IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 1628 of 2009 (O&M) & connected petitions Date of Decision: November 2, 2010 Rahul Sharma …Petitioner Versus State of Punjab and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Gurminder Singh, Advocate, Mr. Kanwaljit Singh, Senior Advocate, with Mr. Manpreet Singh, Advocate, Mr. Maninder Singh, Advocate, Mr. Girish Agnihotri, Senior Advocate, with Mr. Vijay Pal Singh, Advocate, Mr. R.D. Bawa, Advocate, Mr. S.K. Sharma, Advocate, Mr. Samuel Gill, Advocate, Mr. Kulbir Sekhon, Advocate, Mr. Arvind Seth, Advocate, Mr. R.K. Sharma, Advocate, Mr. Gurcharan Singh, Advocate, Mr. Rajiv Atma Ram, Senior Advocate, with Mr. Vibhor Kalia, Advocate, Mr. Vijay K. Jindal, Advocate, Mr. B.S. Rana, Advocate, Mr. Sandeep K. Sharma, Advocate, Mr. Sumeet Mahajan, Senior Advocate, with Mr. Vaibhav Sehgal, Advocate, Mr. R.K. Malik, Senior Advocate, with Mr. Ashish Pannu, Advocate, Mr. Suvir Sehgal, Addl. AG, Punjab. 1. To be referred to the Reporters or not? C.W.P. No. 1628 of 2009 (O&M) & connected petitions 2. Whether the judgment should be reported in the Digest? 2 C.W.P. No. 1628 of 2009 (O&M) & connected petitions M.M. KUMAR, J. 1. This order shall dispose of a bunch of 34 petitions*, which have been directed against the action of the respondent State of Punjab in respect of the recommendations for nomination to the Punjab Civil Services (Executive Branch) [for brevity, ‘PCS(EB)’] under the Punjab Civil Services (Executive Branch) (Class-I) Rules, 1976 (for brevity, ‘the Rules’). A direction has been sought for directing the respondents to make recommendations for nominations by following justifiable and rational criteria of seniority-cum-merit for adjudging the suitability of eligible candidates. Another common prayer made in these petitions is that any recommendation process for nomination made by the State Government against 31 vacant posts of PCS (EB) from Registers A-I, A-II, A-III and Register-‘C’ to the Punjab Public Service Commission (for brevity, ‘the Commission’), inter alia, in pursuance to Circular dated 4.11.2008 be set aside. Challenge has also been made to various instructions and criteria envisaged by Circular dated 4.11.2008 and instructions dated 16.6.1999. The petitioners have also challenged the constitutional validity of Rules 9, 10, 11 and 15 of the Rules by urging that the aforesaid Rules are ultra vires Articles 14 and 16(1) of the Constitution. 2. Some detailed orders were passed by this Court during various hearings. Order dated 31.3.2009, passed in CWP No. 1628 of 2009, has noted the contention of the petitioners that nominations have been made on the basis of political connection and other 3 C.W.P. No. 1628 of 2009 (O&M) & connected petitions extraneous considerations. They argued that most of the candidates so nominated were ineligible even according to the guidelines issued by the State Government from time to time. The Division Bench has further recorded in its order that during the hearing this Court gathered the impression that there was no transparent, relatable to an objective and rational criteria for making the nominations in question and no such criteria was pointed out to the Bench. Accordingly, the learned Additional Advocate General had stated before the Division Bench that the Commission would not proceed with the selection process on the basis of nominations already made and stated that the State Government would undertake a review of the process of nomination to ensure that fundamental rights guaranteed to the eligible candidates in terms of Articles 14 and 16 of the Constitution were not violated. Accordingly, a direction was issued to the State Government and the Commission not to proceed with the process of selection any further with regard to nominations made for Registers A-I, A-II, A-III and Register-‘C’ and the Bench had granted liberty to the State Government to review the entire process for making nominations and the process of evaluation of the merit of the eligible candidates by introducing a transparent, objective and rational criteria. The State Government was also granted liberty to place the result of any such review before the Court and to seek direction in the matter. 