.
7. In the light of the aforesaid judgment private respondents
herein approached the authorities and requested them to revisit the
selection list by pegging down the multiplier from 10 to 9 as held by
Division Bench. The authorities passed an elaborate order observing as
under:-
"5. The degrees and certificates submitted by the respondent No. 5 to 8 were
sent to the Thapar University, Patiala for verification. In response to the
request made by the Board, the University responded by stating that the
certificate/degrees have been issued by them vide letter no.
AS/2559/VC/994 dated 16-08-2021 and are as per their record.
6. CDAC Mohali was the agency which was appointed to scrutinize the
applications and make recommendations after preparing merit list of the
suitable candidates. This agency was also asked to clarify the position in
regard to selections recommended by them. It has been submitted by
them that while filling up of online applications, the candidates were
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asked to fill the marks obtained and total marks. There was no provision
of submitting grades in the online application forms. The same was
clearly specified as mentioned below:
Note: In case of gradation system, the applicant is required to
convert the Grades into equivalent marks as per the formula
mentioned by the university on their respective Certificates/Mark
sheets on the application form (copy enclosed)
Further, being a service provider the role of CDAC, Mohali was to
prepare the provisional merit list on the basis of online data filled by the
candidates and technically assist/support the department with
computation of online data. Further, the scrutiny of document, rejection,
selection and issue of appointment letters was done by your department
being appointing authority. The complete data of the above said
recruitment has already been handed over to the Board vide ref. No. C-
DAC/STD/PWSSB/2011/09-02 dated 29-09-2011.CDAC, Mohali.
CDAC has no authority in any manner to consider the representation of
the candidate/s. The appointing authority is PWSSB, Chandigarh for the
above said recruitment and they may decide the representation of the
applicant in the manner whatsoever deemed fit by their department."
7. While filling up online registration forms regarding their application for
appointment to the posts of Sub Divisional Engineers, respondent nos. 5
to 8 had made the following declaration:
i. I have carefully gone through and understood the
eligibility/selection criteria as mentioned by the board and do
hereby accept the same and certify that I fulfill all the eligibility
conditions.
ii. The information given by me in the application form is
true to the best of my knowledge and belief and nothing has been
concealed therein and application has been filled by me.
iii. If the information furnished by me in the application form
of furnished later on at any stage, is found to be incorrect/false,
the Board/Govt. shall have the right to cancel my candidature
and also to take legal action.
iv. I also undertake not to contact/approach any Board
official member or any person claiming rapport with the above
said officials of Board to exert any outside and refrain from using
unfair means for my selection.
8. The Committee appointed by the Board to find out the facts of the case
examined the certificates produced by Respondents nos. 5 to 8 and
worked out the following correct position in respect of cumulative
CGPA in the detail marks and formula to calculate percentage from
CGPA which worked out as under:-
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Sr. Name Documents Cumulative CGPA Semester wise
No. Submitted I II III IV V VI VII VII
1. Sh. Jitin Bachelor 7.74 8.55 8.57 8.69 8.85 9.04 8.94 9.03
Vasudeva Degree &
DMC of 1st
to 8th
Semesters
Remarks • Formula for calculating CGPA to percentage given on the
reverse of DMC is as under:-
In order to compare the students of this institute Vis-à-vis
other Universities where percentage of marks are shown in
the final result, the following conversion formula will be
used for calculating the percentage of marks from CGPA.
Percentage of marks obtained by a student = (9.0 X
C.G.P.A.) (Only on 1st Semester)
• No Formula for calculating CGPA to percentage given on
the reverse of DMC (On 2nd to 8th Semester)
• Thapar University issued certificate Ref. No. AS/BE-2007
dated August 23, 2011 certified that there exists no formula
for conversion of CGPA to percentage of marks in the
Academic Regulations of this University for the students
who graduated during or after June 2008 onwards.
However, if still percentage of marks is required please
calculate the same by "Dividing CGPA secured by the
student with maximum possible CGPA and then
multiplying the result by 100".
