Punjab-Haryana High Court

Parvinder Singh And Others vs State Of Punjab And Others on 30 April, 2024

Author: Sanjeev Prakash Sharma

Bench: Sanjeev Prakash Sharma

                                 Neutral Citation No:=2024:PHHC:058548-DB


268           IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH

(1)                                             CWP-6819-2023 (O&M)
                                                2024:PHHC:058548-DB
                                                Reserved on : 04.04.2024.
                                                Date of Decision: 30.04.2024.
Parvinder Singh & Ors.                                         ...Petitioners
                                         Vs.
State of Punjab & Ors.                                         ...Respondents

(2)                                             CWP-16091-2023 (O&M)

Daljit Kaur                                                    ...Petitioner
                                         Vs.
State of Punjab & Ors.                                         ...Respondents

(3)                                             CWP-18897-2023 (O&M)

Sukhpreet Singh & Ors.                                         ...Petitioners
                                         Vs.
State of Punjab & Ors.                                         ...Respondents

(4)                                             CWP-26974-2023 (O&M)

Manjeet Singh & Anr.                                           ...Petitioners
                                         Vs.
State of Punjab & Ors.                                         ...Respondents


(5)                                             CWP-17495-2023 (O&M)

Gurdhian Singh and others                                      ...Petitioners
                                      Versus
State of Punjab and others                                     ...Respondents


CORAM: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
       HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Present       Mr. Vikas Chatrath, Advocate, Mr. Abhishek Singla, Advocate
              and Ms. Tanya Sehgal, Advocate for the petitioner (s)
              (in CWP Nos. 6819, 17495 and 18897 of 2023)




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             Ms. Alka Chatrath, Advocate and
             Mr. Nikhil Singh, Advocate for the petitioner (s)
             (in CWP No. 16091 of 2023)

             Ms. Himani Kapila, Advocate for the petitioner (s)
             in CWP-26974-2024.

             Mr. R.S.Pandher, Sr. DAG, Punjab.

             Mr. Amit Jhanji, Senior Advocate with
             Mr. Abhishek Premi, Advocate and
             Mr. H.S.Saini, Advocate for respondent Nos. 5 to 10.

             Mr. Jatinderpal Singh and Mr. Ankush Thakral, Advocates
             for respondent No.11.

             Ms. Kriteka Sheokand, Advocate for the applicant
             (in CM-5460-CWP-2024).
                   ***

SANJEEV PRAKASH SHARMA, J.(Oral)

1. All these writ petitions raised a common question of law and

were, therefore, taken up and heard jointly.

2. The petitioners in all the writ petitions are the applicants for

recruitment to the post of Elementary Trained Teacher (hereinafter referred to

as 'the ETT'), for which, an advertisement was issued on 12.10.2022. The

last date for submission of application form was 10.11.2022 and as per initial

advertisement, the educational qualification required for the post of ETT was

that a candidate should have passed graduation with minimum 50% marks

(for general category) and 45% marks (for reserved categories) and two years

Elementary Teacher Training Course or two years diploma in Elementary

Education from a recognized university/institution and should have passed

PSTET-1. The candidate was also required to have passed 10+2 with

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minimum 50% marks (for general category) and 45% marks (for reserved

categories).

3. The Government of Punjab, notified the Punjab Civil Services

(General and Common Conditions of Service) First Amendment Rules 2022,

on 28.10.2022 (hereinafter referred to as 'the Rules of 2022'), whereby

requirement of qualifying test of Punjabi equivalent to Matriculation standard

with at least 50% marks was made mandatory for appointment to any post of

Group-C.

4. Immediately thereafter, a revised letter was issued on

01.12.2022 to the advertisement dated 12.10.2022, incorporating the

amendment in pursuance of notification 28.10.2022 and it was provided that

modification in the mode of selection for the posts advertised on 12.10.2022,

would be as per the following criteria:-

"1. For the recruitment of these posts, the examination for

Punjabi subject (Paper-A) will be conducted, in which there will

be 100 questions. This paper will be of qualifying nature. The

candidates who obtain minimum 50% marks in the test will be

declared eligible for the post.

2. Second Paper (Paper-B) will be conducted from subjects of

Punjabi, English, Hindi, Math, General Science and Social

Science. In this paper, there will be 100 objective questions and

of 200 marks. The paper will be of 1000 minutes duration.

The merit of the candidates will be determined on the

basis of marks obtained in Paper-B.

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The other conditions and detail of the advertisement will

remain the same.

The syllabus determined for these posts is available on the

website of the department."

5. Feeling aggrieved, the petitioners challenged the notification

dated 28.10.2022 on various grounds and also challenged the revised letter

dated 01.12.2022. On 16.12.2022, the respondents issued a public notice

whereby date for taking written examination of qualifying test of Punjabi was

notified. The petitioners submitted representation for granting relaxation to

persons belonging to reserved category in the qualifying examination of

Punjabi. Whereafter, the petitioners filed the present writ petitions after

participating in the written test which was held on 05.03.2023. After reply

was filed by the respondents, the case was taken up, wherein learned State

Counsel submitted that till the next date of hearing, the State shall not

continue with the selection process. Thereafter, this Court adjourned the

matter from time to time to await the pronouncement of the judgment in Tej

Parkash Pathak and others vs. Rajasthan High Court and others (2013) 4 SCC

540, as the issue involved in the said case was referred to the Constitution

Bench on 18.07.2023.

