Punjab-Haryana High Court
Sajan vs Vishal Chaudhary And Ors on 13 May, 2024
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
Neutral Citation No:=2024:PHHC:061783-DB
LPA-1668-2023 and other connected matters 1
2024:PHHC:061783-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
202 2024:PHHC:061783-DB
LPA-1668-2023, 1670-2023, 1651-2023, 1671-2023,
1837-2023, 34-2024, 85-2024 and 201-2024 (O&M)
Reserved on: 19.04.2024 and 20.04.2024
Date of Decision: 13.05.2024
Sajan .....Appellant(s)
Versus
Vishal Chaudhary and others ....Respondent(s)
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA,
ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE LAPITA BANERJI
Present: Mr. Ashwani Kumar Chopra, Sr. Advocate with
Ms. Gurpreet Kaur Bhatti, Advocate,
Mr. Vidul Kapoor, Advocate, for the appellants in
LPA No. 1651-2023.
Mr. Prateek Mahajan, Advocate and
Mr. Daanish Mahajan, Advocate and
Mr. Mayank Vashisth, Advocate,
Ms. Prerna Malhotra, Advocate, for appellants
in LPA Nos. 1670, 1668, 1671 of 2023 & 201-2024 & 34-2024.
Mr. Jatinder Pal Singh, Advocate, for the appellants in
LPA No. 1837-2023 and 85-2024.
Mr. Rajiv Atma Ram, Senior Advocate with
Mr. Brijesh Khosla, Advocate and
Mr. Abhishek Arora, Advocate, for respondent No.24 in
LPA No. 1671 of 2023.
Mr. Amit Jhanji, Sr. Advocate with
Mr. Abhishek Premi, Advocate, for all private respondents
(except respondent No.24) in LPA No. 1671 of 2023.
Mr. Gaurav Chopra, Senior Advocate with
Mr. Anurag Chopra, Advocate for respondent No.1 in
LPA Nos. 1651 and 1668 of 2023.
Mr. Siddharth Gupta, Advocate, for respondent in
LPA No. 1668 of 2023.
Mr. Deepak Sabharwal, Advocate with
Mr. Suneet Pal Singh Aulakh, Advocate for respondent No.7
in LPA No. 1670 of 2023.
1 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
Mr. R.K.Malik, Senior Advocate with
Mr. Varunveer Chauhan, Advocate, for respondents
No. 2,4,7 and 8 in LPA No.1668-2023.
Mr. Karan Nehra, Advocate and
Mr. Harvinder Singh, Advocate,
Mr. Abhay, Advocate, for respondent No.3 in
LPA N. 34 of 2024.
Mr. Saurabh Bajaj, Advocate for the applicant in
CM No. 4702-LPA-2023 in LPA-1651-2023.
Mr. Baltej S.Sidhu, Senior Advocate with
Mr. Divij Datt, Advocate and
Mr. Gurpreet S.Brar, Advocate,
for respondent-Deepinder Money.
Mr. Saurav Khurana, Addl. Advocate General, Punjab &
Mr. Salil Sabhlok, Sr. Deputy Advocate General, Punjab-PPSC.
G.S.SANDHAWALIA, ACTING CHIEF JUSTICE
1. The present appeals, which are 8 in number, are directed against the
judgment dated 13.10.2023 passed by the learned Single Judge wherein, he
allowed the writ petitions filed by the private respondents and quashed the letter
dated 05.06.2023 (Annexure P-7) while deciding the bunch of 11 writ petitions,
the lead case of which was CWP-13497-2023, "Jyotsana Rawat and others vs.
State of Punjab and others". It was further directed that the State shall taken steps
to fill up the posts of the Assistant District Attorneys (in short 'ADAs') and the
Deputy District Attorneys (in short "DDAs') within a period of one month.
Reference is being made to LPA-1668-2023, Sajan vs. Vishal Chaudhary and
others, for the purpose of extracting the factual matrix.
2. Vide the abovesaid letter, the Office of the Director, Prosecution and
Litigation and Additional Secretary, Government of Punjab had asked all the
District Attorneys to give evidence to prove experience and claims, every year (6)
Court orders/interim orders for the purposes of proving the attendance in Court as
the list of the selected candidates had been sent by the Commission. Apparently,
the same was in pursuance of the earlier communication dated 02.06.2023
2 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
(Annexure P-6) whereby, the Department of Home Affairs and Justice, Judicial
Branch-II had written to the Director, Prosecution & Litigation, Punjab that the list
had been received from the Punjab Public Service Commission (in short 'the
Commission') containing the names of the selected candidates for the posts of
ADAs and DDAs and the evidence to prove their claims regarding experience of
every year and 6 Court orders/zimini orders in lieu of attendance in Court be sent
to the Government.
Reasoning of the Learned Single Judge :
3. The learned Single Judge, vide detailed judgment while dealing with
both the selection processes of DDAs and ADAs, came to the conclusion that the
matter regarding the 'Change of Rules of the Game" was still pending
consideration before the Apex Court in Tej Prakash Pathak vs. Rajasthan High
Court, (2013) 4 SCC 540 and, therefore, refrained from applying the said
principle. However, he examined the legality of the issue of the letter dated
05.06.2023 and while relying upon the judgment in Bar Council of India vs. A.K.
Balaji, (2018) 5 SCC 379; Devinder Singh vs. State of Haryana, (1997) 5 SLR
580 and Madan Lal vs. State of Jammu and Kashmir, 1995 (3) SCC 486 and held
that an Advocate once enrolled with the Bar Council would actually start practice
and, therefore, a certificate given by the Bar Association or by the concerned
Court would be valid and would have the same force as that of a certificate from
the judicial or quasi judicial authorities and the candidate was not required to
further prove his experience. The self attestation or an affidavit of being engaged
in advocacy alone could be obtained from a candidate. However, if there was
some doubt regarding his enrollment or he was not actually practicing law, the
said aspect would result in his being ousted under the Bar Council Rules.
Reference was also made to the Advocates Act, 1961 and the Rules of Legal
Education, 2008 framed to fall back on the practice of law and Article 220 of the
3 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
Constitution of India. The fact that a lawyer could be appearing before the Wakf
Board, Service Tribunal, Labour Courts and Industrial Tribunals or any other
tribunals or forums like Central Administrative Tribunal, Income Tax Appellate
Tribunal, District Consumer Courts and Commissions weighed with the learned
Single Judge while relying upon Section 24(7) Cr.P.C., whereby, it provided that
the Public Prosecutor or an Additional Public Prosecutor could be eligible to be
appointed if he had been practicing as an Advocate for not less than 7 years.
Resultantly, it was held that candidates who had been selected by the Commission
and from whom certificates had been demanded was non-application of mind.
4. The argument of the State that it has the power to examine the
suitability of the candidate recommended by the Commission was not accepted
and it was held that Article 320 of the Constitution of India empowers the
Commission to conduct the selection process. The same being statutory authority
(sic Constitutional Authority), it was held that the Secretary of the State could not
ignore the recommendations of the Commission by introducing an additional
requirement after the selection process had been concluded and recommendations
had been forwarded and the same was not permissible. The State Government
only had the power to examine the suitability of the candidate with reference to his
antecedents or his medical fitness or if there was any forgery or impersonation on
account of the selected candidate. The opinion given by Additional Advocate
General, Punjab on the basis of which the evidence had been called for was
adversely commented upon and a conclusion was arrived at that directions had
been issued earlier to conclude the selection process and on account of the
impugned action, the selection process had been put to a stand still. It is pertinent
to notice that the adverse comments against the said officer have been apparently
given without issuing notice to the said officer. Thus, it was observed that the
letter issued by the Superintendent of the Home Affairs and Justice Department,
4 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
Punjab Government demanding the selected candidates to submit certificates was
not sustainable. However, if the State Government wanted the selected Advocates
to have rich experience and practice in Courts, they should have incorporated such
conditions in the rules by making appropriate amendments and should have put a
condition in advertisement for demand of a particular certificate at the stage of
participation. Similar observation had earlier also flown from the learned Single
Judge that the State may consider amendment in the Rules while observing that
self attestation or an affidavit of being engaged in advocacy alone could be
demanded from the candidate.