Sr. Name Document Cumulative CGPA Semester wise
No. s I II III IV V VI VII VII
Submitted
1. Smt. Bachelor 9.09 9.10 9.31 9.40 9.47 9.56 9.60 9.61
Parul Degree &
Goyal DMC of 1st
to 8th
Semesters
Remarks • Formula for calculating CGPA to percentage given on the
reverse of DMC is as under:-
In order to compare the students of this institute Vis-à-vis
other Universities where percentage of marks are shown in
the final result, the following conversion formula will be
used for calculating the percentage of marks from CGPA.
Percentage of marks obtained by a student = (9.0 X
C.G.P.A.) (On 1st to 7th Semester)
• No Formula for calculating CGPA to percentage given on the
reverse of DMC (On 8th Semester)
• Thapar University issued certificate Ref. No. AS/1040257
dated 8.12.2010, This is to certify that Ms. Parul Goyal S/o
Sh. Surinder Kumar Goyal Regn. No. 1040257 has passed
Bachelor of Engineering in Civil Engineering from this
University in June 2008. Her Cumulative Grade Point
Average on completion of the programme was 9.61 (10
point Scale).
• Further certified that there exists no formula for conversion
of CGPA to percentage of marks in the Academic
Regulations of this University for the students who
graduated during or after June 2008 onwards. However, if
still percentage of marks is required please calculate the
same by: "Dividing CGPA secured by the student with
maximum possible CGPA and then multiplying the result by
100"
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Sr. Name Documents Cumulative CGPA Semester wise
No. Submitted I II III IV V VI VII VII
1. Sh. Jugal Bachelor 7.02 7.19 7.74 7.96 8.15 8.39 8.54 8.64
Kishor Degree &
DMC of 1st
to 8th
Semesters
Remarks • Formula for calculating CGPA to percentage given on the
reverse of DMC is as under:-
In order to compare the students of this institute Vis-à-vis
other Universities where percentage of marks are shown in
the final result, the following conversion formula will be
used for calculating the percentage of marks from CGPA.
Percentage of marks obtained by a student = (9.0 X
C.G.P.A.) (Only on 1th Semester)
• No Formula for calculating CGPA to percentage given on the
reverse of DMC (On 2nd to 8th Semester)
• Thapar University issued certificate Ref. No. AS/BE-2007
dated August 23, 2011 certified that there exists no formula
for conversion of CGPA to percentage of marks in the
Academic Regulations of this University for the students
who graduated during or after June 2008 onwards. However,
if still percentage of marks is required please calculate the
same by: "Dividing CGPA secured by the student with
maximum possible COPA and then multiplying the result by
100"
Sr. Name Document Cumulative CGPA Semester wise
No. s I II III IV V VI VII VII
Submitted
1. Sh. Bachelor - - 6.65 7.63 8.25 8.42 8.62 8.59
Vikas Degree &
Kumar DMC of 3rd
to 8th
Semesters
Remarks • Formula for calculating CGPA to percentage given on the
reverse of DMC is as under:-
In order to compare the students of this institute Vis-à-vis
other Universities where percentage of marks are shown in
the final result, the following conversion formula will be
used for calculating the percentage of marks from CGPA.
Percentage of marks obtained by a student = (9.0 X
C.G.P.A.) (On 3rd to 7th Semester)
• No Formula for calculating CGPA to percentage given on the
reverse of DMC (On 8th Semester)
• Thapar University issued certificate Ref. No. AS/1055204
dated November 30, 2009, This is to certify that Mr. Vikas
Kumar Regn. No. 1055204 was a bonafide student of
Bachelor of Engineering in Civil Engineering at this
University. His Cumulative Grade Point Average is 8.59 on
10 point Scale.
• Further certified that there exists no formula for conversion
of CGPA to percentage of marks in the Academic
Regulations of this University for the students who
graduated during or after June 2008 onwards. However, if
still percentage of marks is required please calculate the
same by:
"Dividing CGPA secured by the student with maximum
possible CGPA and then multiplying the result by 100"
9. That the Committee submitted its report on 25-11-2021 while making
the following recommendations:-
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i. Record of recruitment of concerned persons may be placed
in lock & key by the Assistant Incharge.
ii. Regarding criminal investigation, committee is of the
opinion that separate High Level authority be deputed for
investigations of the allegations leveled in the
representation.
iii. While deciding the representations the decision taken by
Division Bench In LPA No. 1334 of 2014 titled as State of
Punjab and anr VS Simran Sra & ors. by Punjab and
Haryana High Court which has been approved up to the
level of Hon'ble Supreme Court be kept in view."
