Punjab-Haryana High Court
Vishwas And Others vs State Of Punjab And Another on 19 September, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:124246
CWP-12953-2020 (O&M) & connected cases 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(293) CWP-12953-2020 (O&M)
Date of Decision : September 19, 2024
Nidhi Sharma .. Petitioner
Versus
State of Punjab and others .. Respondents
(2) CWP-5096-2020 (O&M)
Ravneet Kaur and another .. Petitioners
Versus
State of Punjab and another .. Respondents
(3) CWP-8858-2020 (O&M)
Vishwas and others .. Petitioners
Versus
State of Punjab and another .. Respondents
(4) CWP-17190-2020 (O&M)
Kulwinderjit Kaur and others .. Petitioners
Versus
State of Punjab and others .. Respondents
(5) CWP-16772-2020 (O&M)
Manmohan Singh .. Petitioner
Versus
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CWP-12953-2020 (O&M) & connected cases 2
State of Punjab and others .. Respondents
(6) CWP-13361-2021 (O&M)
Sartaj Singh and another .. Petitioners
Versus
State of Punjab and another .. Respondents
(7) CWP-6290-2020 (O&M)
Pardeep Kaur .. Petitioner
Versus
State of Punjab and another .. Respondents
(8) CWP-7039-2020 (O&M)
Amrit Kaur and others .. Petitioners
Versus
State of Punjab and another .. Respondents
(9) CWP-21984-2021 (O&M)
Sonia and another .. Petitioners
Versus
State of Punjab and another .. Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Ranjit Singh Kalra, Advocate, with
Ms. Mona Yadav, Advocate and
Mr. Randeep Singh Smagh, Advocate, for the petitioner(s)
in CWP-12953-2020.
Mr. Inayat Khullar, Advocate, for the petitioners
in CWP-5096-2020 and CWP-7039-2020.
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CWP-12953-2020 (O&M) & connected cases 3
Mr. Gaurav Sharma, Advocate for the petitioner(s)
in CWP-8858-2020.
Mr. Rahul Chadha, Advocate, for
Ms. Rupali Verma, Advocate for the petitioner
in CWP-17190-2020.
Mr. H.C.Arora, Advocate, with
Ms. Sunaina, Advocate, for the petitioners
in CWP-16772-2020.
Mr. Suneet Singh Deol, Advocate, for the petitioner(s)
in CWP-13361-2021.
Mr. K.D. Sachdeva, Advocate, for the petitioner(s)
in CWP-6290-2020.
Mr. Umesh Sharma, Advocate, for the petitioner(s)
in CWP-21984-2021.
Mr. Arun Gupta, Deputy Advocate General, Punjab.
Ms. Alka Chatrath, Advocate,
Mr. Nikhil Singh, Advocate and
Mr. Ratik Kapur, Advocate, for respondents No.4, 5, 6, 9 to 13,
15 and 24 to 33 in CWP-5096-2020.
Mr. Gaurav Sharma, Advocate, for intervener
in CM-4583-CWP-2021 in CWP-6290-2020.
Mr. Amit Jhanji, Sr. Advocate, with
Ms. Eliza Gupta, Advocate for the private respondents
in CWP-5096-2020.
HARSIMRAN SINGH SETHI J. (ORAL)
CM-18740-CWP-2022 in CWP-5096-2020
Present application has been filed for impleading the applicant
Ravi Kumar son of Sawan Kumar, r/o Dhani Bisheshar Nath, Azimgarh
District Ferozepur as party in the present writ petition.
Keeping in view the averments made in the application, which
are duly supported by an affidavit, the application is allowed as applicant is
necessary party. Applicant Ravi Kumar son of Sawan Kumar, r/o Dhani
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Bisheshar Nath, Azimgarh District Ferozepur is impleaded as respondent
No.16 in the present writ petition and the amended memo parties attached
with the application is taken on record.
CM-966-CWP-2022 in CWP-5096-2020
Present application has been filed for impleading the applicants
as party respondents No. 34 to 39 in the present writ petition.
Keeping in view the averments made in the application, which
are duly supported by an affidavit, the application is allowed as applicants
are necessary parties. Applicants are impleaded as respondents No. 34 to 39
in the present writ petition and the amended memo parties attached with the
application is taken on record.
CM-4191-CWP-2020 in CWP-5096-2020
Present application has been filed for impleading the applicants
as party respondents No. 3 to 15 in the present writ petition.
