Punjab-Haryana High Court
Rajesh Kumar vs State Of Punjab on 17 September, 2024
Neutral Citation No:=2024:PHHC:122802
1
CWP-1526 of 2000 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-1526 of 2000 (O&M)
Reserved on
on: 04.09.2024
Pronounced on: 17.09.2024
Dial Singh and another
......Petitioners
Versus
State of Punjab and others
......Respondents
CWP-4742
4742 of 2001 (O&M)
Dharam Pal and others
......Petitioners
Versus
State of Punjab and others
......Respondents
CWP-3506
3506 of 1999
Ms. Jaswinder Kaur
......Petitioner
Versus
State of Punjab and others
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: - Mr. Sunil Chadha, Senior Advocate, with
Ms. Devyani Sharma, Advocate, and
Ms. Taanvi Dhull, Advocate,
for the petitioner(s) in CWP-1526
1526 of 2000 and
CWP-4742 of 2001.
Mr. Surya Kumar, AAG, Punjab.
Mr. P.S. Bajwa, Advocate,
for the respondent-Bank.
Mr. B.S. Patwalia, Advocate, and
Mr. Abhishek Masih, Advocate,
for respondent No.102 in CWP
CWP-4742 of 2001.
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Neutral Citation No:=2024:PHHC:122802
2
CWP-1526 of 2000 (O&M)
NAMIT KUMAR, J.
1. By this common order, aforementioned three writ petitions
are being disposed of as common questions of llaw and facts are
involved therein. For the sake of brevity, detailed facts are being taken
from CWP--1526 of 2000 titled 'Dial Singh and another v. State of
Punjab and others'.
others'
2. The instant writ petition has been filed by the petitioners
under Articles 226/227 of the Constitution of India for seeking a writ of
certiorari quashing the selection to the posts of Peons made by
respondent No.2-Punjab
No.2 Punjab State Cooperative Agriculture Development
Bank Ltd., Chandigarh (hereinafter referred to as 'the Bank') in
September,
tember, 1998,
1998 and for issuance of direction
directions to respondents No.1
and 2 to consider the case of the petitioners for appointment to the posts
of Peons.
3. Brief facts, as have been pleaded in the present petition,
are that respondent No.2-Bank
No.2 Bank issued advert
advertisement in the Punjabi
Tribune dated 28.08.1994 for filling up, besides other posts, 26 posts of
Peons, which were subsequently revised from time to time and last
advertisement was issued in Indian Express dated 08.04.1998 by which
126 posts of Peons were advertised. Out of total 126 posts, 76 were for
general category; 42 for Scheduled Castes and 8 for Backward Classes.
The essential qualification as advertised was that the candidate should
be able to read and write and the minimum and maximum age limit
prescribed was 18 to 45 years, respectively as on 30.04.1998 and the
reservation shall be as per the Government instructions/rules. It may be
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noticed that the name of petitioner No.1-Rajesh
No.1 Rajesh Kumar, was ordered to
be deleted from the array of parties vide order dated 20.11.2014 passed
by this Court in
i CM No.13905-CWP
CWP of 2014 moved by him, as he has
been offered appointment to the post of Sweeper on compassionate
etitioner No.2 has passed 8th Class
ground in place of his mother. Petitioner
from Government Inter College, Sirai, Tehri Garhwal, and thereafter
passed
ed matriculation examination from Punjab School Education
Board, Mohali, in the year 1987 and petitioner No.3 is a graduate who
acquired the said degree from Kurukshetra University in the year 1985
and also belongs
belong to physically handicapped category as he suffered
from permanent disability of 25%. The petitioners being fully eligible
applied for the post of Peon and were called for interview by the
respondent--Bank.
Bank. They were interviewed by the selection committee
of the Bank in the months of May/June/Augu
May/June/August, 1998 and also
produced the original certificates.
certificates Thereafter
hereafter, they came to know that
respondents had issued appointment letters to some candidates who
were less qualified than the petitioners. The select list was neither
displayed on the notice board nor published in the leading newspapers,
therefore, the petitioners submitted representations dated 09.07.1999
and 10.07.1999,
10.07.1999 followed by legal notices dated 09.08.1999 and
10.08.1999.. In reply to the legal notices, respondent No.2
No.2, vide letters
dated 14.09.1999
4.09.1999 and 15.09.1999 informed that the selected candidates
were appointed about an year ago and they have joined their services in
the Bank and names of the petitioners did not appear in the select list.