And the authorities held as under:-
"13. I have gone through the entire case in length and breath, and
have also considered the contention of all the stakeholders, and also
gone through the entire gamut of litigation and the judgements of the
Hon'ble Higher Court, and the Hon'ble Supreme Court of India, as well,
in this case.
The genesis and the entire edifice of this case is based not only upon the
correct and factual reading of the facts of this case, but also upon the
Finality accorded to it by the Hon'ble Supreme Court of India by
dismissing the SLP No: 23087/2017, filed against the Judgement of the
Division Bench of the Hon'ble Punjab and Haryana High Court in LPA
No:1334 of 2014 decided on 07 11.2016.
Consequentially, after going through the microscopic details of this
case, and after juxtaposing the same with the judgement of the Division
Bench of the Hon'ble High Court, which was upheld by the Hon'ble
Supreme Court of India, vide its judgement dated 15.04.2019, it is
irrefutably clear and I have no hesitation to hold that the representations
dated 18.10.2021 (P-10) and dated 08.02.2021 (P-11) deserve
acceptance and are hereby accepted. The Selection of Sub Divisional
Engineers under challenge be corrected/modified on the basis of their
merit list by applying factor '9' instead of '10' while calculating the
percentage from CGPA in the case of candidates who passed from
Thapar University Patiala during 2008 to 2011.
It is, however, pertinent to mention and highlight over here that in the
CM No.8423-CWP-2021 filed in CWP-6633-2021, the Hon'ble High
Court has granted status quo order till the next date of hearing. Since,
preparation of a fresh seniority list of the SDEs is a natural consequence
and outcome of the amended selection list, therefore, the Hon'ble High
Court may be moved accordingly for vacation of status que order dated
July 16, 2021.
On vacation of status quo order, fresh seniority list of SDEs be drawn up
after ting objections from the concerned officials. An Enquiry Officer
may also be appointed for conducting the enquiry proceedings into the
charges of misrepresentation of CGPA by Respondent nos. 5 to 8 (In
CWP No. 6633 of 2021) at the time of seeking their appointments in
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PWSSB. The record of recruitment of these officials be kept in safe
custody/lock & key of Manager Personnel & General Admn.
Consequential benefits, if any, be also paid to the representationists.
Thus, all the contentions of the petitioners as raised in CWP No.6633 of
2021 which have acquired finality upto the level of Hon'ble Apex Court
such as re-drawing the fresh merit and selection list by correctly
applying factor '9' CGPA instead of '10', initiation of inquiry by
appointing an Enquiry Officer, finalisation of seniority list and grant of
consequential benefits have been accepted as per the letter and spirit of
the Hon'ble Division Bench Judgement of Hon'ble High Court of Punjab
and Haryana. The selection record of SDEs be kept in the lock & key of
the responsible officer as ordered above."
8. Learned senior counsel for the petitioners submits that ratio
of law laid down by Division Bench of this Court in LPA No.1334 of
2014 titled as State of Punjab and another vs. Simran Sra and others
cannot be made applicable to the selection of the petitioners which
stands finalized way back in 2011 and the merit list/seniority list thus
ought not have been altered. It has been further submitted that order
Annexure P-12 cannot be sustained, whereby petitioners No.2 and 4
have been seriously prejudiced by ordering that for all and intents and
purposes they shall be deemed to be fresh appointees and would not be
entitled to any back wages, seniority or any other benefits based on
their position which itself would be in the teeth of law laid down by
Apex Court in the case of Vikas Pratap Singh and others vs. State of
Chhattisgarh and others, (2013) 14 SCC 492 and Rajesh Kumar and
others vs. State of Bihar and others, (2013) 4 SCC 690.