Keeping in view the averments made in the application, which
are duly supported by an affidavit, the application is allowed as applicants
are necessary parties. Applicants are impleaded as respondents No. 3 to 15
in the present writ petition and the amended memo parties attached with the
application is taken on record.
CWP-12953-2020 (O&M) & connected cases
1. By this common order, 9 writ petitions, the details of which
have been given in the heading, are being disposed of as all these petitions
involve the same question of law arising out of similar facts.
In the present bunch of petitions, the challenge is to the action
of the respondent-Department by which, the total number of posts
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advertised vide Advertisement dated 31.12.2016 (Annexure P-1) are being
filled on the basis of joint merit list of male and female candidates on the
ground that the same is contrary to the Rules governing the service i.e. The
Punjab State Education Class III (School Cadre) Service Rules 1978
(hereinafter referred as '1978 Rules') as amended from time to time, as
interpreted by the judgment of the Division Bench of this Court in CWP
No.12275 of 2000 titled as Neelam Rani vs. State of Punjab and others,
decided on 08.01.2010. It has been pressed that 50% of the advertised posts
are to be filled from the joint merit list of male as well as female candidates
and the remaining 50% from the female candidates only whereas, the
respondent-State has prepared a common merit list of male and female
candidates to fill up the total number of posts advertised vide Advertisement
dated 31.12.2016 (Annexure P-1).
For the sake of convenience, the facts leading to the filing of
the present petition are being taken from CWP No.12953 of 2020 titled as
Nidhi Sharma vs. State of Punjab and others which are stated as under:
The respondent-State of Punjab issued an advertisement, copy
of which has been appended as Annexure P-1 on 31.12.2016 advertising
873 vacancies of the D.P.E. (Master). The distribution of the posts in
various categories was also mentioned in the advertisement itself. The
educational qualification required for the post was also mentioned in the
advertisement itself and the method of recruitment to the post in question
was also given.
As per the method of recruitment, the candidates were required
to appear in an aptitude test of 150 marks and thereafter in a written test in
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concerned subject of 150 marks and the candidates who secured at least
50% marks in each of the test, were to be considered as eligible and further
5% relaxation in the passing marks was given to candidates belonging to the
various reserved categories and the merit list was to be prepared after
counting the marks obtained by the candidates in both the abovementioned
tests as well as by considering the educational/professional qualification
required to be eligible against the posts for which appointment is sought
which was also mentioned in the advertisement.
As per the general conditions of the advertisement, it was
mentioned that a combined merit list will be prepared of the candidates
from which, appointment will be made to the advertised posts.
The petitioners competed for the posts in question and were declared
successful in the aforementioned tests conducted in pursuance to the
advertisement. Thereafter, a merit list was prepared by the respondents
keeping in view the provisions of the advertisement, which was a common
merit list with the posts not being bifurcated between male and female
candidates.
On the basis of joint merit list of all the candidates, the
respondents started selecting the candidates against 873 posts of DPE.
Through the present bunch of petitions, challenge is laid to the
said action of the respondents with the grievance that out of 873 posts of
DPE, which were to be filled, the same are required to be filled as per 1978
Rules, as amended from time to time and in accordance with the
interpretation given to the said 1978 Rules by this Court in Neelam Rani's
case (supra), as per which, it is contended that 873 posts are to be
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bifurcated equally between male and female candidates and against 50% of
the posts which are to be filled by male candidates from the common merit
list of male and female candidates should operate and female candidates be
also considered whereas, with regard to the remaining 50% of posts, the
same are to be filled from female candidates only and only the female
candidates from the joint merit list are to be treated eligible for the same and
no male candidates can be considered eligible for the said 50% of posts. It
is the contention of the petitioners that the respondents are violating the
1978 Rules governing the service and are also violating the judgment of the
Division Bench of this Court in Neelam Rani's case (supra).
While issuing notice of motion, the Coordinate Bench of this
Court, stayed the filling of the posts beyond 50% from the common merit
list, which interim order continues even as of today.
Upon notice of motion, the respondents have filed the reply
wherein, the respondents have stated that 1978 Rules were amended in the
year 1995 and keeping in view the amendment in the year 1995, there are no
separate posts of male and female candidates keeping in view the
amendment to Appendix A of 1978 Rules hence, once there are no separate
posts reserved for male and female candidates in the cadre of
Master/Mistress, the appointment to the advertised post of DPE are to be
made only on the basis of joint merit list, which term also exists in the
advertisement itself.