6. Again the matter came up before this Court on 20.02.2024 and

while the State intended to withdraw its undertaking dated 12.10.2023,

leading to passing of order, but the Court did not allow the State to withdraw

the undertaking and restrained the respondents from continuing the selection

process.

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7. Learned counsel for the petitioners have challenged the

amendment made to Rule 17, incorporating the condition of passing

qualifying test in Punjabi language as mandatory for appointment to any post

of Group-C with 50% minimum marks for all. It is submitted that the

amendment cannot sustain as there is no relaxation granted to the reserved

category candidates for the purpose of qualifying exam, and therefore, the

action runs foul to the provisions of Articles 15(4) and 16(4) of the

Constitution of India. In support of their arguments, learned counsel relied on

the judgments of Ram Bhagat Singh vs. State of Haryana and others, 1997

(11) SCC 417, Ajay Kumar Verma vs. State of Haryana and others 2009 (4)

SCT 784, Harikiran Singh vs. State of Punjab and others 2013 (3) SCT 473,

Shabir Khan and another vs. State of Punjab and others, decided on

29.02.2012.

8. It has been further submitted that there is neither any rational nor

intelligible differentia to be achieved by introducing the qualifying test for

Group 'C' and 'D' posts, especially when the decision making process is to

be taken in the higher hierarchy who have been excluded from the same. It is

submitted that while Group 'A' and 'B' posts have been left out from passing

the mandatory Punjab qualifying test and the same has been limited to only

Group 'C' posts. Thus, the candidates who have passed PSTET and the

subsequent papers on the basis of which merit is prepared, have been asked to

qualify the test of Punjabi, which is wholly a superfluous, as in Matriculation

and PSTET knowledge of Punjabi is a prerequisite qualification. Learned

counsel for the petitioners have relied on the judgments passed in the case of

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Deepak Sibal vs. Punjab University 1989 AIR (SC) 903, Ganga Ram

Moolchandani vs. State of Rajasthan 2001 (1) SCT 820, Dev Gupta vs. PEC

University of Technology, 2023 (1) Scale 642.

9. Learned counsel submitted that merely because the petitioners

have participated in the selection process, they cannot be ousted from

challenging the rule and the amendment made in the advertisement, as there

is no estoppel against law and it is only after appearing in the examination

that the process can be challenged. Learned counsel relies on the judgments

in Dr. (Major) Meeta Sahai vs. State of Bihar, 2020 (1) SCT 469 SC, Daljit

Kaur vs. State of Punjab and others 2022 (1) SCT 4.

10. Learned counsel have further challenged the selection and

appointment process on the ground that the rules of the game have been

sought to be changed in between, after the advertisement was issued. It is

submitted that the requirement of passing Punjabi qualifying test could not

have been added to the advertisement as the amendment was introduced on

28.10.2022 with effect from the date of publication, and therefore, the posts

which have been advertised on 12.10.2022, could not have been governed by

the said amendment. Learned counsel submit that the revised letter dated

01.12.2022, is a corrigendum, which runs contrary to the Rules of 2022,

notified on 28.10.2022, as the amendment came into force from the date of its

publication while the corrigendum applies the same retrospectively to the

posts which were advertised earlier on 12.10.2022. Learned counsel relies on

the judgments in State of Andhra Pradesh vs. A.P. State Wakf Board 2022 (2)

ALT 69.

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11. Learned counsel have also challenged the condition of passing

of the examination in the subject of Punjabi on the ground that the Punjabi

qualifying test has not been conducted for the language of Punjabi and the

syllabus which was prescribed for the exam of Punjabi Paper-A runs contrary

to the amendment. The rules required to pass Punjabi language qualifying test

with minimum 50% marks, whereas the syllabus for Punjabi Paper-A for

EET post would show that the question paper incorporated 'knowledge of

Punjabi culture, history and general awareness relating to Punjab, Punjabi

and Punjabiath', which essentially means that only those candidates who are

from Punjab having Punjabi culture and Punjabiath would be able to

participate in the selection process. Learned counsel submit that the syllabus

and Paper-A for EET are supplanting the Rules of 2022, which could not

have been done. Learned counsel reply on the judgment in Sant Ram Sharma

vs. State of Rajasthan 1968 (1) SCR 111 (SC). It is submitted that there is a

difference between Punjabi and Punjabi language and the examination

conducted de hors the rules. It is further submitted that the submissions made

by the petitioners had not been specifically denied, and therefore, they will be

deemed to have been admitted by the respondents as per the principles of

interpretation of the statute. The first principle to interpret by constructing

literally in terms of the grammatical sense was required to be followed giving

expression which is natural, ordinary and plain.