Case of the writ petitioners before the Learned Single Judge :
5. A perusal of the writ petition i.e. CWP-13522-2023, Vishal
Chaudhary vs. State of Punjab, out of which LPA-1668-2023 arises, would go on
to show that the prayer in the writ petition was based on the fact that the result had
been declared in the month of March, 2023 by the respondent-Commission and
the name of the petitioner surfaced in the final combined merit list (Annexure P-
4). Directions had been issued in CRM-M-50353-2022 that the entire process of
appointment of DDAs be completed by 30.06.2023 without any further delay. The
impugned letter dated 05.06.2023 (Annexure P-7) was stated to be in violation of
the provisions of the advertisement and, thus, was liable to be set aside. It was
pleaded that attendance of the main counsel was marked and the attendance of
associates and juniors in orders is very rare and the Rules of the Game had been
changed after the game had been played.
Stand of the State Before the Learned Single Judge
6. The stand of the State, which is now at variance in the present Letters
Patent Appeal, was that the Punjab Prosecution and Litigation (Group A) Service
Rules, 2002 provide 7 years' experience at the Bar. The Government being the
employer in its wisdom had decided to recruit only experienced candidates who
5 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
are having actual experience at the Bar. The directly recruited DDAs would be
posted in the Courts of Additional District Judges and had to pursue session trials
which included ones pertaining to heinous crimes. The advertisement also
provided 7 years' experience and practice at the Bar and it was not optional but
mandatory apart from the academic qualifications of the Degree in Bachelor of
Law. The experience envisaged could not be given any less weightage than the
academic qualification and the definition of 'practice' as such includes a wider
connotation including chamber practice, pleadings, conveyancing, drafting and
rendering legal opinions. The person is said to be practicing at the Bar only when
he is actually appearing before the Courts of Law while falling back on the
definition in the Black's Law Dictionary which provided the definition 'at the Bar'
as before the Court. It was pleaded that freshly recruited DDAs do not have any
pre-induction training and those candidates who are experienced enough to
conduct the cases before the Court from the very first day after the recruitment
were required and the merit list must, therefore, be drawn from the eligible
candidates having requisite experience of 7 years of practice at Bar. Reliance was
placed upon the various clauses of the advertisement regarding the fact that the
candidates knew that the documents were subject to scrutiny and the candidature
was liable to be cancelled. Therefore, the argument that it was 'change of the rules
in the middle of the game' was not sustainable and the standard of scrutiny could
not be said to be 'Change of Rules'. The petitioners having failed to furnish zimini
orders, could not as such challenge the said action and it was an essential
qualification of experience. The certification of the chamber senior would amount
to recruiting an associate of an Advocate who is practicing at the Bar and the
advertisement did not prescribe as such. The Bar Association never had any
record of the Advocates appearing before the Court and the Bar Association at the
most could certify that after enrollment with the Bar Council, the candidate was
6 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
enrolled as a Member of Bar Association and it could not be a competent authority
to certify the experience or practice at Bar. Court record was the only source from
which the claim of practice at Bar could be verified. The recruitment process was
still in progress and the petition was pre-mature and the merit list also contained a
disclaimer and the Commission had reserved the right to rectify the same.
Stand of Commission before the Learned Single Judge
7. The respondent-Commission, in its reply, pleaded that under Article
320 of the Constitution of India, the Commission was established with the purpose
of recruiting officials in various departments of the Government of Punjab as per
the requisition sent by the Government in this regard from time to time. After
completing the recruitment process, vide letter dated 15.03.2023, the Commission
had sent the record of 63 short listed candidates for the 41 posts of DDAs, for
which the written examination was held on 18.12.2022. The list of provisionally
short listing the candidates was done from 30.01.2023 to 01.02.2023 and the
interviews were conducted from 28.02.2023 to 02.03.2023 and the result was
declared in March, 2023. The petitioner stood at Sr. No.41 in the combined merit
list and the impugned letters dated 02.06.2023 and 05.06.2023 had not been issued
by the Commission, who had not sought six interim orders from inspiring
candidates. The documents and certificates had been checked and on 30.01.2023,
the officials of the Department of Prosecution and Litigation, Government of
Punjab had been deputed to check the same documents and after scrutiny by the
said employees of the documents and certificates, the final merit list was prepared.
Stand of State before the Court in Appeal
8. An additional affidavit dated 04.12.2023 was filed by the Secretary to
the Government of Punjab, Department of Home Affairs and Justice, Shri Gurkirat
Kirpal Singh, in compliance of the order dated 08.11.2023 wherein the Co-
ordinate Bench had asked for filing of the additional affidavit as to how
7 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
experience of 7 years of an enrolled Advocate had been assessed for selection for
the posts of DDAs/ADAs and what was the criteria to be followed by the
Selection Committee. It is accordingly pleaded that the appellants did not have
any locus standi to file the appeals as they had already participated in the selection
process and were unsuccessful candidates as they failed to qualify the competitive
written examination and were subsequently not called for the interview or were
lower in merit and thus were not included in the final selection list.
9. Reference has been made specifically to the appellant in LPA-1668-
2023, Sajan that he had failed to qualify for the interview and was already
working as ADA recruited in the year 2014 and out of the total of 480 marks, he
had obtained only 256 marks and the last candidate shortlisted for interview had
obtained 273 marks. Similarly, Harpreet Singh, appellant in LPA-1651-2023 had
only got 268 marks and Binni Mittal, appellant in LPA-1837-2023 had got 249
marks. All the three were thus working as ADAs and were not within the zone of
consideration of two times the candidates to be called for interview. Harwinder
Singh in LPA-1670-2023 had scored 307.44 marks and was ranked at Sr.No.28 of
the General Category but there were only 16 posts out of which 7 were reserved
for women. Similarly, for the Assistant District Attorney, the appellant-Pankaj
Mittal in LPA-1671-2023 had got 268 marks whereas the last short-listed
candidate had obtained 375 marks. The appellants were thus only disgruntled
candidates who had participated in the selection process and were precluded from
challenging the same being aware of the rules which was uniform to all
candidates. The Department was facing a shortage of DDAs as 70 posts are lying
vacant which was leading to delay of trials.
10. The candidates possessing a professional degree in Law and
enrollment certificate and certificate from the Bar Association concerned would
substantiate the expression 'at the Bar' since that could only imply practice before
8 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
the competent Court of law. The rules not being challenged, the appellants were
not permitted to contend that the rules of the game had been changed midway
during the selection process. The procedure for selection was applied uniformly
by passing a competitive written examination and being shortlisted for appearing
in the interview for the posts of DDAs and there were no marks contemplated or
designated for the experience. The seven years experience for the DDAs and two
years for the ADAs, thus, could be verified in the following manner:
" " i. Degree of Professional Law,
ii. Certificate of Enrollment as an Advocate in the Bar Council,
iii. Certificate of Membership of the concerned Bar Association
duly certified by the President/Secretary of the Bar Association or the
Certificate given by the advocate with whom the candidate is
associated as a legal practitioner in the Bar Association of the
District Concerned.
iv. Certificate of All India Bar Examination successfully
qualified to practice as an Advocate conducted by the Bar Council of
India.'