Learned counsel for the respondents submits that once there is
no quota provided for male and female candidates in 1978 Rules and after
the amendment of 1978 Rules, as amended in the year 1995 even the
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Appendix A, which initially provided separate posts for male and female
has been amended to mean that there is a joint cadre of all the posts, the
claim of the petitioner that 50% posts are to be filled from male candidates
and 50% from female candidates, is contrary to the 1978 Rules governing
the service.
With regard to the judgment of the Division Bench of this
Court in Neelam Rani's case (supra), the contention of the respondent-
State is that though, the said judgment has been upheld upto the Hon'ble
Supreme Court of India but the said judgment was given on the basis of un-
amended 1978 Rules wherein, in Appendix A separate number of posts
were reserved for male candidates as well as for female candidates, which
Appendix A of 1978 Rules has already been amended in the year 1995,
hence after the amendment in Appendix A of 1978 Rules, the judgment in
Neelam Rani's case (supra), cannot be made applicable so as to demand
50% reservation in favour of female candidates, especially when no separate
posts exist for appointment of female candidates.
Learned counsel for the respondent-State further submits that
though, the direction was given by the Coordinate Bench of this Court while
issuing notice of motion that 225 posts of the general category be kept
vacant but by the time the said order was passed, approximately 758 posts
of the total advertised post of 873 had already been filled up, however, after
the passing of the order granting interim relief no further post has been
filled up so as to await the decision in the present bunch of petitions.
Learned senior counsel for the private respondents submits that
the claim of the petitioner as raised in the present writ petitions is contrary
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to the 1978 Rules as amended in the year 1995 which govern the service as
well as to stipulations mentioned in the advertisement and in the absence of
any challenge to the rules governing the service especially amended
Appendix A or to the terms and conditions of the advertisement, raising a
claim that 50% posts are to be filled exclusively from the female candidates,
is contrary to the 1978 Rules governing the service as those existed on the
date of appointment and the writ petitions are therefore, liable to be
dismissed.
Learned senior counsel for the private respondents further
submits that the implementation of the judgment of the Division Bench of
this Court in Neelam Rani's case (supra), has to be made keeping in view
the rules governing the service especially when the judgment in Neelam
Rani's case (supra) has been given on the basis of unamended Appendix A
of 1978 Rules which already stands amended in the year 1995 and the
advertisement issued by the Department is to be given effect on the basis of
1978 Rules as well as Appendix A which existed on the day when the
advertisement was issued i.e. 31.12.2016, hence it is contended that the
argument of the learned counsel for the petitioners that without even
appreciating the 1978 Rules governing the service as well as the amended
Appendix A as it existed on the date of advertisement, the judgment in
Neelam Rani's case (supra) should be made applicable qua the present
advertisement, is liable to be rejected.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
The question which has been posed before this Court in the
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present bunch of petitions is as to whether the judgment in Neelam Rani's
case (supra) which interpreted 1978 Rules is to be made applicable qua the
Advertisement Annexure P-1 so as to fill 50% of the posts from the joint
merit list and the remaining 50% from the exclusively female candidates
from the said joint merit list.
In order to appreciate the said issue, a perusal of the statutory
rules governing the advertised posts of DPE (Master/Mistress) cadre is
necessary. It is a conceded position between the parties that the 1978 Rules
govern the service for filling up the post of DPE which is part of Cadre of
Master/Mistress. The 1978 Rules have been placed on record as Annexure
P-4. As per Rule 3 of the 1978 Rules, the service is to be of two branches
namely men branch and women branch and is to comprised of the post
shown in Appendix A to these Rules. The original Appendix A which was
attached to the 1978 Rules is at page 73 of the paper book. It is a conceded
position between the parties that the description of the post in the said
Appendix A of 1978 Rules was bifurcated between men and women and
there were a particular number of posts which were available to be filled
from men and particular number of posts which were available to be filled
from women.
Keeping in view the said Appendix A, there was no ambiguity
to operate Rule 3 of 1978 Rules and the respondent-State in past continued
to separately fill the posts prescribed for men and women as per the said
Appendix A to 1978 Rules.
The said practice of filling the posts prescribed for men in
Appendix A to 1978 Rules from only male candidates came under challenge
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in Neelam Rani's case (supra) before the Division Bench of this Hon'ble
Court. The argument raised in the said case was that even women should
also be considered for appointment qua the posts which were earmarked for
only male candidates in the original Appendix A to 1978 Rules.