12. Learned counsel in CWP-16091-2023, has pointed out that the

respondents had framed Punjab Elementary Teaching Cadre Group-C Service

Rules, 2018 and Punjab State Elementary Education (Teaching Cadre Border

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Areas) Group-C Service Rules 2018 and as per Rule 6(1), all appointments

were to be made as per the manner specified in Appendix-B. She has

submitted that for ETT, the requirement is of having passed Bachelor Degree

from recognized university/institution with at least 55% marks for general

category and 50% for SC, ST and BC physically handicapped category. She

submits that there is relaxation provided for the reserved category persons

and by not providing the said reservation in the qualifying test of Punjabi,

discrimination has been done with the reserved category persons by bringing

unequal to equal.

13. Per contra, learned counsel appearing for the State and

respondents have supported the amendment and submitted that the criteria for

conducting Punjabi language qualifying test is a prerequisite qualification for

participation and appointment of Group-C posts and the same cannot be said

in any manner to be against the law since all the candidates have been equally

benefitted by the prerequisite qualification and all of them have to pass with

minimum 50% marks. Therefore, it cannot be said that the same causes any

discrimination to the reserved category candidates as benefit to the reserved

category persons has already been provided in the educational qualification

and also with regard to number of posts reserved for them. It is further

submitted that the post of Group 'A' and 'B' are advertised, and

appointments are made in terms of the Combined Competitive Examinations

Rules, 2009. It is submitted that knowledge of Punjabi and subject of Punjabi

is one of the essential subjects for examination for selection to Group 'A' and

'B' posts, and therefore, there was no requirement for issuing another

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amendment for incorporating Group 'A' and 'B' posts as prequalification for

selection, whereas the Group 'C' and 'D' candidates do not participate in the

Combined Competitive Examination. It is further submitted that for the

purpose of teaching at the level of elementary, knowledge of Punjabi is

essential, and therefore, action cannot be said to be ultra vires.

14. Respondents submitted that the Department of Personnel vide

letter dated 11.09.2023, has informed that the Council of Ministers in its

meeting held on 21.10.2022, had approved the memorandum presented by

the Personnel Department, Punjab, for making amendment in the Punjab

Civil Service (General and Common Conditions of Service) Rules, 1994. The

amendment was carried out in the Rule 17 of the Civil Services (General and

Common Conditions of Service) Rules, 1995, vide notification dated

28.10.2022, according to the approval of the Cabinet/Council of Ministers. In

the memorandum presented in the Cabinet, it is stated that it has been the aim

of the Punjab Government to promote the Punjabi language in the State of

Punjab and knowledge of Punjabi language is very important for the smooth

functioning of the government departments. Therefore, from time to time,

efforts have been made by the Punjab Government to make Punjabi language

compulsory in the educational institutions and offices of the State of Punjab.

In order to fulfill this purpose, apart from other matters, instructions have

been issued vide letter N.3107-Language-68/21805 dated 03.06.1968, from

the Language Department of the Punjab Government, for all jobs and

recruitments under the Punjab Government, Matriculation or its equivalent

educational qualification must have passed in Punjabi language. It has been

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clarified in memorandum that as per Rule 176 of the Punjab Civil Services

(General and Common Conditions of Service) Rules, 1994, for the

recruitments under Punjab Government, in Group-A, B and C posts, the

knowledge of Punjabi upto matriculation level is mandatory. For smooth

functioning of the work of the Punjab Government, the knowledge of Punjabi

language is very much important and instructions are already issued

regarding passing of Punjabi language upto matriculation or its equivalent

educational qualification for recruitment for posts under Punjab Government.

Under these provisions, as per the prescribed qualifications for appointments

through direct recruitment in the State of Punjab, the residents of Punjab

State and other States also become eligible by passing the additional subject

of Punjabi at matriculation level with minimum qualifying marks.

15. As such candidates who do not have sufficient knowledge of

Punjabi language in depth, due to which, they face difficulty in doing office

work in Punjabi language. In office work, especially in clerical and other

Group-C and Group-D levels posts with direct contact with the general

public, all correspondence, exchange of information and other work is done

in Punjabi language, hence, good knowledge of Punjabi language is very

important at these levels of posts. In view of the said situation in the State of

Punjab along with the competitive examination to be conducted for the

recruitment of Group-C posts, the tenth level qualifying paper of Punjabi

language has also been prescribed and only those candidates will be

considered eligible for the job who are proficient in Punjabi and will secure

at least 50% marks in this qualifying Punjabi language paper. This Punjabi

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language qualifying test is also applicable to Group-D posts. They rely on the

judgments passed in All India Masters' and Assistant Station Masters'

Association Delhi vs. General Manager, Central Railway (Larger Bench)

1960 AIR (SC) 384, Jarnail Singh vs. State of Punjab 2014 (2) SCT 701,

Anupal Singh vs. State of UP 2020 (2) SCC 173, State of Uttar Pradesh vs.