11. It is pointed out that in earlier direct recruitments conducted by the
State to recruit DDAs in the Prosecution and Litigation Department, Punjab in the
years 2014 and 2016, no such challenge had been raised. Reliance was placed
upon various provisions of the advertisement that the candidates eligibility could
be checked at any time before or after the competitive examination/interview and
scrutiny was to be undertaken firstly by the Punjab Public Service Commission
and secondly, by the Committee constituted by the Secretary/Incharge,
Department of Home Affairs. The verification was done for the 64 provisionally
selected candidates and the list was uploaded on 20.01.2023 of the shortlisted
candidates. After that, exercise of the third verification of the experience
certificate from the issuing authority had been undertaken. The appeals were
vague and if the selected candidates did not have the real experience, the
9 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
documentary proof should be provided by the appellants to substantiate the
grievance. The posts could not be filled on account of the interim orders passed
and the letter of appointments could not be issued and there were total 399 posts
of ADAs and 130 posts of DDAs that were lying vacant and work was suffering in
various Courts.
Supplementary stand of Commission :
12. The Commission filed its independent supplementary affidavit in
pursuance of the directions issued by this Court on 18.03.2024, clarifying that all
the candidates filled in different formats as there was no prescribed format. The
persons of the Department were deputed for assistance only on the request of the
Commission on 23.01.2023 and they were not having any access to any other area
or aspect of the recruitment process and no candidate was rejected by the
Commission out of those who had produced the documents. The result had
accordingly been forwarded by the Commission vide its letter dated 14.03.2023
(Annexure R-3) and the record had been asked to be collected from the candidates
for further process. No ineligible candidate had been allowed to participate in the
interview process and therefore, candidates twice the number of vacancies had
been called for the interview. Keeping in view the vacancies, the following table
was given showing how the candidates were called for interview:
Sr. Code Category Total Posts Applied Present Pass Shortlisted
No.
1 71 General Category 16 666 419 207 32
2 92 General Economically 4 10 6 4 4
3 72 ESM, Punjab 3 3 3 0 0
4 73 LDESM, Punjab 11 9 0 0
5 74 Ward of Freedom 1 7 5 1 1
Fighter, Punjab
6 76-A Blind and Low Vision 1 1 1 1 1
7 77 SC Others, Punjab 5 237 152 46 10
8 80 SC Sports Person, 1 0 0 0 0
Punjab
9 81 Balmiki/Mazhbi Sikh, 5 109 75 16 10
Punjab
10 82 Balmiki/Mazhbi Sikh 1 0 0 0 0
ESM, Punjab
11 83 Balmiki/Mazhbi Sikh 1 0 0 0
10 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
LDESM, Punjab
12 85 BC, Punjab 3 135 88 44 6
13 86 BC ESM, Punjab 1 0 0 0 0
14 87 BC LDESM, Punjab 5 5 0 0
Total 41 1185 763 319 64
13. It was submitted that there is no ambiguity in the certificates
produced by the candidates which were in different formats and it prayed that the
appeals be dismissed without getting permission for leave to appeal.
ARGUMENTS IN THE CASES OF DEPUTY DISTRICT ATTORNEYSion.
14. The argument raised by the appellants through Mr. Ashwani Chopra,
Sr. Advocate and Mr. Prateek Mahajan, Advocate is that the employer was not
barred from checking the eligibility of the candidates and the change of the stand
by the State in the affidavit in the form of written statement is not permissible.
Mr. Jatinder Pal Singh, Advocate for the appellants in LPA-1837-2023 and LPA-
85-2024 has accordingly argued that the experience of practice at Bar had to be
before the Court and Section 24 of the Advocates Act, 1961 provides for
enrollment and the reference of 'practice of law' was a wider term and it was never
the case of the writ petitioners that they had the necessary practice. It was
accordingly contended that merely being member of the Association would not as
such mean that candidates had essential qualifications and had only certain
privilege had been given and it was not necessary to be a member of the Bar
Association and thus it was not a competent authority to give a certificate. There
were no certificates by District Judges or Registrars and the State was only
seeking the presence of the selected candidates in Court by way of asking for
zimini orders. Session trial cases were to be conducted by the Deputy District
Attorneys and offences of heinous crimes were to be supervised by the
Prosecutors and the State could not now take a contrary stand in the additional
affidavit. It is submitted that 319 candidates had passed having the 40% cut off as
per the additional affidavit now filed by the Commission and, therefore, the
11 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
eligibility had to be seen from the 319 candidates who had passed rather than
restricting the zone of consideration from the candidates on the top or to the extent
of twice the number against the posts which had been advertised. The writ
petitioners did not have the qualification of practice and, therefore, the learned
Single Judge was not correct in setting aside the said letters issued by the State.
15. Mr. Jhanji and Mr. Chopra, Senior Counsels, representing the writ
petitioners/selected candidates, submitted that as per Clause 8.6, the experience
certificate which were being considered, were the Bar Council certificate
alongwith Bar Association certificate and they had the necessary qualifications.
They had been duly interviewed and had the necessary enrollment certificates and
the necessary checking had been done. The assessment had been done by the
Interview Panel and they had actual practice.
16. Mr. Karan Nehra, Advocate has pointed out that the Assistant District
Attorneys who were in service wanted to stall the direct recruitment process of the
Deputy District Attorneys and filed appeals. They were not in the zone of
consideration. Only at a later point of time, they had stepped in. As per Clause
6.8.1, candidates not having more than 2 times the number of posts in the order of
merit of written examination having secured the cut off were liable to be short
listed for appearing in the interview. The order of merit was limited only to two
times. The fairness of the procedure was never in question and, therefore, the non-
intervenors had no right.
17. Mr. Salil Sabhlok, counsel for the Commission also highlighted the
fact that two times the number of candidates was the requirement and the
experience was being counted on the basis of Bar Council certificates. Mala fides
as such had not been alleged and that the process had been followed year after
year and the State was only checking the eligibility.
12 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
18. Mr. Saurav Khurana, Addl. A.G., Punjab, on the other hand,
submitted that there was no locus standi since the appellants had not even cleared
the basic cut off and were not in the zone of consideration. He accordingly
referred to his affidavit to submit that many of the appellants had failed to qualify
in the interview and the change of the stand of the State was only on account of
the fact that the State has chosen to accept the decision since prosecution
department was facing extreme shortage of the posts which were sought to be
filled and there was no mala fides as such. It is accordingly submitted that having
chosen to take part in the selection process and without having objected to it
earlier, the appellants were not entitled to challenge the decision of the learned
Single Judge on the principle of estoppel as laid down by the Apex Court.ciprt.
Factual matrix pertaining to cases of Assistant District Attorneys :
19. For the said posts, vide advertisement dated 30.04.2022, 119 posts
were advertised, which would be clear from Annexure P-3 of CWP-13497-2023
out of which LPA-1671-2023, "Pankaj Mittal vs. Jyotsana Rawat and others"
arises. The following essential qualifications were required with which we are
concerned alongwith the two years experience of practice at the Bar:-
"Persons who possess a degree of Bachelor of Law
(Professional Degree) of a recognized university or institution
or who are Barristers of England or Ireland or are members
of Faculty of Advocates of Scotland and are eligible for being
enrolled as an Advocate under Advocates Act, 1961, and who
have two years experience of practice at the Bar."
20. The written competitive exam was to consist of 120 questions as per
Clause 6.1 of 4 marks each totalling to 480 marks and there was no interview for
the said post. The minimum marks for eligibility to be appointed were 40% in the
competitive exam for the general category and 35% for candidates belonging to
Scheduled Castes of Punjab and Backward Classes of Punjab, as per Clause 6.8.3
13 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
and the selection for the post was to be finalized on the basis of written
examination only. Thus, the necessary requirement of obtaining 192 marks (40%)
and 168 marks (30%) for the candidates was the mandate before they could be put
in the zone of consideration and eligibility was accordingly to be determined as
per the cut off date of the advertisement which was 20.05.2022 as per Clause
6.7.2. The exam was held on 06.11.2022 and the short-listing of 226 candidates
was done and the scrutiny of the documents took place between 10.01.2023 to
12.01.2023. Resultantly, on 18.01.2023 (Annexure P-6), on various deficiencies
having been noticed in various required documents, the Commission called for the
relevant documents through e-mail or by hand. Mr. Prateek Mahajan, Advocate
appearing for the appellants has vouched for the action of the State.