Upon consideration after interpreting the said 1978 Rules and
its Appendix A, the Division Bench of this Hon'ble Court came to the
conclusion that women candidates are also to be considered as eligible to
compete for the posts which have been reserved for men in Appendix A to
1978 Rules however, with regard to the posts which were reserved for only
women candidates in the same Appendix A only women candidates had to
be exclusively considered. Direction was given that for filling up the posts
which have been reserved for men in Appendix A of 1978 Rules, the joint
merit list of men/women is to be made operational and after filling the posts
reserved for men, remaining posts will be filled exclusively from the
women candidates from the same merit list to the exclusion of the men.
After the said judgment, the respondents started implementing
the judgment in Neelam Rani's case (supra) for various categories of the
posts which were advertised to be filled up in the cadre of Master/Mistress.
The reliance in the present petitions is also on the same
judgment to contend that the posts which have been advertised vide
Annexure P-1 are to be filled up according to 1978 Rules keeping in view
the interpretation given by the Division Bench in Neelam Rani's case
(supra).
Learned counsel appearing on behalf of the petitioner argues
that once the judgment in Neelam Rani's case (supra), has already been
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upheld upto the Hon'ble Supreme Court of India, the same is to be given
effect to while making the selection to the post of DPE which is part of
Master/Mistress, which is governed by the 1978 Rules and therefore, the
number of posts of DPE which have been advertised by the respondents by
the advertisement in question, has to be bifurcated between men and
women and the selection to the posts should be made as per the direction
given in Neelam Rani's case (supra) so as to exclude the men from the
posts which should have been reserved only for women candidates.
The said argument is to be tested as per the fact and rules
governing the service which existed on the date when the advertisement was
issued.
Before juxtaposing arguments raised on behalf of both the
parties, it needs to be noticed here that the 1978 Rules were amended by the
Government vide amendment dated 08.07.1995. The Appendix A to the
1978 Rules was amended to the effect that the bifurcation which existed
between posts for men and women candidates was eliminated and after the
amendment, Appendix A only mentioned the number of posts available in
the cadre without any distinction being made for men and women. The said
amendment though was done on 08.07.1995 but was never brought to the
notice of the Division Bench either by the State or by the petitioners though,
the judgment in Neelam Rani's case (supra) was delivered on 08.01.2010.
Further, it may be noticed that even in Neelam Rani's case
(supra), the advertisement in question was issued on 18.10.1996 but it is
very unfortunate to note that neither the petitioners nor the respondent-State
brought to the notice of the Division Bench the factum of the amendment of
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1978 Rules and the amended Appendix A attached thereto in the year 1995.
It may be noticed that while delivering the judgment in Neelam Rani's case
(supra), the un-amended Appendix A of 1978 Rules has been noticed
wherein, the posts have been created separately for men and separately for
women. The State failed to perform the duties to bring to the notice of the
Court the actual facts so that the controversy could have been determined
keeping in view the 1978 Rules which were in operation at the time when
the advertisement was issued in October, 1996. The amendment dated
08.07.1995 has never been brought to the notice of any of the Court even
subsequently.
It may also be noticed that the judgment in Neelam Rani's
case (supra), has been upheld by the Hon'ble Supreme Court of India while
deciding SLP (C) No.10521-10522 of 2012 titled as Ashu Chopra and
others vs. State of Punjab and others, decided on 15.03.2023. Again, the
State did not inform the Hon'ble Supreme Court of India about the amended
1978 Rules as amended on 08.07.1995 qua amendment to Appendix A,
which fact is clear that even in the orders of the Hon'ble Supreme Court of
India, the Appendix A of 1978 Rules as it existed prior to the amendment on
08.07.1995 has been noticed to uphold the judgment in Neelam Rani's case
(supra). The State was very much present before this Court as well as
before the Hon'ble Supreme Court of India and rather than bringing the true
and correct facts before the Court, for reasons best known to the State, the
actual amendment which had already taken in place and had been notified
on 08.07.1995 was withheld. The judgment in Neelam Rani's case (supra)
is given inference to the un-amended Appendix A of 1978 Rules which
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existed prior to 08.07.1995 though, the advertisement, which was in
question, related to a period which was subsequent to 08.07.1995 i.e.
amendment to 1978 Rules.
This Court, has to keep in mind the said relevant fact, which
fact stands conceded between the parties to the present case. Hence this
Court is now required to answer the issue raised in the present bunch of
petitions by keeping the said fact in center while appreciating the
applicability of the judgment in Neelam Rani's case (supra) so as to
decide whether the same can be made applicable in the facts and
circumstances of the present case even after the amendment dated
08.07.1995 was made to 1978 Rules.