It has also been alleged that although only 126 posts of Peons were
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advertised,, however, 200 candidates had been selected and some of the
selected candidates do not possess the prescribed educational
qualification and unfair
unfair means have been adopted in the selection of
candidates by the selection committee of the Bank and a news
news-item in
this regard appeared in the Punjabi Tribune dated 06.10.1998. The
petitioners had earlier filed CWP No.14798 of 1999
1999, challenging the
selection
ion made
m by the respondent-Bank
Bank to the posts of Peons, which
was disposed of by a Division Bench of this Court
Court, vide order dated
15.10.1999,, with a direction to the respondent
respondent-Bank to supply a list of
selected candidates to the petitioners and in complianc
compliance thereto,
petitioners were supplied list of selected candidates for the posts of
Peons vide letter dated 01.12.1999.
01.12.1999. The selection of respondents No.3
to 126 has been challenged inter alia on the grounds that merit list of
the selected candidates was not displayed on the notice board nor the
same was published in the newspapers. More than 20% of the total
marks could not be allotted for interview as per the verdict
verdicts of the
Hon'ble Supreme Court. The petitioners being matriculate/graduate
were at a better
bette footing, as the prescribed qualification of being able to
read and write was advertised. The reservation policy of the State
Government has not been followed while selecting/appointing the
candidates and the criteria adopted by the selection committee hhas not
been disclosed.
4. CWP No.4742 of 2001 has been filed by three petitioners
impugning the selection of respondents No.3 to 127 by stating that
petitioners No.1 and 2 belong to general category and petitioner No.3
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belongs to Scheduled Castes category.
category. Petitioner No.1 passed
matriculation from Himachal Pradesh Board of School Education in the
year 1984 and likewise he also passed +2 from Punjab School
Education Board in March, 1995. The selection of the private
respondents has been challenged on simi
similar grounds as in CWP
No.1526 of 2000.
5. CWP No.3506
3506 of 1999 has been filed by the sole
petitioner impugning the selection of respondents No.3 to 9, who are
women candidates and have been selected as Peons in respondent No.2
No.2-
Bank. It has been averred that
that the petitioner has passed Higher
Secondary Part-I
Part I examination held in the month of March, 19
1977 in
second division and thereafter has passed B.A. examination from
Punjab University in the year 1981 and belongs to general category.
The selection has been challenged mainly on the ground that the
petitioner is graduate and whereas the selected candidates, especially
belonging to general category are either middle or matriculate and as
per the instructions of the State Government dated 30.12.1996
(Annexure P-12),
P , 30% posts of Peons were to be filled from women
candidates and whereas Bank has violated the said instructions as the
required number of posts has not been filled from the women
candidates and only seven women candidates have been selected and
appointed
ted as Peons.
6. Separate written statements have been filed in all the writ
petitions. In the written statement filed in CWP
CWP-1526 of 2000, it has
been stated that the petitioners participated in the process of selection
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for appointment as Peons in pursuance
pursuance to the advertisement dated
08.04.1998 and they remained unsuccessful in the selection process,
therefore, they have no locus standi to assail the selection process and
are stopped by their own act and conduct and acquiescence from
assailing the same. It has further been stated that adequate quota in
respect of reserved posts had been given. As per advertisement, 126
posts of Peons were advertised. Out of these, 76 posts were meant for
general category; 42 for Scheduled Castes and 08 for Backward Cla
Classes
category and in this manner due representation to the posts of
Scheduled Castes and Backward Classes category has been given. In
so far as physically handicapped persons are concerned, three persons
have been appointed from amongst the physically han
handicapped persons.
It has also been stated that the vacancies which occur
occurred after the
issuance of advertisement dated 08.04.1998, have also been filled up
and in this way total 167 vacancies have been filled
filled, out of which 87
posts have been filled up from general category and the representation
given to the reserved categories is as follows: -
Scheduled Castes = 56
Scheduled Tribes = 1
Backward Classes = 19
O.B.C. = 1
7. Two persons against the posts of physically handicapp
handicapped
quota have also been appointed in terms of subsequent advertisement
dated 14.08.2000.
