CWP No. 13208 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 13208 of 2003 Date of decision 28 .4.2009 Lakhbir Singh and others ... Petitioners Versus State of Punjab and others. .. Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: Mr.R.K.Chopra, Sr. Advocate with Mr. Amit Chopra ,Advocate for the petitioner Ms.Sudeepti Sharma, DAG Pb. for the State Mr. D.S.Patwalia , Advocate for respondent Nos. 5,7,1to 13, 16,18,20,24,29, 30,32,42,45, 47,49,50,53 and 53 A Mr. C.M.Munjal, Advocate for respondent nos. 22,23 and 25 Mr. Balbir Saini, Advocate for respondent nos. 15,26,46 and 54 Mr. Jagdev Singh, Advocate for respondent nos. 5,7,10to 13, 16,18,20,24,29,30,32,42,45,47,48,49,50,54 and 54 1.Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The petitioners were candidates for 280 posts of Canal Patwaris advertised on 15.5.1995. On 4.8.l996 a screening test was held by the Subordinate Services Selection Board, Punjab (for brevity 'the Board') and result of the screening test was declared on 23.12.1996. The petitioners have claimed that they qualified the test. The elections intervened and the election process commenced on 31.12.1996. In accordance with the code of conduct no interviews were conducted and therefore selection process could not be completed. It is in the wake of the aforesaid situation that the petitioners approached this Court by filing CWP No. 6395 of 1997 which was disposed of on 9.5.1997 with the direction to the respondents to CWP No. 13208 of 2003 2 consider the claim of the petitioners and decide the same. Accordingly, the claim of the petitioners was considered on 19.6.1997. According to the decision dated 19.6.1997 (P.2), the Board stood abolished on 21.2.1997 and it was re-constituted on 15.5.1997 although no Chairman/ Members were appointed by that time. The matter concerning holding of interview was pending. It was also pointed out that Chief Engineer Irrigation and Power had informed that the State Government had decided to supply free water and electricity to the farmers and to waive of abiana. In the wake of the aforesaid decision Canal Patwaris already appointed had become surplus and the appointment of new Patwaris was not essential. The Board also pointed out that as and when Chairman/ Members were appointed, the matter would be placed before the Board and the representatists were to be informed. The petitioners have claimed that water charges were restored on 12.11.2002 and also 52 persons were appointed as Canal Patwaris on compassionate grounds as is evident from the perusal of order dated 23.5.1997 (P.5). In the written statement filed by the State ( respondent Nos. 1 and 4), the stand taken is that the State has issued notifications dated 12.11.2002 and 13.5.2002 (P.6 and P.7) incorporating the revision of canal water rates for all canal systems in Punjab. It has further been pointed out that on account of financial crisis being faced by the State Government the department is unable to make any fresh appointment of Canal Patwaris and had appointed 43 Canal Patwaris on compassionate basis alongwith 9 others who had completed departmental training (R.1). It has further been pointed out that Patwar examination was conducted by the department and not by the Board. CWP No. 13208 of 2003 3 A separate written statement has been filed by respondent no. 2 by stating that on requisition sent by the State, the result of the screening test declared and published by the Board on 23.12.1996, was cancelled and as such no question of reconsideration of candidates for interview would arise. The Board has further claimed that it cannot take any further action unless fresh requisition is received from the office of respondent no.4. As such the claim made by the petitioners is not entertainable. It has further been claimed that there is no back door entry of Canal Patwaris made by the respondents. There are further separate written statements filed by respondent nos. 21 and 51 as also by respondent no. 34 taking similar stand. Another written statement on behalf of respondent nos. 5,7, 10 to 13, 16, 18,20, 24, 28, 30, 32, 42, 45, 47, 49, 50, 53 and 54 has also been filed. Mr. R.K.Chopra, learned senior counsel for the petitioners has argued that once the petitioners have been subjected to a selection process and have been declared successful then for any recruitment to the post of Canal Patwaris in future must be punctuated by considering the cases of the petitioners first and then entertaining the applications of fresh candidates. According to the learned Senior counsel the petitioners had worked hard to compete in the examination and actually qualified as is evident from the result declared on 23.12.1996. Therefore, he has made a limited prayer that as and when the post of Canal Patwaris is sought to be filled up in future, the cases of the petitioners be considered first and then application of any other fresh candidate should be entertained. In support of his submission, learned senior counsel has placed reliance on two judgements of Hon'ble the Supreme Court rendered in the cases of Sunita Rani and others v. State CWP No. 13208 of 2003 4 of Punjab and others