Karunesh Kumar and others 2023 AIR (SC 52, Tajvir Singh Sodhi vs. The

State of J & K 2023 AIR (SC) 2014.

16. Learned counsel for the interveners and respondents who have

participated and cleared the Punjabi qualifying test, have supported the

State's action and submitted that the decision for including Punjabi as a

prerequisite qualification, is wholly uncalled for. The petitioners cannot

claim parity with Group 'A' and 'B' posts as requirement for appointment on

Group 'A' and 'B' is totally different from that of Group 'C' and 'D'. It is

further submitted that since the amendment was made at initial stage itself in

the advertisement, the petitioners thereafter fully participated in the selection

process and took a chance for clearing the examination, cannot now turn

around and challenge the revised letter and amendment and the petitioners

are estopped from challenging the same. It is further submitted that the policy

decision is purely under the domain of the government and it is not for this

Court to substitute its opinion to that of the State Government. In support of

their submissions, learned counsel rely on Ashok Kumar and another vs.

State of Bihar and others (2017) 4 SCC 357, Chandra Prakash Tiwari and

others vs. Shakuntala Shukla and others (2002) 6 SCC 127, K.A. Nagamani

Vs. Indian Airlines and others (2009) 5 SCC 515, Madan Lal and others vs.

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State of J & K and others (1995) 3 SCC 486, Madras Institute of

Development Studies and another vs. K. Sivasubramaniyan and others (2016)

1 SCC 454, Om Prakash Shukla vs. Akhilesh Kumar Suukla and others 1986

(suppl) SC 285, Union of India vs. Pushpa Rani and others (2008) 9 SCC

242, Dr. Parhul Dham vs. State of Punjab and others 2011 (15) SCT 130.

17. Learned counsel further submitted that the principle relating to

the change of rule of the game, would have no application to the present case

because revised letter was issued by the State Government and it is thereafter

that the entire selection process was conducted. They rely on the judgment

passed in Tej Parkash Pathak and others vs. Rajasthan High Court and others

(2013) 4 SCC 540 and submit that till a decision is taken by the Larger

Bench, the said judgment will hold its field.

18. We have considered the submissions and perused the case laws

cited along with written submissions.

19. While counsel for the respondents have strenuously objected to

the maintainability of the writ petitions filed on behalf of the candidates who

had participated in the selection process invoking principles of approbate and

reprobate, we find that the result of the selection process has not been

declared so far and immediately after having participated in the Punjabi test

without waiting for the result, the petitioners have approached this Court.

20. In Krishna Rai vs. Banaras Hindu University 2022 (3) SCT 244

SC, the Hon'ble Supreme Court has held as under:-

"22. However, the Division Bench fell in error in applying the

principle of estoppel that the appellants having appeared in the

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interview and being unsuccessful proceeded to challenge the

same and on that ground alone, allowed the appeals, set aside the

judgment of the learned Single Judge. The Division Bench

having approved the reasoning of the learned Single Judge,

ought not to have interfered in the judgment of the learned

Single Judge on a technical plea. The Division Bench ought to

have considered that the appellants were ClassIV employees

working from 1977 onwards and expecting from them to have

raised serious objection or protest at the stage of interview and

understanding the principles of changing the Rules of the game,

was too farfetched, unreasonable and unwarranted."

21. Thus, we find that the principle of estoppel would not apply as

against the petitioners and we accordingly hold in favour of the petitioners in

so far as maintainability of the writ petitions is concerned.

22. The first and foremost challenge made by the petitioners is on

the basis of change of rules of the game when the game has already started.

We are unable to accept the contentions of the petitioners. The power of

issuing advertisement and power of making amendment in the advertisement

is available with the employer. In the present case, the respondents issued a

revised letter on 01.12.2022, incorporating the condition introduced in the

Rules of 2022, notified on 28.10.202, which required all the aspirants to pass

Punjabi qualifying test with minimum 50% marks for all Group-C posts.

23. The contention of learned counsel for the petitioners that the

corrigendum could not have been issued after the last date of submission of

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application forms resulting in depriving candidates from participation or

changing the rule of selection, is found to be without any basis.

24. We find that while the word "corrigendum" would import

meaning of an error corrected, factually in the present case the respondents

have only issued a revised letter notifying to all the candidates who had

applied under the advertisement about incorporation of the amended Rule 17

providing for the candidates to appear for additional examination of Punjabi

language as a pre-requisite for selection and participation in the main

selection. Thus, it does not affect the candidates who are to participate in the

selection process. It is also noticed that participation in the pre-requisite

qualification and acquiring 50% marks in the Punjabi language only makes

them qualified to participate in the selection process. There is no change in

the selection process as the marks of Punjabi language are not included in the

main selection nor it changes the inter-se merit of the candidates. It also does

not deprive any candidate from participation. Hence, it cannot be said to be

an introduction of an additional qualification for the purpose of selection but

is a condition laid down for participation.