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8. In para 9 of the written statement
statement, it has been categorically
stated that the list of selected candidates was duly displayed on the
notice board of the Bank and the
he selection was made on merits. Names
of the petitioners did not figure in the select list. After the issuance of
advertisement dated 08.04.1998, 41 more posts became vacant in the
Bank. There was a clause in the advertisement that the number of
vacancies
ies was liable to variation and in these circumstances, total 167
candidates were selected and appointed. The following averments have
been made in the written statement with regard to the excess
appointments made beyond the advertised posts: -
"14.......In
In fact, 167 candidates have been selected and
appointed against vacancies, which were available with
the Bank. The advertisement for 126 posts was issued on
8.4.1998. The selection process was carried out during the
months of June/July and August 1998. Th
The appointments
after selection were made in September 1998. After the
issuance of Advertisement on 8.4.1998, 41 posts more
became vacant in the answering respondent Bank. It is
submitted that the advertisement Annexure P.4 indicated
only a tentative list. Besides, the advertisement contained
a rider that the number of vacancies was liable to
variation. The said rider facilitates filling up of vacancies
by direct recruitment in good time and reduces the scope
for adhoc appointments pending regular recruitmen
recruitment. Any
appointments in excess of the number of vacancies
advertised cannot be said to be arbitrary. It is submitted in
the very to nature off functioning of the Bank, it is very
difficult for it to assess the exact number of anticipated
vacancies before issuing
uing an Advertisement and inviting
applications from eligible candidates. Therefore, the
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Advertisement issued by the answering respondent Bank in
effect indicated only a tentative number of vacancies
which were with the rider that the number of vacancies
was
as liable to variation. Therefore, the increase in
vacancies is absolutely in consonance with the rider of
variation in the vacancies. It is submitted that unlike
promotions which can be made at a short duration of
convening a meeting of the in
in-house Departmental
Promotion Committee for considering the cases of in
in-
service candidates, direct recruitment from the open
market through Advertisement takes a long time. In the
present case, the process of selection of Peons involved
the ascertaining as to whether the candidate could read
and write followed by viva voce by the Departmental
Selection Committee. In case the selection process is
delayed, then against the vacant posts, adhoc
appointments are made subject to replacement by direct
recruits as and when the recruitments take place in
accordance with the rules. The Hon'ble Courts have
condemned adhoc appointments. If the adhoc appointees
last long, the issue of regularisation comes up leading to
litigation. Therefore, it is in public interest that when
vacancies
ancies arise, the candidates who have undergone the
selection process and are eligible and on merit are
appointed against those vacant posts. As such, no fault can
be found with the making of selections beyond advertised
posts when vacancies became availab
available subsequent to the
Advertisement and the Advertisement itself provided a
rider for variation in the vacancies.
vacancies."
9. With regard to the criteria, which has been followed by the
selection committee, it has been averred as under: -
"16. That in reply to paraa No. 16, it is submitted that as
per Advertisement, it is required that a candidate seeking
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appointment to the post of Peon should be able to read
and write. It is, however, submitted that a person
possessing higher academic qualifications like Graduation
etc. in the very nature of work is normally not fit or
suitable to be appointed a Peon. A due criteria was drawn
up and adopted for selecting the candidates for the post of
Peon. The answering respondent Bank formulated a
criteria for making selections. T
The requirement as per the
criteria was published in the daily Newspaper 'Ajit
'Ajit' dated
21.5.1998. The said advertisement clearly provided that
the Bank has prepared a criteria for filling up the posts of
Peons and that marks have been kept for Turnout & Dres
Dress,
Personality Behaviour & Manner's, General Aptitude,
Interview, Rural Area, Educational Qualifications Eighth
& Above, Experience and Reading & Writing
Writing. Copy of the
advertisement
ent published in the Newspaper ''Ajit' dated
21.5.1998 is attached as Annexure R.2/2.
Besides, the members of the SSelection Committees
were asked to assess the candidates on the basis of the
said criteria. A proforma for this purpose was given to the
members for assessing each candidate in a uniform
manner. The marks provided for the above said
considerations as indicated in the Advertisement Annexure
R.2/2 were to be assigned by the members of the Selection
Committees on the basis of the assessment. The proforma
given to the members of the Selection Committees iis
attached as Annexure R.2/3.
It is submitted that in the very nature of the
selection process, the criteria is not liable to be disclosed
and is to be kept secret. Therefore, the selections were
made on the basis of a uniform fixed criteria in a fair and
impartial manner without any favouritism or any kind of
influence. The petitioners themselves participated in the
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selection process fully aware of the criteria as the same
was duly published in terms of the advertisement Annexure
R.2/2."
10. Since selection/appointments
on/appointments relate to the year 1998,
therefore, this Court had sought present status of the private
respondents from the Bank vide order dated 12.07.2024
12.07.2024. In pursuance
thereto, an affidavit of Sh. Preet Mohinder Singh, General Manager
(ADMIN) on behalf of respondent No.2-Bank
Bank has been filed, wherein it
has been stated that out of selected/appointed candidates, 48 persons
have either retired from service or have been dismissed or have passed
away during the pendency of the present petition and the persons who
are in service have also completed 26 years of service. The persons
who have retired from service were further promoted from the post of
Peon to various posts upto the post of Assistant Manager.