21. A perusal of the deficiencies would go on to show that various
documents were required including resident certificate, original LDESM
certificates, Bar Council certificates, proof of date of birth and enrollment
certificate with Bar Council, EWS certificates and proof of Indian nationality. The
said exercise was repeated by another notice dated 15.02.2023 while specifying
that six roll numbers had not done the needful and they were given two days' time
to do the needful, failing which, their posts may be cancelled. Vide notice dated
23.02.2023, the result was declared for various categories and the six roll numbers
mentioned in public notice dated 15.02.2023, who had not furnished the required
documents were declared ineligible. 15 roll numbers were put in the result subject
to final outcome of various writ petitions pending before this Court. On
03.03.2023, the Commission as such sent the record of 218 candidates manually
through one of its officials to the Secretary, Government of Punjab, Department of
Home Affairs and Justice (Annexure R-1). It is on 02.06.2023 (Annexure P-10),
the impugned letters were issued whereby, the candidates were asked to prove
their experience by 6 court orders of each year. The said communication was
14 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
followed up on 05.06.2023 wherein the same exercise was sought to be conducted
that 6 court orders/zimini orders of each year were asked for from where the
presence in the Court could be ascertained.
Arguments in the case of ADAs :
22. Resultantly, keeping in view the above, it is the argument of the
senior counsel Mr. Rajiv Atma Ram for the selected candidates/writ petitioners
that the present appeal filed by Pankaj Mittal is not liable to be entertained since it
is on the basis of an application with a prayer to allow leave to appeal. The said
appellant was only an intervenor in the writ petition while referring to the interim
order passed before the learned Single Judge on 17.07.2023. The limited relief
which had been granted to him under his application under Order 1 Rule 10 CPC
was to be impleaded in CM-10924-CWP-2023 to the extent that a hearing would
be given as per order dated 17.07.2023. He had never been allowed to be
impleaded as a party and, therefore, could not challenge the said order. It is
pointed out from the merit list that he was at Sr. No.709 having Roll No.56564.
His name was never in the initial list of candidates and he had never challenged
the said list by filing any writ petition and had, thus, accepted the fact that he was
not in the zone of consideration. In the absence of any legal right and having not
been considered as such not coming in the zone of consideration, he could not at
this belated stage, object to the judgment which had quashed the orders dated
02.06.2023 (Annexure P-10) and 05.06.2023 (Annexure P-11).
23. Counsel for the respondents has accordingly argued that there were
two views possible and there was no illegality in the order of the learned Single
Judge and the practice at the Bar would mean a certificate as such from the Bar
Council and Bar Association and the Commission having weeded out the
ineligible candidates, the Government could not as such ask for the Court orders.
Reliance was accordingly placed upon the fact that the requirement of an
15 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
experience certificate under Clause 8.6(v) was only which was to be issued by
competent authority and it would not be applicable to the experience since the
definition of competent authority under Clause 12.7.3 had been shown as the
Deputy Commissioner, Additional Deputy Commissioner, SDM, Executive
Magistrate, PCS Officers, Tehsildar which would only pertain to the certificates
which were to be issued for the reserved candidates and not pertaining to the
eligibility criteria as such. The Commission was the recruiting agency and having
done so, it is not for the Government as such to substitute its opinion and take over
the recruitment process. It is submitted that the 6 candidates who did not produce
the certificates had been rendered ineligible as per the notices dated 15.02.2023
and as the final result had been declared on 23.02.2023. Thus, the Commission
had accepted the certificates of the Bar Councils and the Bar Associations and it is
not for the Government to substitute its opinion.
Legal Issues Arising For Consideration
24. The two legal issues which would arise for consideration before this
Court would be as under:-
1) Whether the appeals would be maintainable by the present
appellants who are apparently not within the zone of consideration and had never
raised any challenge to the list forwarded by the Commission?
2) Whether the judgment of the learned Single Judge taking the
view that the certificates relied upon by the short listed candidates regarding their
professional degree of law and enrollment as an Advocate in the Bar Council or
membership of the concerned Bar Association would be sufficient as such to
satisfy the eligibility aspect as done by the Commission and whether the State
Government had any role to play in the said process.
Our Findings on Issue No.1
16 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
25. It is not disputed that for the 41 posts of the Deputy District Attorneys
which were advertised on 05.04.2022 (Annexure P-1), the essential qualifications
which were required read as under, which also provided that there was 7 years'
experience required at the Bar as per Clause 4. The said clause reads thus:-
"4. ESSENTIAL QUALIFICATIONS:-
4.1 Persons who possess a degree of Bachelor of Law
(Professional Degree) of a recognized university or institution
or who are Barristers of England or Ireland or are members
of Faculty of Advocates of Scotland and are eligible for being
enrolled as an Advocate under Advocates Act, 1961, and who
have 7 years' experience of practice at the Bar."The
26. The written competitive examination provided 120 questions of 4
marks each totalling 480 marks. The interview was to carry 60 marks. Thus, the
totalling was 540 marks. In order to qualify and come within the zone of
consideration of two times the number of posts in the order of merit of written
examination, 40% was the requirement in the written examination for general
category and 35% for the reserved categories for Scheduled Castes of Punjab and
Backward Classes of Punjab. The cut off date was 26.04.2022 and the written test
was held on 18.12.2022. Apparently, the scrutiny was done in pursuance of the
letter written by the Commission on 30.01.2023 after getting help from the staff of
the appointing authorities between 31.01.2023 and 01.02.2023. The merit list was
then published on 02.03.2023 (Annexure P-4) and on 15.03.2023, the Commission
recommended the names of 63 short listed candidates. The said action of the
Commission has never been a subject matter of challenge. Apparently, the State
took a legal opinion on 23.05.2023 and issued the impugned letters on 02.06.2023
and 05.06.2023 and resultantly, the matter went into litigation by the selected
candidates.
17 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
27. The position of law on the first issue is crystal clear that a dis-
satisfied candidate as such having sat in the examination and having accepted the
terms and conditions cannot turn around and question the process, specially more
so, having not filed any writ petition at an earlier point of time. The appeals, as
noticed, arise out of the judgment of the learned Single Judge whereby the short
listed candidates whose names were forwarded by the Commission had been
asked to get proof of their eligibility to the extent of producing zimini orders to
show their presence in the Court. The subject matter of challenge before the
learned Single Judge was that whether the appointing authority had any
jurisdiction as such to scrutinize the eligibility criteria which was apparently done
by the Commission at its own level. Resultantly, the learned Single Judge had
decided the writ petition in favour of the writ petitioners. Having accepted the
terms and conditions of the advertisement and the short listing aspect, the
candidates are bound by the conditions of the advertisement and now cannot turn
around and challenge the same. In Madan Lal and others vs. State of Jammu
and Kashmir and others, (1995) 3 SCC 486, the said view had been laid down.
The relevant portion reads thus:-
"9. Before dealing with this contention, we must keep in
view the salient fact that the petitioners as well as the
contesting successful candidates being concerned respondents
herein, were all found eligible in the light of marks obtained in
the written test, to be eligible to be called for oral interview.