9. It has been argued by learned senior counsel representing
petitioners with eloquence that LPA judgment only dealt with three
advertisements dated 28.12.2010, 23.05.2012 and 22.12.2012 and at no
point of time did the advertisement pursuant to which the petitioners
have been appointed form the subject matter of the aforesaid lis. The
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alternation of seniority list/merit list that too to the peril of the
petitioners after 10 years and when there is no cloud on the work and
conduct is itself arbitrary and thus cannot be sustained.
10. Counsel representing respondents on the other hand
submits that the multiplier of 10 having been applied at the time of
selection to convert CGPA grades of the petitioners into percentage that
too by the petitioners themselves, was error apparent on the face of the
record. There was no provision of submitting CGPA grades in the
application forms and it was clearly specified in the note appended
that:-
"Note: In case of gradation system, the applicant is required to convert the
Grades into equivalent marks as per the formula mentioned by the university on
their respective Certificates/Mark sheets on the application form (copy
enclosed)"
11. Further, a declaration was made by all the petitioners that
the information given by them in the application form is true to the best
of their knowledge and in case any information furnished by them is
found to be incorrect, false at any later stage, the Board/Government
shall have the right to cancel their candidature and to take legal action.
12. I have heard counsel for the parties and have gone through
the records of the case.
13. The certificates pertaining to the petitioners wherein the
formula calculating percentage of marks obtained by them has been
specifically provided specifying multiplier of 9 and yet the petitioners
calculated their percentage by applying multiplier of 10. After
representations were received on 18.01.2021 from various candidates,
who competed alongwith petitioners to recast the selection list, an order
was passed by Writ Court in CWP No.6633 of 2021 dated 22.03.2021,
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whereby the competent authority was mandated to decide the aforesaid
representations observing as under:-
"This matter is being taken up for hearing through video
conferencing due to outbreak of the pandemic, COVID-19.
It is, inter alia, submitted that at the time of selection of
respondents No. 5 to 8, multiplier of scale 9 has to be applied for
converting into percentage and not of scale 10 Cumulative Grade
Point Average (CGPA) as was done. Learned counsel for the
petitioners refers to Division Bench judgment of this Court in
LPA-1334-2014 (State of Punjab and another versus Simran Sra
and others) (Annexure P8), which was upheld by the Hon'ble
Supreme Court on 15.04.2019. It is further submitted that the
petitioners became aware of this on 31.12.2020 (Annexure P7) and
immediately representations dated 18.01.2021 (Annexure P10) and
08.02.2021 (Annexure P11) were submitted by them in order to
obviate further prejudice being caused to them by wrongful
promotion of respondents No. 5 to 8. However, no action is being
taken by the respondents.
Notice of motion.
Mr. Abhay Pal Singh Gill, AAG, Punjab accepts notice on
behalf of respondent No. 1.
Notice be issued to respondents No. 2 to 8 for 29.07.2021.
Notice re: stay.
Dasti as well.
In the meanwhile, competent authority to decide
representations dated 18.01.2021 (Annexure P10) and 08.02.2021
(Annexure P11) and report be filed well before the next date of
hearing."
14. After the order dated 22.03.2021 passed in CWP No.6633
of 2021 was served upon the respondent, a Multi Member Committee
under the Chairmanship of Engineer-in-Chief cum Technical Advisor,
Punjab Water Supply and Sewerage Board was constituted to examine
the representation. The Committee comprehensively examined the
record and sought reply from all the effected parties including the
petitioners and made following recommendations:
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"1. Record of recruitment of concerned persons may be placed in
lock & kay by the Assistant Incharge.
2. Regarding criminal Investigation, committee is of the
opinion that separate High Level authority be deputed for
investigations of the allegations leveled in the representation.
3. While deciding the representations, the decision taken by
Division Bench in LPA No. 1334 of 2014 titled as State of
Punjab and anr. VS Simran Sra & ors. by Punjab and
Haryana High Court which has been approved up to the level
of Hon'ble Supreme Court, be kept in view."
