IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.11526 of 1994 Date of decision: 11.2.2009 Rajpal Singh and others -----Petitioners Vs. State of Haryana and others --Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE JITENDRA CHAUHAN Present: Mr. RK Malik, Sr.Advocate with Mr.Vikas Malik and Mr. Mandeep Kaushik, Advocates. Mr. RS Panghal and Mr. Balraj Singh Rathee, Advocates for the petitioners. Mr. Harish Rathee, Sr. DAG.Haryana for the State. Mr. Dheeraj Jain, Advocate for respondent Nos. 326 to 335. Mr. Nidhesh Gupta, Sr. Advocate with Mr. Vikas Bahal, Mr. Chanderhas Yadav and Mr. J.S.Dahiya, Advocates for respondent Nos. 48, 415-475, 489-849. CWP No.11526 of 1994 Mr. Chetan Mittal, Sr. Advocate with Mr. Puneet Gupta, Advocate for respondent Nos. 480 to 488. Mr. RK Chopra, Sr.Advocate with Ms.Maninder, Advocate for respondent Nos.850- 1128. Mr. Puneet Bali, Advocate for respondent Nos.1129 to 1262. Mr. Pritam Saini, Advocate for the added respondents. Adarsh Kumar Goel,J. 1. This petition has been filed by 60 petitioners challenging selections of 2395 candidates for Patwar training on 3.8.1994 including Respondent Nos. 10 to 1268. 2. Case of the petitioners is that vide advertisement dated 7.11.1992, 1248 posts of candidates for Patwar Training were advertised. In pursuance of the said advertisement, the petitioners also made the necessary applications. The Subordinate Services Selection Board made selection of 2395 candidates on 3.8.1994. Prior to declaration of result of selection on 26.5.1994, the then Chief Minister visited Balsamand Village of his 2 CWP No.11526 of 1994 constituency and gave a speech which was recorded by one Bhagirath. The contents of this speech are Annexure P-4. The selection was illegal for being in excess of the advertised posts apart from other reasons i.e. marks for interview were more than 15%, in violation of law laid down by the Hon’ble Supreme Court in Ajay Hasia and others v. Khalid Mujib Sehravardi and others, (1981) 1 SCC 722; the selection suffered from the same vice as was found by this Court on 4.2.1993 in regard to the earlier selection, which order was affirmed by the Hon’ble Supreme Court in Civil Appeal No.3859-60 of 1993 (Satpal and others v. State of Haryana and others), on 14.9.1993 (The judgment is reported as 1995 Supp (1) SCC 206); the then Chief Minister had openly declared that 15 to 20 posts each were allocated to 90 MLAs, 15 MPs and 5 Chairman and Members of the Board. The Chief Minister further stated that 10 to 15 candidates will be selected from big villages and 7 to 8 candidates from smaller villages of his constituency. Thus, the selection was not on merit but on extraneous considerations. 316 candidates, a list of 3 CWP No.11526 of 1994 which has been given in the petition belong to Adampur constituency belonging to the then Chief Minister; 300 candidates from Kalka Constituency from where Shri Chander Mohan, son of the then Chief Minister contested the election. All the 65 candidates from Village Mohammedpur Rohi from where the then Chief Minister hailed, were selected. The Chairman and Members of the Board were not independent persons and were nominees of the Chief Minister. Earlier, selections of 100 ASIs of Police and 96 Excise and Taxation Inspectors by the same Board were quashed apart from selection of 18 Inspectors and 800 Clerks. List was prepared in the office of the Chief Minister and members of the Board and the Chairman of the Board had only completed the formalities. 250 posts were reserved for ex-servicemen and as per instructions, there was further bifurcation for disabled ex-servicemen, the dependents whose father was killed/disabled beyond 50%, the ex-servicemen themselves and dependents of ex- servicemen but the said sub division was not kept in mind while making selection in the category of ex-servicemen. 4 CWP No.11526 of 1994 3. In the written statement filed by the Director, Land Records, the averments in the petition have been disputed, inter-alia by submitting that the recruitment was in accordance with the Haryana Revenue Patwaris (Group ‘C’) Service Rules, 1981 and though, posts of 1248 Patwaris were advertised, more vacancies accrued between the period intervening initial requisition and selection. 