11. During the course of hearing, a preliminary objection has
been raised by the learned counsel for the respondents that the present
writ petition is not maintainable against the respondent
respondent-Bank as it is not
a State within the meaning of Article 12 of the Constitution of India.
They have placed reliance
reliance upon the judgment of the Hon'ble Supreme
Court in S.S. Rana v. Registrar, Co-operative
Co operative Societies and another,
2006(2) S.C.T. 570 and order dated 31.05.2016 passed by a Co-
ordinate Bench of this Court in CWP No.352 of 2015 - Sham Lal v.
The Punjab State Cooperative Bank Ltd. and others and other
connected petitions, wherein while relying upon the judgment of the
Hon'ble Supreme Court in S.S. Rana's case (supra)
(supra), it has been held
that the writ petition against the bank is not maintainable. To
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controvert the said contention of the learned counsel for the
respondents, learned Senior counsel for the petitioners has relied upon
the judgment of a Co-ordinate
Co Bench of this Court in Krishan Kant v.
Punjab State Cooperative Agricultural Development Bank Limited
and
nd others, 2023(2) PLR 178.
12. I have heard learned counsel for the parties and perused
the record.
13. Since the issue about the constitution of respondent
respondent-Bank
and the control of the State Government has
has neither been addressed nor
any material facts/documents have been placed on record by either of
the parties, therefore, the question with regard to maintainability of the
writ petitions is not being answered and is left open to be decided in an
appropriate case. However, since a long period of 26 years has elapsed
from the date of the selection which was made in the month of
September, 1998 and out of 167 candidates, 48 persons have either
retired from service on attaining the age of superannuation after being
promoted upto the post of Assistant Manager and some of them have
either been dismissed from service or died and some of the persons
who are still in service have further been promoted to the higher posts
of Daftri/Clerk-cum-Data
Daftri/Clerk Data Entry Operator/Field Officer/Assistant
Manager, therefore,
herefore, it would not be equitable to throw them out of
service at this point of time.
14. The
he Hon'ble Supreme Court in case H.C. Puttaswamy and
others v. the Hon'ble Chief Justice of Karnataka High Court,
Banglore and others, 1991 (1) SCT 116,
116, has observed as under:-
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xxx xxx xxx xxx
" 13. There is good sense in the plea put forward for the
appellants. The human problem stands at the outset in
these cases and it is that problem that motivated us in
allowing the review petitions. It may be recal
recalled that the
appellants are in service for the past 10 years. They are
either graduates or double graduates or post graduates as
against the minimum qualification of S.S.L.C. required for
Second Division Clerks in which cadre they were
originally recruited.. Some of them seem to have earned
higher qualification by hard work during their service.
Some of them in the normal course have been promoted to
higher cadre. They are now overaged for entry into any
other service. It seems that most of them cannot get tthe
benefit of age relaxation under Rule 6 of the Karnataka
Civil Services (General Recruitment) Rules, 1977. One
could only imagine their untold miseries and of their
family if they are left at the midstream. Indeed, it would be
an act of cruelty at this stage
tage to ask them to appear for
written test and viva voce to be conducted by the Public
Service Commission for fresh selection (See : Lila dhar v.
State of Rajasthan, 1981(1) SCR 320 at 326
326.) "
xxx xxx xxx xxx"
15. To the same effect is the judgement
udgement dated rendered by the
Division Bench of this Court in Shanti
ti Devi v. State of Haryana 1999
(2) S.C.T. 575 and judgement
dgement passed by Single Bench of this Court in
Ranbir Singh v. The Haryana State Co--operative Apex Bank Ltd.,
and others,, 2011 (16) SCT 453.
16. In view of the settled proposition of law as referred above,
when the petitioners themselves were found ineligible to be considered
in the zone of selection, therefore, they cannot challenge the
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appointment of other selected candidates, particu
particularly when there is no
allegation of any fraud or misrepresentation on the part of such
innocent appointed person, so their appointment should not ordinarily
be interfered with and they cannot be subjected to ouster from service
without any justifiable reason,
reason, which directly impinge economic
security of such appointed persons as well as their dependants,
therefore, there is no ground, evidence or material on record to
substantiate the claim of the petitioners challenging the correctness of
selection list(s) in question, who have completed more than 226 years of
service and are either at the fag end of superannuation and the
circumstances of this peculiar case justify an humanitarian approach
towards the appointed persons, therefore, finding no merit, the peti
petitions
are hereby dismissed with no order as to costs.
17. Pending application(s), if any, also stand disposed of.
(NAMIT KUMAR)
17.09.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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