Up to this stage there is no dispute between the parties. The
petitioners also appeared at the oral interview conducted by
the concerned Members of the Commission who interviewed
the petitioners as well as the concerned contesting
respondents. Thus the petitioners took a chance to get
themselves selected at the said oral interview. Only because
they did not find themselves to have emerged successful as a
result of their combined performance both at written test and
18 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
oral interview, that they have filed this petition. It is now well
settled that if a candidate takes a calculated chance and
appears at the interview then, only because the result of the
interview is not palatable to him he cannot turn round and
subsequently contend that the process of interview was unfair
or Selection Committee was not properly constituted. In the
case of Om Prakash Shukla v. Akhilesh Kumar Shukla and
Ors., (AIR 1986 SC 1043), it has been clearly laid down by a
Bench of three learned Judges of this Court that when the
petitioner appeared at the examination without protest and
when he found that he would not succeed in examination he
filed a petition challenging the said examination, the High
Court should not have granted any relief to such a petitioner.
10. Therefore, the result of the interview test on merits cannot
be successfully challenged by a candidate who takes a chance
to get selected at the said interview and who ultimately finds
himself to be unsuccessful. It is also to be kept in view that in
this petition we cannot sit as a Court of appeal and try to
reassess the relevant merits of the concerned candidates who
had been assessed at the oral interview nor can the petitioners
successfully urge before us that they were given less marks
though their performance was better. It is for the Interview
Committee which amongst others consisted of a sitting High
Court Judge to judge the relative merits of the candidates who
were orally interviewed in the light of the guidelines laid down
by the relevant rules governing such interviews. Therefore, the
assessment on merits as made by such an expert committee
cannot be brought in challenge only on the ground that the
assessment was not proper or justified as that would be the
function of an appellate body and we are certainly not acting
as a court of appeal over the assessment made by such an
expert committee."
28. The said view was followed in K.A. Nagamani Vs. Indian Airlines
and others, (2009) 5 SCC 515; Manish Kumar Shahi vs. State of Bihar and
19 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
others, (2010) 12 SCC 576; Madras Institute of Development Studies and
another vs. K. Sivasubramaniyan and others, (2016) 1 SCC 454.
29. In Ashok Kumar and another Vs. State of Bihar and others, (2017)
4 SCC 357, a Three Judge Bench of the Apex Court, while dealing with the
promotions of Class-IV to Class-III posts in District Courts, held that candidates
who had taken part in the selection process were not entitled to question the same
and to hold out that the same was without jurisdiction and it was impermissible. It
was noticed that the written examination was to carry certain marks and the
interview marks were also specified and having participated in the selection
process, they could not question the interpretation of the rule. Rusultantly, the
order of the Division Bench upsetting the order of the Learned Single Judge was
upheld where the Division Bench of the High Court followed the said principle.
30. Similarly, in Ramjit Singh Kardam Vs. Sanjeev Kumar & others,
AIR 2020 (SC) 2060, the issue was that without any allegation of mala-fides, the
writ petitioners could not lay challenge to the criteria of selection after they had
participated in the same. Resultantly, it was held that the only exception would be
if the criteria was changed and otherwise candidates who had participated in the
selection process would be barred. It was noticed in the said case that the
Chairman of the Commission had changed the rules of the game and objections
taken regarding the challenge raised could not be sustained in the peculiar facts in
the absence of any mala-fides against the Chairman or the Members of the
Commission. The concept of 'malice in fact' and 'malice in law' has to be kept in
mind which was also dealt with in the above-said judgment wherein it was held
that 'malice in law' is something done without the lawful excuse and malice in
fact is an actual malicious intention on the part of the Members who have done the
wrongful. In the absence of any such allegations being raised against the selecting
body, we are of the considered opinion that the appellants are estopped from
20 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
challenging the findings of the Learned Single Judge having never chosen to
question the selection at any point of time after the shortlisting of the candidates.
Findings regarding DDAs :
31. The appellants had only a right of consideration and having not come
within the zone of consideration and in the absence of any malice or malafides,
cannot in appeal by filing an application for grant of leave to appeal, challenge the
decision of the learned Single Judge. The Commission was empowered to device
the mode of selection and scrutinize the documents for the selection of the posts of
the selected candidates. Having done so as per the terms of the advertisement and
forwarded the list as such to the State, it was not within the power of the State as
such to question the wisdom of the Commission, which is a constitutional body. It
is to be noticed that for the 41 posts advertised for the post of DDAs, the
Commission has wherever found possible, recommended two time candidates by
short listing the same and forwarded the same to the Government. The same was
done in pursuance of the criteria which was part of the advertisement after
interviewing the said candidates. Clause 6.8.1 provides that not more than two
times the number of posts in the order of merit of the written examination who had
secured minimum percentage in the written examination were to be short listed for
appearing in the interview. The final result was, thus, to be prepared as per Clause
6.9.1 on the basis of the grand total of the marks obtained in the written
competitive exam and the interview. The checking was to be done after the
competitive examination/interview and the eligibility conditions, if not fulfilled,
the examination was likely to be cancelled by the Commission if the claim was
found to be incorrect as per Clause 6.7.3. Similarly, the scrutiny of the application
forms was to be done after the conduct of the examination.
32. As noticed, the officials of the State were associated with the limited
purpose for scrutinizing the documents from 31.01.2023 to 01.02.2023 by issuing
21 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
the requisite letter dated 30.01.2023 in the case of the DDAs. It was thereafter the
interviews were held between 28.02.2023 to 02.03.2023 and the merit list was
then published by the Commission. The names were then recommended on
15.03.2023. The State chose to take a legal opinion on 23.05.2023, on the basis of
which, it sought to take over the role as such of the Commission regarding the
checking the eligibility part. The learned Single Judge, thus, came to the
conclusion that it was not the duty of the State as such and allowed the writ
petitions.
33. Clause 6.7.2 provides that the candidates not meeting the eligibility
criteria would be rejected after the scrutiny process or any time if found ineligible
and the cut off date as such was 26.04.2022, which was regarding the relevant
documents, which necessary exercise was done by the Commission. It is in such
circumstances 64 persons were short listed against the 41 posts against various
categories as noticed in Para No.12. It is apparent that against 666 persons who
had applied against the 16 general seats, only 419 had come present and out of
them, only 207 had passed the test. 32 persons in the general category had, thus,
been short listed and their names forwarded and the persons who had, thus, not
come within the zone of two times, their names were never forwarded. The
appellants are that set of persons whose names were never forwarded and,
therefore, they cannot now agitate for consideration. Clauses 6.7.2, 6.7.3 and
6.8.1 read thus:-
"6.7.2 The scrutiny of application forms shall be done
after the conduct of the examination. During the process of
scrutiny, the application forms and other relevant documents,
certificates, etc. of the candidates shall be examined to
determine their eligibility as on 26/04/2022. Candidates not
meeting the eligibility criteria will be rejected after the
scrutiny process or any time thereafter if found ineligible.
22 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
6.7.3 The candidates applying for the Competitive
Examination should ensure that they fulfill all the eligibility
conditions for admission to the examination. Their admission
at all the stages of examination for which they are admitted by
the Commission viz. Competitive Examination and Interview
will be purely provisional, subject to their satisfying the
prescribed eligibility conditions. If on checking at any time
before or after the Competitive Examination/ Interview, it is
found that they do not fulfill any of the eligibility conditions
their candidature for the examination will be cancelled by the
Commission. If any of their claims is found to be incorrect,
they may render themselves liable to disciplinary action by the
Commission or the civil court. Any attempt on the part of a
candidate to obtain support for his candidature by any unfair
means will render him/ her liable for disqualification and
disciplinary action.
6.8 INTERVIEW
6.8.1 Candidates not more than two times the number of
posts (in their order of merit of written examination? Who
have scored a minimum of 40 percent marks in written
examination (35% for candidates of Scheduled Castes of
Punjab and Backward Classes Punjab) will be short-listed for
appearing in the interview. However, this number shall be
subject to variation if two or more candidates at the bottom of
this list (the number at the end) get equal marks. In such case,
then all of them will be considered for appearing in the
Interview (subject to eligibility), warranting the corresponding
increase in the stipulated ratio."