4. Written statement has also been filed by the Secretary, Subordinate Services Selection Board, inter-alia, stating that the Board was independent and was not influenced by any political authority. The criteria followed by the Board was as under:- “Viva Voce test 25 marks Minimum Educational 50 marks Qualification Higher qualification 10 marks Sports/Curricular 5 marks Hand Writing 10 marks Activities” It has also been mentioned that there were only 6 candidates from Village Mohammedpur Rohi and not 65. Similarly, from Hissar, District which included constituency of Shri Bhajan 5 CWP No.11526 of 1994 Lal instead of there being 1200 candidates, there were 350 selected candidates. From Ambala District which included constituency of son of Shri Bhajan Lal, there were 150 selected candidates in the first 1200 selected candidates. It has also been stated that in the category of Ex-servicemen, appointment depended on suitability out of the available candidates. It has been further stated that after advertisement dated 7.11.1992 for 1248 posts, selection of 485 Patwaris, out of whom 377 had already joined was set aside by this Court on 4.2.1993 which was upheld by the Hon’ble Supreme Court on 14.9.1993. Further, 125 posts of Patwaris fell vacant each year. These circumstances justified selection of 2395 candidates as against revised demand of 1983 candidates, making allowance for some candidates not successfully completing the training. 5. Affidavit has also been filed by Shri Bhajan Lal, the then Chief Minister, inter-alia, stating that the tape recording of the speech could be manipulated. The newspaper reporting of the speech could also be inaccurate. There was unemployment in the State and it was the duty of the Chief Minister to listen to the grievances of the public. He had to make speech to satisfy the audience. The 6 CWP No.11526 of 1994 Subordinate Services Selection Board is an independent body. He had gone to Balsamand and other villages and had given hope to the people that their grievances will be removed, which included unemployment. Speech had political overtones to carry the public with the policy of the Government. One had to see that the audience was not disappointed and a hope had to be given that their problems will be redressed. Lists were not prepared in the office of the Chief Minister and selections were made on merit. 6. Some of the selected candidates have also filed a reply to the effect that the selections were not liable to be disturbed. 7. While issuing notice on 24.8.1994, appointments beyond 1248 posts were stayed. The matter was earlier decided by this Court vide judgment dated August 2, 2005. Selection was quashed and a fresh selection process was directed to be initiated. It was directed that the selected candidates who had already been allowed to join will continue upto the end of July 2007 so that in a period of two years, fresh selection may take place and till then, the work may not suffer. By the same judgment, writ petition 7 CWP No.11526 of 1994 filed by 1055 candidates who were selected in pursuance of a subsequent advertisement dated 7.9.1997 seeking direction for appointment was also dismissed noticing the stand of the State that the posts stood abolished on account of financial problem. 8. The basis of the judgment was that awarding of high percentage of marks for interview was not justified; interview criteria was fixed on 19.5.1993 while the applications were invited on 7.11.1992. It was observed after considering the affidavit of the then Chief Minister and other circumstances on record that the likelihood of unfairness was not ruled out. It was held that there was no equity in favour of selected candidates once the process of selection was held to be tainted. Reliance was placed on the observations of the Hon’ble Supreme Court in Satpal Singh (supra), Krishan Yadav and another v. State of Haryana and others, JT 1994(4) SC 45 = AIR 1994 SC 2166, Rajesh Kumar Gupta v. State of U. P., 2005(5) SCC 172, apart from other judgments. The selected candidates preferred an appeal to the Hon’ble Supreme 8 CWP No.11526 of 1994 Court being Civil Appeal No.4564 of 2007 (Ram Avtar Patwari and others v. State of Haryana and others), which was allowed on 20.9.2007 (vide judgment reported as (2007) 10 SCC 94). It was held that allocation of more than 15% marks for the interview did not vitiate the selection. The record showing allocation of marks to different candidates was not considered by this Court and on that account, the matter required reconsideration. Emphasis on the speech of the then Chief Minister appeared to be not wholly appropriate in view of what was observed by the Hon’ble Supreme Court in Satpal (supra) para 5, that selection could not be held to be politically motivated merely because large number of candidates were from a particular constituency unless political interference was found. 9. We have heard learned counsel for the parties and perused the record. 