3. Subsequently the matters were listed for hearing a number of times. On 2.7.2009, the Additional Secretary to 4 C.W.P. No. 1628 of 2009 (O&M) & connected petitions Government of Punjab, Department of Personnel filed an affidavit stating that on 28.4.2009, the Government constituted a Committee under the Chairmanship of the Chief Secretary to Government of Punjab, comprising of Financial Commissioner, Revenue, Punjab as well as Principal Secretary to Chief Minister, Punjab, as Members and Secretary to Government of Punjab, Department of Personnel as the Member Secretary to recommend the criteria to be adopted while making nominations to the PCS (EB) against Registers A-I, A-II, A- III and Register-‘C’. On the basis of the recommendations made by the said Committee, the State Government decided to adopt the new criteria in place of the old criteria, which was adopted on 30.6.2009. The State Government also decided to cancel the pending process of nominations made on the basis of the earlier criteria. The new criteria has also been placed on record along with the affidavit dated 2.7.2009. 4. The petitioners have raised numerous objections to the new criteria and sought permission to amend the petition enabling them to challenge the new criteria, which was granted on 30.11.2009. After filing of the amended petition, the respondents contested the petitions. 5. During the pendency of these petition, the respondent State of Punjab has now filed Civil Misc. No. 15424 of 2010 in CWP No. 1628 of 2009, seeking modification of order dated 31.3.2009 passed by the Division Bench. In para 7 of the application it has been stated that on 11.8.2010 a meeting of the State Cabinet was held and it was decided to include the post of District Revenue Officer (DRO) 5 C.W.P. No. 1628 of 2009 (O&M) & connected petitions in Register A-I. The aforesaid Register A-I is maintained by the Chief Secretary to the Government of Punjab under Rule 8 of the Rules. In view of the above development, amendments are required to be made in various provisions of the Rules. 6. Learned State counsel has apprised the Court that the State Government has not taken any further step in the matter and the new criteria is still required to be circulated and also needs some modifications keeping in view the amendments to be carried out in the Rules. 7. Having heard learned counsel for the parties at length we are of the considered view that at this stage it may not be possible for us to adjudicate the issue as the criteria has to be finalised first. Before proceeding further we wish to make it clear that the order passed by Division Bench of this Court, dated 31.3.2009, has been misunderstood by the respondent State. There is no direction by the Court that the criteria finalised by the Committee/respondent State could be followed only after the approval is accorded by this Court. No such conclusion can be derived from the order dated 31.3.2009 and, therefore, C.M. No. 15424 of 2010 in CWP No. 1628 of 2009, seeking clarification of the order dated 31.3.2009, does not require any adjudication in view of the aforesaid observations. It is needless to add that amendment of the criteria or the Rules is an executive/legislative function which cannot be subject matter of approval by the Courts. The principle of pre-validation available in other countries could not be imported to this country as there is no such provision in the Constitution nor there is any such precedent. 