34. In such circumstances, the writ petitioners and the State are well
justified to submit that the appeals are not maintainable as such from the side of
the candidates who never made the cut and were never within the zone of
consideration of two times the candidates as per the terms of the advertisement.
Findings in case of ADAs :
23 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
35. Similarly, in the case of the ADAs, since there was no interview to be
conducted, the exam had been held on 06.11.2022 for the 119 posts advertised
vide advertisement dated 29/30.04.2022. A short listing of 226 candidates was
done on 05.01.2023 (Annexure P-5) and the scrutiny of the documents then took
place from 10.01.2023 to 12.01.2023. Various deficiencies had been noticed in
documents and on 18.01.2023, the Commission had called for the relevant
documents through e-mail vide notice dated 15.02.2023. Six candidates whose
roll numbers were mentioned were asked to do the needful and 2 days' time was
given to them to give documents to overcome the deficiencies, failing which, their
posts would be cancelled. Not having done so, the result was declared on
23.02.2023 for the said posts and the 6 candidates had been declared ineligible.
After having sent the names to the Government, the impugned letters were issued,
as noticed on the same principle as of the DDAs. The cut off date as such was
20.05.2022 as per Clause 6.7.2 of the advertisement and the final result was to be
prepared on the basis of net marks obtained in the written competitive examination
since there was no interview to be conducted. As per Clause 6.7.1, the acceptance
of applications by the Commission did not indicate the acceptance of candidature
and the scrutiny was to be done only after the conduct of the examination, to
determine the eligibility. The right as such remained with the Commission as such
that if the candidate did not fulfill the eligibility, their candidature was liable to be
cancelled by the Commission as per Clause 6.7.3. The claim of the State as such
to take over the role of the Commission has been rightly cut short by the learned
Single Judge. The relevant Clauses read thus:-
"6.7 ELIGIBILITY AND SCRUTINY OF APPLICATION
FORMS AND TESTIMONIALS
6.7.1 All candidates who apply for the ibid posts
will be treated "provisionally eligible" for appearing in the
competitive exam. Acceptance of applications at this stage and
24 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
allotment of Roll Numbers by PPSC does not indicate
acceptance of candidature by the PPSC, since there is no
scrutiny of documents before the written Exam.
6.7.2 The scrutiny of application forms shall be
done after the conduct of the examination. During the process
of scrutiny, the application forms and other relevant
documents, certificates, etc. of the candidates shall be
examined to determine their eligibility as on 20/05/2022.
Candidates not meeting the eligibility criteria will be rejected
after the scrutiny process or any time thereafter if found
ineligible.
6.7.3 The candidates applying for the Competitive
Examination should ensure that they fulfill all the eligibility
conditions for admission to the examination. Their admission
at all the stages of examination for which they are admitted by
the Commission viz. Competitive Examination will be purely
provisional, subject to their satisfying the prescribed eligibility
conditions. If on checking at any time before or after the
Competitive Examination, it is found that they do not fulfill
any of the eligibility conditions their candidature for the
examination will be cancelled by the Commission. If any of
their claims is found to be incorrect, they may render
themselves liable to disciplinary action by the Commission or
the civil court. Any attempt on the part of a candidate to obtain
support for his candidature by any unfair means will render
him/ her liable for disqualification and disciplinary action."
36. It is, thus, apparent that the persons who had been short listed were,
thus, being again scrutinized by the State on the pretext of getting zimini orders,
which was not permissible. It was only within the purview of the Commission as
such who had accordingly forwarded the names by short listing the same on the
parameters which had been laid down in the advertisement. The appellants not
being within the zone of consideration, had accepted the merit list which had been
sent and had never challenged the short listing process by filing the writ petition.
25 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
It is only when the State as such questioned the experience aspect of the short
listed candidates, the appellants herein chose to intervene in the proceedings
before the writ Court. Therefore, keeping in view the law laid down in the above
judgments, they cannot be permitted to do so.
37. It is a matter of record that it is the own case of the appellants
themselves that applicant-Pankaj Mittal had filed an application under Order 1
Rule 10 CPC for impleadment bearing CM-10924-CWP-2023 in CWP-13497-
2023 for impleadment as respondent No.4. Similar applications were also filed in
other cases. A perusal of the application would go on to show that the case put-
forth was that the applicant was eligible having more than 6 appearances before
the Courts of law and his name was mentioned in the merit-list at Sr.No.709
against Roll No.56564. The plea taken was that the applicant was likely to fall
within the zone of consideration if the writ petitioners and other petitioners had
not counted practice at the Bar are held to be disqualified for appointment as they
do not fulfill the eligibility conditions. Thus, wanting to bring additional facts
before the Court, the applicant pleaded for impleadment.
38. The Learned Single Judge never allowed the applications and only
gave them permission to be heard as interveners which would be clear from the
order dated 17.07.2023. Same reads as under:
"Application bearing No.CM-10924-CWP-2023 in
CWP-13497-2023 has been filed for impleadment of applicant
as respondent no.4 in the Writ Petition; application bearing
No. CM-10914-CWP-2023 in CWP-13522-2023 has been filed
for impleadment of applicants as respondent nos. 4 to 6 in the
Writ Petition; and application bearing No. CM-11202-CWP-
2023 in CWP-13525-2023 has been filed for impleadment of
applicant as respondent no.4 in the Writ Petition;
26 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
For the reasons stated in the applications, the same are
allowed to the extent that the applicants shall be heard as
intervenors in the Writ Petitions.
List again on 16.08.2023.
To be shown in the Urgent List.
Photocopy of this order be placed on the files of the
connected cases."
39. In the present appeals preferred, necessary applications have been
filed with the prayer to allow leave to appeal bearing CM-4230-LPA-2024 in LPA-
1668-2023, on the ground that the appellant has material interest in the matter and
that they had been allowed to intervene in the matter vide order dated 17.07.2023.
In such circumstances, we are of the considered opinion that the applications are
not liable to be allowed in the peculiar facts and circumstances and the appellants
cannot choose to question the judgment of the Learned Single Judge having been
satisfied with the process of the recruitment and never having come within the
ambit of the two times of the candidates who were to be short-listed in both the
categories. In LPA-1651-2023, the appellant was never a party to the writ petition
i.e. CWP-13522-2023 and had filed CM-10914-CWP-2023. He, however, has not
filed any application for leave to appeal under Rule 2 of Chapter 1 Part C of the
High Court Rules and Order, Vol.5 and, therefore, the appeal otherwise is not
maintainable at his instance. Merely because he had filed an application for
impleadment of respondent No.4, which was never allowed, he cannot file the
present appeal. Rule 2 reads thus:-
"2. Appeals by persons other than parties to the decree
or order appealed from.- Whenever by a decree or order
which appealable to the High Court the interest of-
(a) a beneficiary in property which at the date of such
decree or order was vested in or in the possession of a trustee,
an executor, an administrator, or a receiver or manager
appointed by a court who as such was a party to such decree
27 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
or order; or Procedure to make respondent the legal
representative of a deceased party who died after the decree
or order appealed from. Appeals by persons other than parties
to the decree or order;
(b) a legal representative as such of a deceased party to
such decree or order; or
(c) an assignee of a party to such decree or order by
assignment subsequent to the date of such decree or order; or
(d) a person whose interest arose after the date of such
decree or order by reason of any creation or devolution of
interest, by, through, or from any party to such decree or order
is affected;
and such beneficiary, legal representative, assignee, or person
was not or has not been made a party to such decree or order
or to proceedings thereunder or thereon and desires to present
to the High Court for admission a memorandum of appeal
from such decree or order, he may name himself therein as an
appellant if at the time when he presents such memorandum of
appeal for admission he along with such memorandum of
appeal presents an application for leave to make himself an
appellant, and, except as hereinafter provided, an affidavit
stating such facts as may be necessary in support of his
application : Provided always, that a Judge of the High Court
may, by an order allow in his discretion a reasonable time in
that behalf for the presentation of such an affidavit, if it
appears to him that the applicant could not by the exercise of
due diligence have procured such affidavit in time for
presentation along with the memorandum of appeal."