25. In several selection processes on account of huge number of

applicants, the selecting body may resort to a screening test. If such decision

is taken to conduct the screening test from amongst the participating

candidates, the same is not and cannot be treated to be change in the rule

while the selection process is going on. The candidates cannot be allowed to

contend that they should not be made subject to a screening test as has been

held by the Hon'ble Supreme Court in the case of M.P. Public Service

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Commission vs. Navnit Kumar Potdar and another 1994 (4) Scale 251, as

under:-

"6.The question which is to be answered is as to whether in the

process of short-listing, the Commission has altered or

substituted the criteria or the eligibility of a candidate to be

considered for being appointed against the post of Presiding

Officer, Labour Court. It may be mentioned at the outset that

whenever applications are invited for recruitment to the different

posts, certain basic qualifications and criteria are fixed and the

applicants must possess those basic qualifications and criteria

before their applications can be entertained for consideration.

The Selection Board or the Commission has to decide as to what

procedure is to be followed for selecting the best candidates

from amongst the applicants. In most of the services, screening

tests or written tests have been introduced to limit the number of

candidates who have to be called for interview. Such screening

tests or written tests have been provided in the concerned

statutes or prospectus which govern the selection of the

candidates. But where the selection is to be made only on basis

of interview, the Commission or the Selection Board can adopt

any rational procedure to fix the number of candidates who

should be called for interview. It has been impressed by the

courts from time to time that where selections are to be made

only on the basis of interview, then such interviews/viva voce

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tests must be carried out in a thorough and scientific manner in

order to arrive at a fair and satisfactory evaluation of the

personality of the candidate."

Similarly, the authorities have introduced a pre-requisite

qualification for passing Punjabi language test. Since all the candidates are

expected to have passed Punjabi language in the matriculate examination,

testing them on the said language in a selection process cannot be said to be

changing the rule. More so, as the marks obtained in the Punjabi language are

not the part of preparation of merit list for the main selection. It is also

noticed that examination for conducting selection had not taken place prior to

the issuance of revised letter. We are, therefore, satisfied that there is no

change in the rules of the game after the selection process has started.

26. In view of the judgments passed by Hon'ble the Supreme Court,

as cited above with regard to the issue, we find that in all the cases the

change in the rule was affecting the selection process and, therefore, the

Courts have intervened. We are satisfied on facts that the said principle has

no application to the facts of the present case. In view thereof, the contention

of learned counsel for the petitioners is found to be without any basis and is

rejected.

27. The challenge to the amended Rule 17 of Rules 2022, is on the

ground that the same has no nexus for the purposes sought to be achieved.

The following criteria has been laid down by Hon'ble the Supreme Court in

the case of Naresh Chand Aggarwal vs. The Institute of Chartered

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Accountant of India and others 2024 SCC OnLine 114, to examine the vire of

the rule:-

32. From reference to the precedents discussed above and taking

an overall view of the instant matter, we proceed to distil and

summarize the following legal principles that may be relevant in

adjudicating cases where subordinate legislation are challenged

on the ground of being 'ultra vires' the parent Act:

(a) The doctrine of ultra vires envisages that a Rule making body

must function within the purview of the Rule making authority,

conferred on it by the parent Act. As the body making Rules or

Regulations has no inherent power of its own to make rules, but

derives such power only from the statute, it must necessarily

function within the purview of the statute. Delegated legislation

should not travel beyond the purview of the parent Act;

(b) Ultra vires may arise in several ways; there may be simple

excess of power over what is conferred by the parent Act;

delegated legislation may be inconsistent with the provisions of

the parent Act; there may be non-compliance with the

procedural requirement as laid down in the parent Act. It is the

function of the courts to keep all authorities within the confines

of the law by supplying the doctrine of ultra vires.

it exceeds the power conferred by the parent Act, the Court

must, firstly, determine and consider the source of power which

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is relatable to the rule. Secondly, it must determine the meaning

of the subordinate legislation itself and finally, it must decide

whether the subordinate legislation is consistent with and within

the scope of the power delegated.

(d) Delegated rule-making power in statutes generally follows a

standardized pattern. A broad section grants authority with

phrases like 'to carry out the provisions' or 'to carry out the

purposes.' Another sub-section specifies areas for delegation,

often using language like 'without prejudice to the generality of

the foregoing power.' In determining if the impugned rule is

intra vires/ultra vires the scope of delegated power, Courts have

applied the 'generality versus enumeration' principle. (e) The

"generality versus enumeration" principle lays down that, where

a statute confers particular powers without prejudice to the

generality of a general power already conferred, the particular

powers are only illustrative of the general power, and do not in

any way restrict the general power. In that sense, even if the

impugned rule does not fall within the enumerated heads, that by

itself will not determine if the rule is ultra vires/intra vires. It 24

must be further examined if the impugned rule can be upheld by

reference to the scope of the general power.

(f) The delegated power to legislate by making rules 'for

carrying out the purposes of the Act' is a general delegation,

without laying down any guidelines as such. When such a power

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is given, it may be permissible to find out the object of the

enactment and then see if the rules framed satisfy the Act of

having been so framed as to fall within the scope of such general

power confirmed.