Civil Appeal No. 1535 of 2009 decided on 5.3.2009 and State of Punjab and others v. Harcharan Singh and others Civil Appeal No. 3521 of 2006 decided on 7.2.2007. Ms. Sudeepti Sharma, learned State counsel has, however, opposed the submissions made by the learned Senior counsel for the petitioners and has argued that the posts of Canal Patwaris cannot now be filled up on account of financial stringency faced by the respondent-State. She has also pointed out that 52 Canal Patwaris have been appointed on the basis of the government instructions issued for compassionate appointment. Therefore, the question of consideration of the cases of the petitioners would not arise especially when the petitioners have not acquired any vested right merely by qualifying the screening test as per the result declared on 23.12.1996. Mr. D.S.Patwalia, learned counsel for private respondents has supplemented the submissions made by the learned State counsel and argued that the writ petition is liable to be dismissed on the ground of delay and latches. According to the learned counsel in pursuance to the directions issued in the first writ petition the decision by the Board was taken on 19.6.1997 (P.2) and the present writ petition has been filed six years thereafter in the year 2003. According to the learned counsel, the petitioners would be deemed to have acquiesced with the decision and no writ petition could be entertained after such a long unexplained delay and latches. In support of his submission, learned counsel has placed reliance on a judgement of this Court rendered in the case of Jai Bhagwan v. Deputy Director,Sheep Production 2003(3) SCT 851 and has argued that no writ petition could be entertained after the expiry of the period of CWP No. 13208 of 2003 5 limitation as provided by Article 58 of the Limitation Act, 1963, which is three years. He has also placed reliance on another judgement of this Court in the case of K.C.Kapoor v. State of Haryana 2003(3) SCT 934 to buttress his stand further. His further submitted that no vested right has accrued to the petitioners to claim appointment or any preference merely because they succeeded in qualifying the screening test way back in the year 1996. In support of his submission, learned counsel has placed reliance on a judgement of Hon'ble the Supreme Court in the case of State of Haryana v. Subhash Chander Marwaha 1973(2) SLR 137 which has been followed and applied in the case of Jai Singh Dalal and others v. State of Haryana and another 1993(1) SLR 422. He has further placed reliance for the same proposition on another judgement of Hon'ble the Supreme Court in the case of Baitarani Gramiya Bank v. Pallab Kumar and others 2003(4) SCT 321 and argued that once requisition has been made the same could be successfully withdrawn and no indefeasible right to appointment is created merely by virtue of selection. His last submission is that private respondents have been appointed on compassionate ground and the reason for their appointment is that the respondent- State was waiting for the judgement of Hon'ble the Supreme Court which eventually was announced on 4.5.1994 in the case of Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC 138. Mr. C.M.Munjal, learned counsel for other private respondents, has adopted the arguments of Mr. D.S.Patwalia and has submitted that private respondents have been appointed on compassionate grounds and no right of the petitioners is adversely affected. Having heard the learned counsel for the parties, I am of the considered view that the claim made by the petitioners is wholly mis- CWP No. 13208 of 2003 6 conceived and cannot be sustained in the eyes of law. At the first place, cause of action, if any, had arisen to the petitioners on 19.6.1997 when in pursuance to the directions issued by this Court on 9.5.1997 in CWP No. 6395 of 1997 their representation was decided. If at all they were aggrieved by the aforesaid order then writ petition should have been filed within the stipulated period of limitation of three years as has been held by the seven- Judge Constitution Bench of Hon'ble the Supreme court in the case of S.S.Rathore v. State of Madhya Pradesh AIR 1990 SC 10 . The aforesaid view has been followed and applied by this Court in the case of Jai Bhagwan (supra). The ratio of the aforesaid judgement is discernible from para 3 which reads thus: “ After hearing the learned State counsel and perusing the record, I am of the considered view that this petition filed on 13.1.1988 cannot be entertained because it challenges the order dated 2.6.1982, annexure P.8 after a period of over five years. Orders annexures P.4, P.5, P.6 and P.7 have been passed even earlier to the passing of order Annexure P.8. It is well settled principle of law that the period of 3 years prescribed for filing a suit would also be applicable to the filing of the writ petition. In State of Madhya Pradesh and another v. Bhailal Bhai, AIR 1964 SC 1006 a Constitution Bench of the Supreme court has taken the aforementioned view. In a later judgement in the case of S.S.Rathore v. State of Madhya Pradesh AIR 1990 SC 10 a Constitution Bench of seven Judges has