40. Similarly, in LPA-201-2024, one candidate has filed the appeal along
with application for leave to appeal on the ground that she had participated in the
recruitment process of Assistant District Attorney and was placed at Sr.No.2 of the
category of 'Locomotor Disability' and was pleading her case only on the ground
that the candidate at Sr.No.1 had not submitted the required zimni orders and there
was a chance that he could be cast-out due to non-fulfillment of the eligibility in
28 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
the selection criteria. It was thus pleaded that the applicant was likely to fall
within the zone of consideration and was liable to be appointed against the
advertised post. It is thus apparent that the said appellant had not even bothered to
join the proceedings and file any application for impleadment and is now fishing
in the dark by seeking a prayer for consideration only on the strength of the fact
that the State has chosen to take over the role of the Commission which further
fortifies the objections raised by the writ petitioners regarding the maintainability
of the present appeals.
41. Resultantly, we are of the considered opinion that the appeals are not
maintainable at the instance of the appellants. Accordingly, Issue No.1 is decided
against the appellants.
Our Findings on Issue No.2
42. On the second aspect as such whether the learned Single Judge was
correct in allowing the writ petition, reliance can be rightly placed upon the
judgment in Madan Lal's case (supra) wherein, the process of selection of
Munsiffs in the State of Jammu and Kashmir was the subject matter of
consideration. While dealing with the contention No.6 which was regarding the
two years of actual practice at the Bar for the purposes of being eligible, it was
held that merely because a candidate has kept himself busy while attending Courts
regularly by being in the law library or in the bar room and to insist upon the
professional attachment to a concerned Court would amount to re-writing the
Rule. In the said case, the candidates as such had the certificates from the District
Judge as such, which were accepted as such. The argument that actual practice
would mean appearance before the Courts and conducting cases was rejected.
Para No.20 of the judgment rendered in Madan Lal's case (supra) reads thus:-
"20. It was next vehemently contended by the
petitioners that actual practice would mean that the concerned
29 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
candidates should have appeared before courts and conducted
cases during these two years. It is difficult to accept this
contention. A member of the bar can be said to be in actual
practice for 2 years and more if he is enrolled as an Advocate
by the concerned Bar Council since 2 years and more and has
attended law courts during that period. Once the Presiding
Officer of the District Court has given him such a certificate, it
cannot be said that only because as an advocate he has put in
less number of appearances in courts and has kept himself
busy while attending the courts regularly by being in the law
library or in the bar room, he is not a member of the
profession or is not in actual practice for that period. The
words 'actual practice' as employed in rule 9 indicate that the
concerned advocate must be whole time available as a
professional attached to the concerned court and must not be
pursuing any other full time avocation. To insist that the terms
'actual practice' should mean continuous appearances in the
court would amount to rewriting the rule when such is not the
requirement of the rule. There is no substance even in this
additional aspect of the matter canvassed by the learned
senior counsel for the petitioners. It must therefore be held that
respondent no. 10 & 13 were eligible for competing for the
said posts of Munsiffs."
43. Similarly, in Devinder Singh vs. State of Haryana,
(1997) 5 SLR 580, a Division Bench of this Court rejected the argument raised
whereby the eligibility as such of the respondent was sought to be questioned on
the ground that he was only on the rolls of the Bar Council and the Bar
Association and not going to the Court. The relevant portion reads thus:-
"12. Annexure R4/3 is the certificate issued by the
Secretary, District Bar Association, Rohtak. A perusal thereof
shows that the respondent No. 4 had been practising as an
Advocate at the District Courts, Rohtak from 11.11.1991 to
13.7.1995. This certificate has been counter-signed by the
District & Sessions Judge, Rohtak on 13.7.1995. If we read
30 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
Annexure R4/3 along with Annexure R4/4, there remains no
doubt that the respondent No. 4 had practised at the bar for
more than three years as on 24.7.1995. Thus, no illegality has
been committed by the respondents No. 1 and 3 in treating the
respondent No. 4 eligible for recruitment to the Haryana Civil
Service (Judicial Branch). No doubt, in All India Judges
Associations' case (supra), the Supreme Court has laid
emphasis on the first hand experience of working of the Court
system and the administration of justice begotten through
legal practice, but we do not find any rationale in the
argument of the learned counsel for the petitioner that such
experience can be gained only by arguing cases in a Court of
law. An Advocate may be actually on the rolls of the Bar
Council and the Bar Association and he may be actually
coming to the Court for a particular length of time but may
not be able to get an opportunity to argue the case. A new
entrant in the profession may join a Senior Advocate. He may
remain attached to such Advocate for sufficiently long time but
may not get opportunity to argue the case. However, only on
that count it cannot be said that the new entrant has not
practised at the bar or that he has not gained experience as an
Advocate. We, therefore, hold that for satisfying the
conditions of eligibility prescribed in the rules, it is not
necessary that an Advocate must have actually appeared and
argued the cases in the Courts for a period of three years.
44. The stand of the Commission in accepting the certificates issued by
the Bar Association, duly counter signed by the District Judge, was accepted and it
was held that if the Government was to make detailed enquiries to determine the
eligibility of three years' experience, it would be impossible to complete the
process of recruitment within a reasonable time frame.
45. The stand of the State is thus categorical in the additional affidavit
filed that the uniform procedure was applied to the selection process and
shortlisting was done. The documents were being verified on the basis of the
31 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
degree of the profession of Law, certificate of enrollment with the Bar Council,
certificate of membership in the Bar Association, duly certified by the
President/Secretary or the certificate given by the Advocate with whom the
candidate was associated as a legal practitioner and lastly, the certificate of All
India Bar Examination having successfully qualified to practice as an Advocate
which was conducted by the Bar Council of India. It was also mentioned that in
the earlier recruitment made in 2014-16, the criteria of selection had been on the
very same documents and no other document was requisitioned by the State.
46. It is in such circumstances, the State is now supporting the selected
candidates having realized its folly. Reliance can be placed upon the judgment in
Union Public Service Commission Vs. M. Sathiya Priya & others, AIR 2018 SC
2790 wherein it was held by the Apex Court that it would not be open to the
Courts to sit over the assessment made by the Selection Committee as an
Appellate Authority. The Selection Committee members have got expertise in the
matter and it is not for the Court to interfere in the such matters except where the
assessment is vitiated, biased, mala fide or arbitrary. Whether a candidate is fit
for a particular post or not had to be decided by the duly constituted expert body
and Courts have very limited scope of judicial review except on the ground of
mala-fides or serious violation of the statutory rules or mala-fides. In the said
case, the Selection Committee was constituted by the UPSC and it was held that
no grave mistake was committed and the selection had been made rationally.
Resultantly, the judgments of the Central Administrative Tribunal and the High
Court were set aside. Relevant portion of the judgment read as under:
"15. The Selection Committee consists of experts in the
field. It is presided over by the Chairman or a Member of
UPSC and is duly represented by the officers of the Central
Government and the State Government who have expertise in
the matter. In our considered opinion, when a High Level
32 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
Committee or an expert body has considered the merit of each
of the candidates, assessed the grading and considered their
cases for promotion, it is not open to CAT and the High Court
to sit over the assessment made by the Selection Committee as
an appellate authority. The question as to how the categories
are assessed in light of the relevant records and as to what
norms apply in making the assessment, is exclusively to be
determined by the Selection Committee. Since the jurisdiction
to make selection as per law is vested in the Selection
Committee and as the Selection Committee members have got
expertise in the matter, it is not open for the courts generally
to interfere in such matters except in cases where the process
of assessment is vitiated either on the ground of bias, mala
fides or arbitrariness. It is not the function of the court to hear
the matters before it treating them as appeals over the
decisions of the Selection Committee and to scrutinise the
relative merit of the candidates. The question as to whether a
candidate is fit for a particular post or not has to be decided
by the duly constituted expert body i.e. the Selection
Committee. The courts have very limited scope of judicial
review in such matters.