6 C.W.P. No. 1628 of 2009 (O&M) & connected petitions 8. In light of the above, it is evident that a new criteria is to be finalised and the process of nomination has already been scrapped by the respondent-State. Therefore, at this stage we deem it appropriate to dispose of these petitions with the direction to the respondent State to finalise the criteria with regard to the nominations and process of evaluation of the merit of the eligible candidates for appointment as PCS (EB) as per the new criteria. Any objection raised by the petitioners or any other organization may have to be filed before the State Government or the Committee. The Committee shall finalise the criteria at the earliest preferably within a period of three months from the date of receipt of a copy of this order. It is needless to add that any criteria so finalised and followed by the respondents would remain open to challenge and the disposal of these petitions would not pre-empt the rights of the petitioners to challenge any such criteria and the recommendations made on the aforesaid basis on any available grounds. 9. The writ petitions stands disposed of in the above terms. A photocopy of this order be placed on the files of connected cases. (M.M. KUMAR) JUDGE (RITU BAHRI) November 2, 2010 JUDGE Pkapoor 7 C.W.P. No. 1628 of 2009 (O&M) & connected petitions SR. NO. CWP NO. PARTIES NAME 1. 21511 of 2008 SUKHBIR SINGH BRAR AND ANOTHER VERSUS STATE OF PUNJAB AND OTHERS 2. 21662 of 2008 ANIL ROHELA VERSUS STATE OF PUNJAB AND OTHERS 3. 21665 of 2008 KARAMJIT SINGH VERSUS STATE OF PUNJAB AND OTHERS 4. 93 of 2009 RAJIV KUMAR VERMA VERSUS STATE OF PUNJAB AND OTHERS 5. 201 of 2009 SAROJ RANI VERSUS STATE OF PUNJAB AND OTHERS 6. 495 of 2009 KARAM SINGH VERSUS STATE OF PUNJAB AND OTHERS 7. 528 of 2009 PARAMJIT SINGH VERSUS STATE OF PUNJAB AND OTHERS 8. 719 of 2009 VARINDER PAL SINGH VERSUS STATE OF PUNJAB 9. 880 of 2009 DARSHAN SINGH VERSUS STATE OF PUNJAB AND OTHERS 10. 919 of 2009 RAM SINGH VERSUS STATE OF PUNJAB AND OTHERS 11. 963 of 2009 JOGINDER SINGH VERSUS STATE OF PUNJAB AND OTHERS 12. 1107 of 2009 GULJAR SINGH VERSUS STATE OF PUNJAB AND OTHERS 13. 1128 of 2009 BHUPINDER SINGH VERSUS STATE OF PUNJAB AND ANOTHER 14. 1174 of 2009 SUKHPINDER KAUR VERSUS STATE OF PUNJAB AND OTHERS 15. 1322 of 2009 SANDEEP TIWARI VERSUS STATE OF PUNJAB & ORS 16. 1574 of 2009 HARPREET KAUR VERSUS STATE OF PUNJAB AND OTHERS 17. 1628 of 2009 RAHUL SHARMA VERSUS STATE OF PUNJAB AND OTHERS 18. 1895 of 2009 HARDEEP SINGH DHALIWAL VERSUS PUNJAB STATE AND OTHERS 19. 1949 of 2009 LAKHWINDER PAL SINGH GILL VERSUS STATE OF PUNJAB AND OTHERS 20. 2013 of 2009 RAJESH SHARMA VERSUS STATE OF PUNJAB AND OTHERS 8 C.W.P. No. 1628 of 2009 (O&M) & connected petitions 21. 2072 of 2009 INDER DEV SINGH VERSUS STATE OF PUNJAB AND OTHERS 22. 2081of 2009 PRITPAL SINGH VERSUS STATE OF PUNJAB AND OTHERS 23. 2432 of 2009 KULDIP SINGH VERSUS STATE OF PUNJAB AND OTHERS 24. 2776 of 2009 AMANDEEP SINGH BHATTI AND ANOTHER VERSUS STATE OF PUNJAB AND OTHERS 25. 2792 of 2009 MOHAN LAL AND OTHERS VERSUS STATE OF PUNJAB AND OTHERS 26. 3188 of 2009 KARAMJIT SINGH VERSUS STATE OF PUNJAB AND OTHERS 27. 4102 of 2009 KULDEEP CHAND VERSUS STATE OF PUNJAB 28. 5259 of 2009 DEEPAK ROHELA VERSUS STATE OF PUNJAB AND OTHERS 29. 6601 of 2009 LAKHWINDER SINGH MANN VERSUS STATE OF PUNJAB & OTHERS 30. 7204 of 2009 HARNEK SINGH VERSUS STATE OF PUNJAB AND OTHERS 31. 16121 of 2009 SARABJIT KAUR SOHAL VERSUS STATE OF PUNJAB AND OTHERS 32. 16123 of 2009 BALJINDER SINGH BRAR VERSUS STATE OF PUNJAB AND OTHERS 33. 3683 of 2010 MANBIR SINGH DHILLON VERSUS STATE OF PUNJAB & OTHERS 34. 15621 of 2010 SUKHPAL SINGH SIDHU VERSUS STATE OF PUNJAB & OTHERS (M.M. KUMAR) JUDGE (RITU BAHRI) November 2, 2010 JUDGE Pkapoor 9