10. Learned counsel for the petitioners submitted that as per letter dated 18.9.1992, while sending requisition for candidates, it was mentioned that at the time of selection, decision of the Hon’ble Supreme Court in Ajay Hasia 9 CWP No.11526 of 1994 (supra) should also be kept in view, while the criteria adopted showed that decision of the Hon’ble Supreme Court in Ajay Hasia (supra) was not kept in view which required interview marks to be not more than 15%. It was further submitted that the speech of the Chief Minister was a clear evidence of selections having been made not on merit but on extraneous considerations. It was further submitted that selections of candidates beyond the advertised posts, was in violation of Article 16 of the Constitution, denying equal opportunity to candidates who may have become eligible after the advertisement. He next submitted that selection of Ex-servicemen to the 250 posts had to be made as per the instructions and posts earmarked against categories A and B in the instructions, were required to be followed. Reliance has been placed on following judgments:- i) Dr. Krushna Chandra Sahu and others v. State of Orissa and others, 1995(5) SLR 337 (SC), To submit that Selection Committee did not have inherent jurisdiction to lay down norms for selection and the said function had to be discharged by the rule making authority. 10 CWP No.11526 of 1994 ii) Ajay Hasia etc. v. Khalid Mujib Sehravardi and others etc., AIR 1981 SC 487. To submit that marks of interview could not exceed 15%. iii) iv) v) Hoshiar Singh v. State of Haryana and others, AIR 1993 SC 2606. Surinder Singh and others v. State of Haryana and others, 2001(4) RSJ 370 (SC), Satbir Singh Bura and others v. The Haryana State Electricity Board and others, 1996(2) SLR 372 (P&H), } } } } }to submit that appointment }on posts beyond the } advertised posts was not } permissible. } } } } } vi) Naresh Chander and another v. State of Haryana and others, CWP No.6325 of 1996 decided on 23.4.1997 to submit that laying down of requirement of securing minimum marks by the ex- servicemen in the viva voce test was not required. vii ) Sukhbir Singh v. State of Haryana and others, 1998(4) RSJ 450 (P&H), to submit that Board was bound to adhere to the priority criteria indicated in the instructions on the issue of reservation for ex- servicemen. 11. Mr. Nidhesh Gupta, learned counsel for the selected candidates submitted that the selections were not vitiated on account of interview marks being more than 11 CWP No.11526 of 1994 15%. He submitted that there was no violation of directions of the State Government in the matter of requiring the judgment of the Hon’ble Supreme Court in Ajay Hasia (supra) to be kept in view. The said judgment did not lay down any inflexible rule that marks for interview could not be beyond 15% in any situation. The said judgment laid down the criteria of upper limit of 15% for admissions. Requirement of interview marks for selection to various services depended upon the nature of posts and other factors. It was also submitted that no fault could be found with selection of candidates beyond the advertised posts as in the earlier judgment of this Court, the selections were not set aside on that ground. Referring to the contention that selections were not on merit but were influenced by the then Chief Minister for political reasons, it was submitted that the details of figures mentioned in the writ petition were not substantiated. As regards the submission on the issue of category-wise allocation of Ex-servicemen, it was submitted that no details of Ex-servicemen, who ought to have been appointed, have been furnished. 12 CWP No.11526 of 1994 Reliance has been, inter alia, placed on following judgments:- i) ii) iii) iv) v) vi) Anzar Ahmad v. State of Bihar, 1994(1) SCC 150. AP State Financial Corporation v. CM Ashok Raju, 1994(5) SCC 359. Kiran Gupta v. State of UP, (2000) 7 SCC 719. Subash Chander Verma v. State of Bihar, 1995 Supp 1 SCC 325. Jaswinder Singh v. State of J&K, (2003) 2 SCC 132. Vijay Syal v. State of Punjab, (2003) 9 SCC 401. } } } } } } } } }To submit that allocation }of less than 15% marks in }the interview is not an } inflexible rule. } } } } } } } 13 CWP No.11526 of 1994 vii) viii ) ix) x) xi) District Copllector & Chairman Vijayanagaram v. M.Tripura Sundari Devi, (1990(3) SCC 655. Gujarat State Dy.Executive Engineers’ Assn. v. State of Gujarat, 1994 Supp (2) SCC 591. Meera Massey (Dr) v. State of Bihar, 1998(3) SCC 88. Roshni Devi v. State of Haryana, (1998) 8 SCC 59. Budhinath Choudary v. Abhikuar, (2001) 3 SCC 328. }in support of the } submission that while } passing a final order, the } Court should not ignore } the fact that the } candidates had already } worked for 15 years. } } } } } } } } } 12. Mr. Harish Rathee, learned Sr. Deputy Advocate General, Haryana, appearing for the State submitted that as per his instructions, the selections already made may not be disturbed mainly on account of the fact that the selected candidates had already worked for 15 years. He, however, submitted that no appointment was to be made beyond the advertised posts. 13. Mr. Chetan Mittal, learned counsel for the candidates who were in excess of 1248 advertised posts 14 CWP No.11526 of 1994 submitted that selection of such candidates was valid, inter- alia, on the ground that while upholding the quashing of earlier selection, the Hon’ble Supreme Court in Satpal (supra) had directed relaxation in age to be given and the said 485 posts were required to be added to the advertised posts. There was valid justification for addition to the advertised posts as 125 posts arose every year as per stand of the State in paras 8, 9 and 15 of the written statement. He also submitted that the State having taken stand in the written statement that selection of the said candidates was valid, learned DAG, Haryana was not justified in now submitting that selection only upto the extent of advertised posts should be upheld. 