We are conscious of the fact that the expert body's
opinion may not deserve acceptance in all circumstances and
hence it may not be proper to say that the expert body's
opinion is not subject to judicial review in all circumstances.
In our constitutional scheme, the decision of the Selection
Committee/Board of Appointment cannot be said to be final
and absolute. Any other view will have a very dangerous
consequence and one must remind oneself of the famous words
of Lord Acton "Power tends to corrupt, and absolute power
corrupts absolutely". The aforementioned principle has to be
kept in mind while deciding such cases. However, in the matter
on hand, it is abundantly clear from the affidavit filed by the
UPSC that the Selection Committee which is nothing but an
expert body had carefully examined and scrutinised the
33 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
experience, Annual Confidential Reports and other relevant
factors which were required to be considered before selecting
the eligible candidates for the IPS. The Selection Committee
had in fact scrutinised the merits and demerits of each
candidate taking into consideration the various factors as
required, and its recommendations were sent to the UPSC. It
is the settled legal position that the Courts have to show
deference and consideration to the recommendations of an
Expert Committee consisting of members with expertise in the
field, if malice or arbitrariness in the Committee's decision is
not forthcoming. The doctrine of fairness, evolved in
administrative law, was not supposed to convert tribunals and
courts into appellate authorities over the decision of experts.
The constraints - self imposed, undoubtedly - of writ
jurisdiction still remain. Ignoring them would lead to
confusion and uncertainty. The jurisdiction may become
rudderless.
16. xxxx xxxx xxxx
This Court has repeatedly observed and concluded that
the recommendations of the Selection Committee cannot be
challenged except on the ground of mala fides or serious
violation of the statutory rules. The courts cannot sit as an
appellate authority or an umpire to examine the
recommendations of the Selection Committee like a Court of
Appeal. This discretion has been given to the Selection
Committee only, and the courts rarely sits as a Court of
Appeal to examine the selection of a candidate; nor is it the
business of the Court to examine each candidate and record
its opinion. Since the Selection Committee constituted by the
UPSC is manned by experts in the field, we have to trust their
assessment unless it is actuated with malice or bristles with
mala fides or arbitrariness."
47. In Deepak Aggarwal vs. Keshav Kaushik and others, (2013) 5 SCC
277, a three-Judge Bench while dealing with the issue of the appointment of
District Judges, relied upon the judgment in Sushma Suri and others vs.
34 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
Government of NCT of Delhi, (1999) 1 SCC 330 held that the members of the
Bar mean 'a class of persons who are actually practicing in the Courts of Law as
Advocates and Public Prosecutors and Government Counsels on the rolls of the
Bar Council would be entitled to practice under the 1961 Act" and were held to
be covered under the expression "Advocate". It was held that the said persons are
professional practioners.
48. In Bar Council of India and others vs. A.K. Balaji and others, 2018
(5) SCC 379, the Apex Court held that practice of law includes not only
appearance in Courts, but also giving opinions, drafting of instruments,
participation in conferences involving legal discussion. Resultantly, it was held
that Advocates enrolled with the Bar Council alone are entitled to practice law
except otherwise provided in any other law while dilating on the issue whether
there was any bar under the Advocates Act or the Rules for the purpose of giving
legal advice to their clients.
49. In Sanjay Dhar vs. Jammu and Kashmir Public Service
Commission, (2000) 8 SCC 182, a three-Judge Bench while examining Rule 9 of
the J & K Civil Service (Judicial) Recruitment, Rules, 1967, held that if an
Advocate is practicing exclusively in the High Court, the District Courts could not
have any material available in its record and, therefore, a certificate issued by the
Registrar, counter signed by the District Judge, would be sufficient as such to
satisfy the requirement. Resultantly, it was held that rejection as such of the said
certificate by the Commission and to hold the candidate ineligible was not correct.
50. The said judgments have, thus, been relied upon by the learned Single
Judge to grant the benefit of practice at Bar, which the candidates as such had
produced by way of relying upon the Bar Council certificates, the Bar Association
certificates which had been duly accepted by the Commission. The State as such
chose to put in its own criteria, which we feel was beyond its purview since it was
35 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
only the appointing authority and not the recruiting authority. The exclusive
jurisdiction lay with the Commission. The learned Single Judge, in such
circumstances, was justified as such in quashing the said letters and coming to the
valid conclusion as such that the Secretary could not ignore the recommendations
of the Commission by introducing additional requirement after the process had
been concluded by the Constitutional Authority. The only power as such to
examine the suitability of the candidate was with regard to the antecedents of the
medical fitness or whether there was any forgery or impersonation on account of
the selected candidates.
51. Thus, once the Punjab Prosecution Litigation (Group-B Service)
Rules, 2002 and the Punjab Prosecution Litigation (Group-B Service) Rules, 2010
provided that lawyers having 7 years of experience at the Bar and 2 years
experience and practice at the Bar were being tested on the strength of an
Enrollment Certificate as an Advocate or by the Bar Council or the Bar
Association or any other certificate, as noticed, the findings which have been
recorded do not suffer from any infirmity.
52. However, one factor we would like to keep in mind that the Learned
Single Judge was not very kind to the Law Officer (Addl.Advocate General) who
gave the opinion on the basis of which the State had asked for the zimni orders
and the Learned Single Judge had said that because of the said opinion and the
action, the selection process had been put to a stand-still. It was held that the
action of the State was deplorable and the opinion placed on record was not based
upon any law and appears to have been given at the asking. The said observations,
without having given an opportunity of hearing to the Law Officer who only gave
the opinion, whether rightly or wrongly, could not have been adversely
commented upon by the Learned Single Judge. Therefore, we are of the
considered opinion that the said portion of the judgment of the Learned Single
36 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
Judge whereby adverse comments had been made on the opinion given by the
Law Officer would be required to be deleted from the body of the judgment.
Resultantly, we direct so.
53. A perusal of the letter dated 14.03.2023 (Annexure R-3) sent by the
Commission would go on to show that the details of 10 candidates who had filed
writ petitions had also been mentioned, out of which some had been provisionally
short listed for interview and others have not even been short listed. It was
specifically mentioned that out of the 10 candidates, only one had been
provisionally short listed. All the photocopies of the certificates sent as such
regarding the caste certificates, handicap certificates, freedom fighter certificates
issued by the concerned authorities had to be checked at the own level by the
Government. Thus, the Government as such was to check the self attested
certificates regarding various categories and to ensure that the candidates, if any,
who had applied against various reserved categories, had the relevant documents
and issued by the competent authorities. The limited role as such of the State was
in pursuance of the letter which had been forwarded and it could not sit over the
recommendations as such and once the interview had been done in the case of the
DDAs and as per the merit, list had been forwarded. Similarly, for the ADAs also,
on the basis of the marks obtained in the written examination, the list had been
forwarded after duly weeding out 6 candidates who had chosen not to furnish the
necessary documents and had to be duly processed against vacancies.
54. Keeping in view the above discussion, Issue No.2 is also decided
against the appellants.
55. In such circumstances, we do not find any ground as such to entertain
the present appeals and the same stand dismissed. Applications for grant of leave
37 of 38
Neutral Citation No:=2024:PHHC:061783-DB
2024:PHHC:061783-DB
to appeal also, in such circumstances, stand dismissed.
(G.S. SANDHAWALIA)
ACTING CHIEF JUSTICE
13.05.2024 (LAPITA BANERJI)
shivani/sailesh JUDGE
Whether reasoned/speaking Yes
Whether reportable Yes
38 of 38