taken the view that in service matters concerning Civil servants and others, the period of limitation would be initially one year with power to condone CWP No. 13208 of 2003 7 the delay of six months. The maximum period, therefore, prescribed would be 1-1/2 years. The aforementioned observations are based on the provisions of Section 21 of the Administrative Tribunals Act, 1985 (for brevity, 'the Act'). Referring to the aforementioned provisions, it has been observed that the suits which are outside the purview of the Act, would be governed by Article 58 of the Schedule appended to the Limitation Act, 1963. In other words, in no case, the period of limitation would be over three years. The observations of their Lordships in S.S.Ratore's case (supra) reads as under: “ It is appropriate to notice the provision regarding limitation under Section 21 of the Administrative Tribunals Act. Sub section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub section (3). The Civil Court's jurisdiction has been taken away by the Act and, therefore, as far as Government servants are concerned, Article 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.” It is thus obvious that the present writ petition is hopelessly time barred and cannot be entertained. Therefore, the writ petition is liable to be dismissed on this ground alone.” CWP No. 13208 of 2003 8 Even on merits, the case of the petitioners is without any substance. The petitioners have participated in the screening test held on 4.8.1996 by the Board and were shown successful in the result declared on 23.12.1996. The selection process however came to stand still on account of imposition of code of conduct issued by the Election Commission of India . Although the Board was reconstituted on 15.5.1997 but the requisition stood withdrawn and the result was cancelled by the Board to which reference has been made in the order dated 19.6.1997. Once the aforesaid position emerges then the question is whether the requisition once made could be withdrawn or not. In the case of Baitarani Gramiya Bank (supra) Hon'ble the Supreme Court has held that selection process can be legally withdrawn on account of financial crisis. The situation in the present case is similar as the State has pleaded financial crisis for not filling up the posts of Canal Patwaris. Accordingly, the petitioners would not acquire any indefeasible right of appointment. The aforesaid view of Hon'ble the Supreme Court is discernible from paras 35 and 36 and the relevant portion thereof reads thus: “..... The Bank had bona fide and genuine reasons for pruning down the indent. If the Banks are forced to accommodate officers and Field Supervisors more than their required indent, it will have a crippling effect on the Bank and public interest will stand seriously prejudiced as several employees will have to be unnecessarily retained and public money will have to be expended on them. When public interest competes with private interest, the private interest will have to give way to public interest. In this case, asking the appellant- Bank to accommodate as directed by the BSRB would cause loss to CWP No. 13208 of 2003 9 public revenue. It has been clearly stated in the counter affidavit filed by the Bank before the High Court in the writ petition that on account of various factors including liquidity crisis, ban order for opening new branches and on account of financial burden incurred on account of implementation of Agricultural Rural Debt Relief Scheme and the award given by the National Industrial Tribunal, the Bank had decided not to fill up the posts though at the time of advertisement intents had been given. Thus, it is seen that the decision of the Bank not to fill up the posts was due to financial crisis. Therefore, no direction can be given to issue appointment letters to the respondents/ writ petitioners though they have come out successful in the selection process. 36. The aforesaid being the decision, we would hold that the respondents/ writ petitioners had not acquired any indefeasible right and the decision not to fill up all the vacancies had been taken bona fide reasons and directions as sought for by the respondent cannot, therefore, be issued.” (emphasis added) It is thus well settled that selection does not confer any right of appointment and the appointing authority is fully entitled to withhold the appointment for bona-fide reasons. This proposition of law is well settled since the in the judgement of Hon'ble the Supreme Court in Subhash Chand Marwaha's case (supra). I am further of the view that the appointment of private respondents on compassionate grounds cannot be called into question by the petitioners as the private respondents belongs to entirely a different CWP No. 13208 of 2003 10 category. Their appointments were made in the year 1997 in pursuance of the judgement of Hon'ble the Supreme Court rendered in the case of Umesh Kumar Nagpal's case (supra). In pursuance to the aforesaid judgement, the State has framed policy and then made appointments. As a sequel to the above discussion, the writ petition fails and the same is dismissed. (M.M.Kumar)) 28.4.2009 Judge okg