It is a settled principle of law that the selection is to be made on
the basis of rules governing the service. Even if, an advertisement specifies
any terms and conditions, which is contrary to the Rules, the said condition
is liable to be ignored for the reason that it is obligatory upon the State to
make selection in accordance with the rules governing the service. On the
date when the present advertisement was issued, the 1978 Rules governing
the service and Appendix A attached to the said Rules is as under:-
"3. The service shall have two branches namely, Men
Branch and women branch and shall comprise the posts
shown in Appendix A to these rules:
Provided that nothing in these rules shall affect the
inherent right of Government to add to produce the number of
such posts or to create new posts with different designation
and scales of pay whether permanently or temporarily.
4. (1) No person shall be appointed to the Service, unless he-
(a) a citizen of India: or
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(b) a citizen of Nepal or
(c) a subject of Bhutan or
(d) a Tibetan refugee who came over to India before the
1st January 1962, with the intention of permanently setting in
India or
(e) a person of Indian origin who has migrated from
Pakistan, Burma, Shri Lanka, East African Countries of
Kenya, Uganda, the United Republic of Tanzania (formerly
Tanganyika and Zanzibar) Zambia Malawi, Zaire, and
Ethopia, with the intention of permanently setting in India:
Provided that a candidate belonging to categories (b),
(c), (d) and (e) shall be a person in whose favor a certificate of
eligibility has been issued by the Government of India.
(2) A candidate is whose case a certificate of eligibility is
necessary may admitted to an examination or interview
conducted by the commission or Board or other recruiting
authority and he may also provisionally be appointed subject
to the necessary certificate being given to him by the
Government of India.
(3) No person shall be recruited to the Service by direct
appointment unless he produces a certificate of character from
the Principal academic officer of the University college,
school or institution last attended, if any and similar
certificates of character from two responsible persons not
being his relatives, who are well acquainted with him in
hisprivate life and are unconnected with his university,
college, school or institution."
Appendix A
Appendix-A
(See Rule 3)
Sr. No. Designation ofGrade No. of Posts
post
1 2 3 4 5 6
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1. Headmaster Rs.(i) 2000-50- 1742 1742
2400-60-2700-75-
3000-100-3500
2100-50-2400-60- Senior Scale
2700-75-3000-100- after eight
3700 years service
as Headmaster
2200-50-2400- Selection
60-2700-75- 3000-scale after
100- eighteen years
4000 service as
Headmaster
(ii) Special
pay of Rs
.100/- P.M.
Prospectively
2. Lecturer 1800-40-2000-50- 5943 5943
2400-60-2700-75-
3000-100-3200
2000-50-2400- Senior Scale
60-2700-75- after eight
3000-100- years service
3500 as Lecturer
2100-50-2400- Selection
60-2700-75- scale after
3000-100-3700 eighteen years
service as
Lecturer
3. Master/Mistress 1640-40-2000-50- 27213 27213
2400-60-2700-75-
1800-40-2000-50- Senior Scale
2400-60-2700-75- after eight
3000-100-3200 years service
2000-50-2400-60- Selection
2700-75-3000-100- scale after
3500 eighteen years
service
Education 2400-60-2700-75-
Officer 2925
5. Classical and1500-30-1560-40- 14975 14975
vernacular 2000-50-2400-60-
Teacher
1660-40-2000-50- Senior Scale 89.00%
2400-60-2700-75- after eight
2925 years service
1800-40-2000-50- Selection
2400-60-2700-75- scale after
3000-100-3200 eighteen years
service
Teacher (School2000-50-2100
side)
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1410-30-1560-40- Senior Scale
2000-50-2400-60- after eight
2460 years service
1640-40-2000-50- Selection
2400-60-2700-75- scale after
2925 eighteen years
service
7. Vocational 1800-40-2000-50- 1225 1225
Lecturer 2400-60-2700-75-
3000-100-3200
Vocational 2000-50-2400-60- Senior Scale
Master 2700-75-3000-100- after eight
3700 years service
2100-50-2400-60- Selection
2700-75-3000-100- scale after
3500 eighteen years
service
8. District Co-1640-40-2000-50- 6 6
ordinator 2400-60-2700-75-
(Vocational 2925
Education)
9. Senior Inspector 1800-40-2000-50- 1 1