15. It is only thereafter that the order dated 01.12.2021
impugned in the present writ petition was passed. Apex Court in
'Assistant Commissioner Income-Tax, Rajkot vs. Saurashtra Kutch,
Stock Exchange Limited' to submit that the judge does not make law
but only declares it. So far as principle of prospective overruling is
concerned, the same will not be applicable in the present case in the
light of declaration submitted by the petitioners themselves and this
being a case of correction of error.
16. The issue as to whether multiplier of 9 or 10 will be
applicable while converting CGPA grades into percentage is no more
res integra.
17. Learned Senior counsel representing petitioners also is not
in a position to dispute law laid down by Division Bench of this Court
in Simran Sra's case (supra). It is also borne out of the fact that the
multiplier was applied by the petitioners themselves to convert their
grades into percentage. It has also come on record that the certificates
of the petitioners themselves provided that the multiplier will be 9 and
despite that they applied multiplier of 10.
18. In the considered view of this Court, definitely the error on
the face of record would fall within the ambit of declaration submitted
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by the petitioners and thus no fault can be found with the action of the
respondents in correcting the same.
19. In view thereof, this Court does not find any reason to
interfere with the impugned order dated 01.12.2021 (Annexure P-7) and
the consequential orders altering the seniority and the selection list.
However, since Annexure P-14 has itself tentative seniority list, this
Court refrain itself from commenting thereupon apart from the fact that
the same has to abide P-7. Likewise, no fault can be found with the
impugned orders Annexures P-8, P-9 and P-10. Having said so, this
Court finds that Annexure P-12 cannot be sustained. The reason is
evident from the order itself. The operative part of the order reads as
under:-
"33. Accordingly, I direct but the applicants be not ousted from
the service and they be adjusted at the bottom of Revised
Selection/Merit List, issued vide Office Order
No.PWSSB_2021/EB(A6)/755 dated 10.12.2021.
34. It is also clarified that their placement shall for all intents
and purposes be deemed to be a fresh appointment which would
not entitle the applicants to any back wages, seniority or any other
benefits based on the position.
The application of the applicants regarding their non-ouster
deserves acceptance and the same is hereby accepted. Keeping in
view the ratio of the Judgements delivered by Hon'ble Apex Court,
it is ordered that the services of both the applicants shall not be
dispensed with and they will continue as such on their post/s of
selection and original appointment. Further, this order of mine will
have no effect on the independent enquiry proceedings to be
conducted against the applicants as ordered separately by me, in
Office Order No.PWSSB-2021/EB(A6)710 issued vide endst.
no.PWSSB-2021/EB(A6)/20363-66 dated 01/12/2021."
20. In the considered opinion of this Court, para 34 and the
concluding part of the order cannot be reconciled together and are self
contradictory. Division Bench in LPA No.1334 of 2014 while relying
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upon law laid down by Apex Court in the case of Vikas Pratap Singh
(supra) observed as under:-
"xx xx xx
(37) Having accepted the claim of Amit Soni - writ petitioner in
CWP No.8710 of 2013, we are further of the view that in case as a
result of re-shuffle of the merit list, Simranjeet Singh - the last
selected candidate is affected, he is entitled to continue in service
and shall have to be adjusted against the unfilled post(s) keeping in
view the principles laid down by Hon'ble Supreme Court (i) Vikas
Pratap Singh & Ors. vs. State of Chhattisgarh & Ors. (2013) 14
SCC 494; and (ii) Rajesh Kumar & Ors. vs. State of Bihar & Ors.
(2013) 4 SCC 690."
21. In the light of settled proposition of law, this Court finds
that P-12 cannot be sustained. Petitioner No.2 and 4 cannot be said to
be fresh appointees. They shall be allowed to continue in terms of their
selection and shall if need arises be adjusted against unfilled post. They
shall be deemed to be in continuous service from the date of their
appointment and shall be entitled for all benefits including the seniority
etc. but in terms of Annexure P-7 i.e. after adjusting their merit by
applying multiplier of 9 which means that they shall be placed at the
bottom of the selection list qua advertisement dated 13.07.2011 (P-1).
22. In view of above, the present writ petition is partly allowed.
(PANKAJ JAIN)
JUDGE
14.07.2023
Dinesh
Whether speaking/reasoned : Yes
Whether Reportable : Yes
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