(g) However, it must be remembered that such power delegated

by an enactment does not enable the authority, by

rules/regulations, to extend the scope or general operation of the

enactment but is strictly ancillary. It will authorize the provision

of subsidiary means of carrying into effect what is enacted in the

statute itself and will cover what is incidental to the execution of

its specific provision. In that sense, the general power cannot be

so exercised as to bring into existence substantive rights or

obligations or disabilities not contemplated by the provisions of

the Act itself.

(h) If the rule making power is not expressed in such a usual

general form but are specifically enumerated, then it shall have

to be seen if the rules made are protected by the limits

prescribed by the parent Act."

28. In view of the above, if we test the rule on anvil of Article 14 of

the Constitution of India, we find that requirement of passing of Punjabi

Language in the State of Punjab for Group 'C' posts, cannot be said to be

unconstitutional. The language of Punjabi has been included in the list of

languages in 8th Schedule of the Constitution of India. Since, the same is a

language of the State of Punjab, in a federal form of government, the State of

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Punjab would be entitled to require its employees to have knowledge of

Punjabi language for the purpose of day to day activities and functioning in

the government offices and if for the said purpose, a pre-qualifying test with

50% marks across the board is laid down, the same cannot be said to be in

any manner, to go contrary to the Constitution. The respondents have not

denied any person to participate in the selection process. However, they can

lay down requirement of passing a particular subject or language of the State.

This Court is satisfied that such a requirement as added vide amendment

(supra), has a nexus to the purpose sought to be achieved. The rule, therefore,

is not found to be ultra vires and does not warrant any interference.

29. The judgments cited at bar (supra) by learned counsel for the

petitioners would have no application to the present case. In Ganga Ram

Moolchandani, Deepak Sibal and Dev Gupta's cases (supra), candidates were

being deprived from participation by laying down a qualification which only

suited to the persons based on domicile of the State, whereas the present

requirement of passing Punjabi test is with reference to the language of the

State which is in day to day functioning of the government. Merely because a

person has passed 10th class with Punjabi language, it cannot be said that the

language of Punjabi could not be tested for the purpose of appointment and

selection.

30. The submissions of learned counsel for the petitioners on the

ground of discrimination towards reserved category persons are concerned,

we find that the benefit of reservation in terms of Article 16(4) of the

Constitution of India is on the post and relaxation in terms of Article 15(4) of

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the Constitution of India can be provided but the same is an enabling

provision and no right is created in favour of a reserved category person.

Merely because the State has relaxed the educational percentage at the

educational qualification level, it is not essential for them to provide a similar

relaxation for the prequalifying examination. If such a relaxation is not

provided, this Court would not add a condition which is not framed by the

rule makers. In M. Nagraj and others vs. Unoin of India and others 2006 (8)

SCC 212, the Constitution Bench had held the provisions of Articles 15(4)

and 16(4) of the Constitution to be enabling provisions and it is upon the

discretion to be exercised based on collection of data that reservation and

benefits of relaxation in reservation could be provided. Since the test is

essentially a knowledge based test and not for the purpose of appointment,

we do not find any act of discrimination nor can it be said that unequals have

been treated equally as all the persons who are employed in the State

Government are required to possess the knowledge of language of the State.

The challenge to the rule on the aforesaid basis, therefore, fails.

31. Learned counsel for respondents No.5 to 11 also took this Court

to the provisions of the Punjab Official Language (Amendment) Act, 2008,

whereby the following amendment was brought into force to the Punjab

Official Language Act, 1967:-

"3-A (1) In all civil courts and criminal courts, subordinate to

the High Court of Punjab and Haryana, all revenue courts and

rent tribunals or any other court or tribunal, constituted by the

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State Government, work in such courts and tribunals shall be

done in Punjabi.

Explanation: For the purpose of this section, the words 'civil

court' and 'criminal court' shall have the same meaning as

respectively, assigned to them in the Code of Civil Procedure,

1908 and the Code of Criminal Procedure, 1973.

(2) The concerned Administrative Departments of the State

Government, shall make arrangements to provide necessary

infrastructure and training to the concerned staff, in order to

ensure the use of Punjabi in all courts and tribunals, referred to

in sub-section (1), within a period of six months from the date of

commencement of the Punjab Official Language (Amendment)

Act, 2008.

3-B. In all offices of the State Government, public sector

undertakings, boards and local bodies and offices of the schools,

colleges and universities of the State Government, all official

correspondence shall be made in Punjabi."

32. Additionally, a State Level Empowered Committee was also

formed by inserting Section 8-B and 8-C at the State Level and District Level

to review and ensure implementation of the Act. In view thereof, the

amendment is found to be in accordance with the provisions of the

Constitution.