2400-60-2700-75-
3000-100-3200
10. Master 1800-40-2000-50- 2 2
Craftsman 2400-60-2700-75-
Garde-I 3000-100-3200
11. Master 1800-40-2000-50- 2 2
Technician 2400-60-2700-75-
Grade-I 3000-100-3200
12. Technical 1500-30-1560-40- 8 8
Instructor 2000-50-2400-60-
13. Master 1500-30-1560-40- 5 5
Craftsman 2000-50-2400-60-
Grade-II 2640
14. Master 1500-30-1560-40- 2 2
Technician 2000-50-2400-60-
Grade-II 2640
15. Draftsman 1500-30-1560-40- 1 1
(Mechanical) 2000-50-2400-60-
16. Junior Inspector 1500-30-1560-40- 1 1
2000-50-2400-60-
17. Tailoring 1200-30-1560-40- 76 76
Teacher 2000-50-2100
1410-30-1560-40- Senior Scale
2000-50-2400-60- after eight
2500 years service
1640-40-2000-50- Selection
2400-60-2700-75- Scale after
2925 eighteen years
service
18. Work 1200-30-1560-40- 48 12 60
Experience 2000-50-2100
Teacher
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1410-30-1560-40- Senior Scale
2000-50-2400-60- after eight
2460 years service
1640-40-2000-50- Selection
2400-60-2700-75- Scale after
2925 eighteen years
service
19. Vocational 1200-30-1560-40- 600 600
Teacher 2000-50-2100
1410-30-1560-40- Senior Scale
2000-50-2400-60- after eight
2460 years service
1640-40-2000-50- Selection
2400-60-2700-75- Scale after
2925 eighteen years
service
2000-50-2100
Superintendent 2000-50-2100
1500-40-1800
Appendix A as it existed on the date of advertisement show
only permanent and temporary posts in the cadre of Master/Mistress. There
is no separate post created for men/women.
But prior to the amendment dated 08.07.1995, the Appendix A
which existed under the 1978 Rules is as under:-
Serial Designation Grade No. of posts
No. of Post
Rs.
Men Women
Total PermanenTemporar Total Permanent Temporary
t y
(i) (ii) (iii) (iv) (v) (vi)
1. Headmaster 400-30- 73 73 - - - -
(15%) 640/40-800
(15%) 640/40-800
3. Headmaster 300-25- 605 100 505 - - -
450/25-600
4. Headmistress 300-25- - - - 328 56 272
450/25-600
5. Lecturers 250-25- 917 - 917 - - -
(Men) 450-25-600
(Women) 450-25-600
7. Master or220-12- 10,542 5,592 4,950 - - -
Block 340/15-
Education 400/20-500
Officer
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8. Mistress of220-12- - - - 5425 2120 3305
Block 340/15-
Education 400/20-500
Officer
9. J.S.T Mistress 220-12- - - - 139 139 -
340/15-400
A bare perusal of the abovestated facts would show that prior to
the year 1995, in the Appendix A of 1978 Rules, there was a complete
bifurcation of the post between men and women in the cadre of
Master/Mistress. After the amendment on 08.07.1995, Appendix A was
amended and the separate bifurcation given to the posts qua men and
women stood amended and there was only one cadre of 27213 posts of
Master/Mistress to be filled up as per Rule 3 of 1978 Rules.
The judgment in Neelam Rani's case (supra) has been given
on the basis of unamended Appendix A of 1978 Rules wherein, it has been
said that when the posts have been created separately for men and women,
in respect of the posts created for men, women will be eligible and the posts
created for women, will be filled exclusively from women. The said
judgment cannot be brought into operation once, the separation of posts in
favour of men and women was taken out vide amendment dated 08.07.1995
to the said Rules. Once, no separate post for men and women exist under
1978 Rules of the amendment dated 08.07.1995, the contention that there
still will be 50% ratio for filling up the total number of posts advertised
between men and women, stands contrary to the 1978 Rules as it existed on
the date when the advertisement was issued, in pursuance to which the
appointment is being claimed by the petitioners.
Learned counsel for the petitioners submits that even if,
Appendix A has been amended and the posts have been amalgamated vide
amendment dated 08.07.1995, still Rule 3 of 1978 Rules provides for
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separate branches of cadre for men and women and therefore, the posts have
to be reserved in favour of women candidates.
After giving due consideration to the said argument, it is the
understanding of this Court that the said Rule has to be given a harmonious
interpretation for its operation within the scheme of entirety of 1978 Rules
even after the amalgamation of the posts effected vide amendment dated
08.07.1995.
A bare perusal of Rule 3 of the 1978 Rules would show that it
only prescribes two branches namely men branch and women branch.
There is no percentage or quota fixed qua the men branch and women
branch. In the absence of any such stipulation, bifurcating the posts
between men branch and women branch by specific boundaries of 50% each
in order to reserve specific number of posts will be outside the scope of the
amended 1978 Rules and therefore, the contention to reserve 50% of the
posts especially for women on the strength of Rule 3 of 1978 Rules cannot
be accepted. The argument of the petitioners that 50% of the posts be
reserved for women will amount to implicitly reading 50% in Rule 3 of the
said service Rules which is beyond the scope of interpretation of the said
Rules.
Further, even after the creation of the joint cadre by amendment
dated 08.07.1995 to the 1978 Service Rules, there can be men branch and
women branch. The State can place the selected candidates separately in
two branches i.e. of men and women. Any women selected against the posts
advertised can be treated as part of the women branch and any men selected,
can be treated as part of the men branch. Therefore, the Rule 3 has to be
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interpreted in such a manner so that without reading into the same
something which is not borne out of its plain reading, it can be interpreted
harmoniously with the description of posts as mentioned in Appendix A of
1978 Rules as amended by the amendment dated 08.07.1995.
The judgment being relied upon by the learned counsel for the
petitioners in Jagdish Prasad vs. State of Rajasthan (SC) 2011 (7) SCC
789, Aphall Pharmaceuticals Ltd. M/s vs. State of Maharashtra (SC) 1989
(4) SCC 378, M/s Hospira Health Care India Pvt. Ltd vs. Development
Commissioner, (Madras) 2016 (4) MLJ 179 as well as M/s Siddharth
Enterprises Through Partner Mahesh Liladhar Tibdewal vs. Nodal
Officer, Gujarat 2019 (103) UPTC 1045 cannot be made effective in the
facts and circumstances of the present case.
In the present case, even after amendment of Appendix A of
1978 Rules, the Rule 3 of 1978 Rules has not become redundant. Once the
Rule 3 of 1978 Rules can still be made operational within the scheme of
1978 Rules, the said judgments cannot be made applicable.
Once, there is no provision of 50% bifurcation of posts between
men and women in the Appendix A of 1978 Rules after amendment dated
08.07.1995 and the bifurcation was being done earlier on keeping in view
separate allocation of the posts in favour of men and women in the
unamended Appendix A of 1978 Rules and grievance being raised to the
present bunch of petitions does not pertain to appointments done prior to the
amendment dated 08.07.1995, it cannot be said that appointments are being
made by the respondent-State in contravention of 1978 Rules. Hence, the
judgment of the Division Bench in Neelam Rani's case (supra), which
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relied upon the unamended Appendix A of 1978 Rules is perfectly valid and
legal qua the unamended Appendix A but the same cannot be made
applicable upon the amended Appendix A which existed on the date of
advertisement in question.
Learned counsel appearing on behalf of the petitioners submits
that even after the judgment in Neelam Rani's case (supra) despite the fact
that there was an amendment on 08.07.1995, whenever there was an
advertisement, the respondent-State has been reserving 50% of the posts for
men and women separately. Although, the said argument has been objected
to by the respondent-State to be incorrect however, even if it is assumed for
the sake of arguments that the State has been doing the same, still no relief
can be given to the petitioners for the reason that any action of the State
contrary to the 1978 Rules, will not give a right to the petitioners to claim
that violation of the 1978 Rules should continue to operate under the pretext
of "practice". The State is under obligation to comply with the Rules rather
than "practice" which is contrary to the 1978 Rules. Further, Court cannot
validate any illegality or any practice being undertaken by the State, which
is not supported by the Rules governing the posts in question hence, even if
at any given point of time, the State has issued an advertisement, which is
contrary to the 1978 Rules, the 1978 Rules will prevail. In order to support
the said findings, reliance can be placed upon the judgment of the Hon'ble
Supreme Court of India in Civil Appeal No.152 of 2022 titled as The
Employees' State Insurance Corporation vs. Union of India and others,
decided on 20.01.2022 wherein, the advertisement was challenged
subsequently on the ground that the same is not conformity with the Rules
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and the Hon'ble Supreme Court of India held that an error, if any, in the
advertisement cannot override the Rules and create a right in favour of a
candidate if otherwise not eligible according to the Rules.