33. We thus, find that there is neither any lack of legislative

competence nor there is any violation of fundamental rights guaranteed under

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Part-3 of the Constitution or of any constitutional provision while framing the

rule. However, we find that the respondents have conducted the examination

of Punjabi language in a whole different manner. Learned counsel for the

petitioners have taken us to the syllabus and exam of the Punjabi (Paper-A)

of the ETT, which reads as under:-

"Punjabi:

Gurmat Poet, Guru Nanak Dev Ji, Guru Amar Das Ji, Guru Arjan Dev Ji, Sufi Poet, Sheikh Farid, Shah Hussain, Bulleh Shah, Kisskaar, Peelu, Waris, Hashem Shah, Bir Kaav, Guru Gobind Singh, Shah Muhammad, Modern Punjabi Poetry, Bhai Veer Singh, Dhani Ram Chatrik, Prof. Puran Singh, Prof. Mohan Singh, Amrita Pritam, Surjeet Patar, Vaartak (Prose), Principal Teja Singh, S. Gurbaksh Singh, GIani Gurdit Singh, Dr. Narendra Singh Kapoor, Dr. Harpal Singh Pannu. STORY SECTION:

Sujan Singh, Waryam Sandhu, Kulwant Singh Virk, Ajit Kaur, Santokh Singh Dhir, Mohan Bhandari.

GRAMMAR:

Language and dialect, Script and Gurmukhi script, Sound perception, word recognition, sense perception, sense perception, sentence recognition, idioms, phrases, punctuation marks, abbreviation.

34. The syllabus for Paper-A as declared and placed on record as

Annexure P/18, in writ petition No.17495-2023, reflects that the examination

of Punjabi language has been incorporated by the respondents in a manner to

mean understanding all the Punjabi culture, religion, history of Punjab,

whereas the Paper of Punjabi language could have been limited to the subject

language, grammar and script aspects alone. Thus, the Paper-1 of Punjabi

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conducted for recruitment of ETT goes contrary to the provisions of the

amendment made in Rule 17 of the Rules, 2022 and also is in violation of the

Punjabi Official Language (Amendment) Act, 2008.

35. In view of the above, this Court finds support in the submissions

of learned counsel for the petitioners that the respondents have conducted the

examination supplanting the Rules of 2022. In Sant Ram Sharma's case

(supra), the Hon'ble Supreme Court held as under:-

"We pass on to consider the next contention of Mr. N.C.

Chatterjee that if the executive Government is held to have

power to make appointments and lay down conditions of service

without making rules in that behalf under the proviso to Art.

309, there will be a violation of Arts. 14 and 16 because the

appointments would be arbitrary and capricious. In our view,

there is no substance in this contention of the petitioner. If the

State of Rajasthan had considered the case of the petitioner

along with the other eligible candidates before appointments to

the selection posts there would be no breach of the provisions of

Arts. 14 and 16 of the Constitution because everyone who was

eligible in view of the conditions of service and was entitled to

consideration was actually considered before promotion to those

selection posts was actually made. It was said by Mr. C. B.

Agarwala on behalf of the respondents that an objective

evaluation of the merit of the officers is made each year and

promotion is made on scrutiny of the record- sheets dealing with

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the competence, efficiency and experience of the officers

concerned. In the present case, there is no specific allegation by

the petitioner in the writ petition that his case was not considered

along with respondents 3 & 4 at the time of promotion to the

posts of Deputy Inspector General of Police in 1955 or to the

rank of Inspector General of Police or Additional Inspector

General of Police in 1966. There was, however, a vague

suggestion made by the petitioner in paragraph 68 of his

rejoinder- petition dated July 17, 1967 that "the State

Government could not have possibly considered my case, as

they considered and even in this counter-affidavit consider Shri

Hanuman Sharma and Sri Sultan Singh senior to me by the new

type of seniority they have invented for their benefit". Even

though there is no specific allegation by the petitioner that there

was no consideration of his case, respondent No. 1 has definitely

asserted in paragraphs 23, 25, 40 and 44 of the counter-affidavit

that at the time of promotion of respondents 3 & 4 to the

selection posts of Deputy Inspector General of Police and of

Inspector General of Police the case of the petitioner was

considered. We are therefore of the opinion that the petitioner is

unable to substantiate his argument that there was no

consideration of his case at the time of promotion of respondents

3 & 4 to the selection posts. We must therefore proceed on the

footing that respondent No. 1 had considered the case of the

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petitioner and taken into account the record, experience and

merit of the petitioner at the time of the promotion of

respondents 3 & 4 to the selection grade posts. It is therefore not

possible to accept the argument of Mr. N. C. Chatterjee that

there was any violation of the constitutional guarantee under

Arts. 14 and 16 of the Constitution in the present case. Mr. N. C.