It may be noticed here that the Hon'ble Supreme Court of India
in Civil Appeal Nos.4578 to 4580 of 2022 titled as Krishna Rai (dead)
through LRs and others vs. Banaras Hindu University through Registrar
and others, decided on 16.06.2022, again held that the selection process in
case held in violation of service rules will be a nullity.
Therefore, the argument that as the State even after Neelam
Rani's case (supra) despite amendment dated 08.07.1995 to 1978 Rules
was following the practice of bifurcating the posts between men and women
for the purpose of appointment and because of the said practice, shall be
made bound to continue doing the same qua appointments in pursuance to
the present advertisement also, cannot be accepted.
Further, it is a settled principle of law that the advertisement is
sacrosanct in case the same is in accordance with the rules governing the
service and the selection is to be made on the basis of the advertisement/
Rules governing the service.
Learned counsel for the petitioners has not been able to rebut
the fact that in the advertisement issued relating to the selected/appointment
to 873 posts of DPE, it has been stated that the selection will be made on the
basis of the common merit list prepared of the candidates. The relevant
clause VIII/IX of the Advertisement of the General conditions finds
mentioned at page 23 of the paper book, which is as under:-
"Combined merit list of male and female candidates will be prepared"
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Once the same is clearly stated in the advertisement, which is in
consonance with 1978 Rules as amended on 08.07.1995, the prayer of the
petitioners that the judgment in Neelam Rani's case (supra) should be
made applicable irrespective of the amendment done to Appendix A of 1978
Rules cannot be accepted.
Learned counsel for the petitioners lastly submitted that the
petitioners have become over aged as on date and therefore, in the event the
present petitions do not find favour with this Hon'ble Court, the petitioners
be granted age relaxation in order to appear in future opportunities for
appointment.
This Court does not have any power to grant age relaxation in
the facts and circumstances of the present case and the same is within the
domain of the executive. Though nothing shall prevent the petitioners who
have become ineligible to apply for future appointment opportunities due to
age from availing appropriate remedy of approaching the Government for
the grant of age relaxation which plea if raised shall be decided by the
State in accordance with law by passing an appropriate speaking order.
At this stage, learned senior counsel for the private respondents
submits that though the select list was already out, however, due to an
interim order passed by this Court, certain advertised posts advertised qua
which, the private respondents have valid claim to be appointed, could not
be filled up. It is further submitted that the said interim order has continued
for the last four years. It is prayed that as the present writ petitions are
being decided, direction be given to the respondents to consider filling up
the remaining advertised posts from the select list already issued and by
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giving the candidates deemed date of appointment i.e. from the date when
the other candidates of the same selection were appointed.
Learned senior counsel for the private respondents submits that
the private respondents undertake not to claim the salary for the
retrospective appointment but all the other benefits of retrospective
appointment be extended to them and their pay should be fixed by giving
deemed date of appointment with actual fixation of salary from the date
other candidates of the same selection were granted appointment along with
seniority on the basis of the merit which they have obtained in their
selection process.
The said argument needs to be accepted as, the delay in
appointment of the candidates is due to an interim order passed by this
Court. The delay is not on account of any act done on the part of the private
respondents hence, the remaining posts out of the advertised be filled up on
the basis of combined merit list and the candidates who are now being
appointed, be given deemed date of appointment from the date when, the
other candidates of the same selection were appointed.
It may be noticed that in case any of the candidate who stands
to get appointed to the remaining advertised posts, which remained un-filled
until now, stands higher in merit in comparison to any other candidate who
has already been granted appointment in pursuance to the posts advertised
vide Advertisement dated 31.12.2016 (Annexure P-1), the deemed date of
appointment of such candidates who is now to be given appointment to the
un-filled advertised posts shall not be beyond the date such already
appointed candidate who stood lower in merit than him/her was given
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appointment with the only condition that all the benefits of deemed date of
appointment will be extended to the newly appointed candidate except
arrears of salary.
At the cost of repetition, it may be noticed that in case any
candidate who is lower in merit, has already been appointed, then such
candidate who will be given appointment after the present order, will be
given deemed date of appointment from the date when a candidate lower in
merit was granted. Qua the other candidates who will be given appointment
under this order, they will be appointed from the date last candidate
appointed prior to the passing of the interim order due to which selected
candidate could be appointed.
Let the posts in accordance with law/directions as detailed in
this judgment be filled up within a period of eight weeks of the receipt of
certified copy of this order.
The present writ petitions are dismissed in above terms.
Civil miscellaneous application pending if any, also stands
disposed of.
A photocopy of this order be placed on the file of other
connected case.
September 19, 2024 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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