Chatterjee argued that the introduction of the idea of merit into

the procedure of promotion brings in an element of personal

evaluation, and that personal evaluation open is the door to the

abuses of nepotism and favouritism, and so, there was a.

violation of the constitutional guarantee under Arts. 14 and 16 of

the Constitution. We are unable to accept this argument as well-

founded. The question of a proper promotion policy depends on

various conflicting factors. It is obvious that the only method in

which absolute objectivity can be ensured is for all promotions

to be made entirely on grounds of seniority. That means that if a

post falls vacant it is filled by the person who has served longest

in the post immediately below. But the trouble with the seniority

system is that it is so objective that it fails to take any account of

personal merit. As a system it is fair to every official except the

best ones; an official has nothing to win or lose provided he does

not actually become so inefficient that disciplinary action has to

be taken against him. But, though the system is fair to the

officials concerned, it is a heavy burden on the public and a

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great strain on the efficient handling of public business. The

problem therefore is how to ensure reasonable prospect of

advancement to all officials and at the same time to protect the

public interest in having posts filled by the most able men? In

other words, the question is how to find a correct balance

between seniority and merit in a proper promotion-policy. In this

connection Leonard D. White has stated as follows:-

"The principal object of a promotion system is to secure

the best possible incumbents for the higher positions,

while maintaining the morale of the whole Organisation.

The main interest to be served is the public interest, not

the personal interest of members of the official group

concerned. The public interest is best secured when

reasonable opportunities for promotion exist for all

qualified employees, when really superior civil servants

are enabled to move as rapidly up the Promotion ladder as

their merits deserve and as vacancies occur, and when

selection for promotion is made on the sole basis of merit.

For the merit system ought to apply as specifically in

making promotions as in original recruitment.

Employees often prefer the rule of seniority, by which the

eligible longest in service is automatically awarded the

promotion. Within limits, seniority is entitled to

consideration as one criterion of selection. It tends to

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eliminate favouritism or the suspicion thereof; and

experience is certainly a factor in the making of a

successful employee. Seniority is given most weight in

promotions from the lowest to other subordinate positions.

As employees move up the ladder of responsibility, it is

entitled to less and less weight. When seniority is made

the sole determining factor, at any level. it is a dangerous

guide. It does not follow that the employee longest in

service in a particular trade is best suited for promotion to

a higher grade; the very opposite may be true".

(Introduction to the Study of Public Administration, 4th

Edn., pp. 380, 383).

As a matter of long administrative practice promotion to

selection grade posts in the Indian Police Service has been based

on merit and seniority has been taken into consideration only

when merit of the candidates is otherwise equal and we are

unable to accept the argument of Mr. N. C. Chatterjee that this

procedure violates, in any way, the guarantee under Arts. 14 and

16 of the Constitution. For the reasons expressed we hold that

the petitioner has been unable to make out a case for the grant of

a writ under Art. 32 of the Constitution. The petition accordingly

fails and is dismissed. There will be no order as to costs in the

Circumstances of this case."

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36. While conducting a pre-qualifying test for Punjabi language, the

respondents cannot be allowed to take an exam for the subject of Punjabi and

Punjabiath as that would amount to localizing and excluding the persons who

do not belong to Punjab from participating in the selection process. In Ganga

Ram Moolchandani's case (supra), Hon'ble the Supreme Court while relying

on the judgments passed in Waman Rao vs. Union of India (1981) 2 SCC

362, Atam Prakash vs. State of Haryana (1986) 2 SCC, Orissa Cement Ltd.

vs. State of Orissa, 1991 Supp. (1) 430, Union of India vs. Mohd. Ramzan

Khan (1991) 1 SCC 588 and Managing Director, ECIL vs. B. Karunakar

(1993) 4 SCC 727, has held as under:-

"Last submission of Shri Rao is that in case the Rules are held to

be ultra vires, the decision may be made prospective in operation

as for a period of 32 years, when the Rules remained in force,

innumerable appointments have been made thereunder which

should not be disturbed to avoid lot of complications. It is now

well settled that the courts can make the law laid down by it

prospective in operation to prevent unsettlement of the settled

positions and administrative chaos apart from meeting the ends

of justice. In the well-known decision of this Court in I.C.Golak

Nath & Ors. vs. State of Punjab & Anrs. , (1967) 2 SCR 762 the

question had arisen as to whether the decision in that case should

be prospective or retrospective in operation and the Court took

into consideration the fact that between 1950 and 1967, as many

as twenty amendments were made in the Constitution and the

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legislatures of various States had made laws bringing about an

agrarian revolution in the country which were made on the basis

of correctness of the decisions in Sri Sankari Prasasd Singh Deo

vs. Union of India and State of Bihar, 1952 SCR 89 and Sajjan

Singh vs. State of Rajasthan, (1965) 1 SCR 933 viz., that the

Parliament had the powers to amend the Fundamental Rights

and that Acts in regard to estates were outside the judicial

scrutiny on the ground they infringed the said rights. To meet

the then extraordinary situation that may be caused by the said

decision, the Court felt that it must evolve some doctrine which

had roots in reason and precedents so that the past may be

preserved and the future protected. In that case it was laid down

that the doctrine of prospective overruling can be invoked only

in matters arising under the Constitution and the same can be

applied only by this Court in its discretion to be moulded in

accordance with the justice of the cause or matter before it."