14. Following questions, thus, arise for consideration:- (i) Whether selection beyond 1248 advertised posts can be upheld? (ii) Whether selection is vitiated by not following the criteria laid down in Ajay Hasia (supra)? 15 CWP No.11526 of 1994 (iii) Whether selections are liable to be quashed on account of allocated seats for sub categories for Ex- servicemen having not been filled up as per instructions? (iv) Whether selection is vitiated by extraneous considerations? Re: (i) 15. As regards selection beyond 1248 posts, it is well settled that normal rule is to restrict appointments to the number of vacancies advertised. The reason for this rule is that all eligible candidates are entitled to opportunity to compete and there should be minimum time gap between the advertisement and selection. After referring to the case law on the point in State of UP v. Rajkumar Sharma, (2006) 3 SCC 330, it was observed:- “13. Filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights granted under Articles 14 and 16 of the Constitution. (See Union of India v. Ishwar Singh Khatri 1992 Supp (3) SCC 84; Gujarat State Dy. Executive Engineers’ Assn . v. State of Gujarat 1994 Supp(2) SCC 591; State of Bihar v. Secretariat Asstt. Successful Examinees 16 CWP No.11526 of 1994 Union, AIR 1994 SC 736; Prem Singh v. Haryana SEB (1996) 4 SCC 319; Surinder Singh v. State of Punjab AIR 1998 SC 18 and Kamlesh Kumar Sharma v. Yogesh Kumar Gupta AIR 1998 SC 1021.) 16. Apart from the above, in the present case, fairness of selection is itself suspicious. Stay has been operating for 15 years against appointment of persons beyond advertised vacancies. Even the State has now taken the stand that selections beyond advertised vacancies should not be appointed. No doubt, it was observed in the earlier judgment of this Court that there was justification for recommendation of candidates in excess of advertised posts but in the final order, all selections were quashed. Taking into account all the facts and circumstances of the present case, we are of the view that selections beyond 1248 posts cannot be upheld. Re: (ii) & (iii) 17. As regards the question of criteria in Ajay Hasia (supra) having not been adhered to and priority for sub categories of ex-servicemen having not been followed, we are of the view that Ajay Hasia (supra) being a case of 17 CWP No.11526 of 1994 admission and observations in Ajay Hasia (supra) having been limited in later judgments to admissions, we are unable to accept the plea that allocation of more than 15% marks will by itself vitiate selections. Similarly, the question of not strictly following the instructions regarding priority to be given to the ex-servicemen, there being only one candidate in the petition who is an ex-serviceman and also for other reasons for not interfering with the selections at this stage, is purely academic and on this ground, selections are not liable to be quashed. Re:(iv) 18. Coming now to the main question as to whether selection should be held to be vitiated on account of favouritism or extraneous considerations, we find considerable force in the submission made on behalf of the petitioners that strong suspicion clearly arises about the interference of the then Chief Minister. 19. The Hon’ble Supreme Court set aside the finding earlier recorded on the ground that record showing allocation of marks to different candidates was not 18 CWP No.11526 of 1994 considered and mere fact that large number of candidates were selected from a particular constituency was not enough to infer political interference, as observed in the earlier judgment of the Hon’ble Supreme Court in Satpal Singh (supra). 20. We have again considered the matter in the light of observations of the Hon’ble Supreme Court and submissions now made. Present case is not the one where inference is sought to be drawn from the mere fact of large number of candidates being from particular constituency. There was further circumstance of the then Chief Minister having almost accepted his interference in the matter. 21. In the earlier judgment of this Court dated 2.8.2005, it was, inter-alia, observed:- “We have carefully considered the implications of the written statement and the speech aforequoted. The gist of the written statement is that though a promise had been made to discontented, unemployed and restive youth yet there was no intention of honouring it and that the entire exercise was designed only to reassure the audience. In a nut shell, Ch.Bhajan Lal has admitted that he did not mean what he had said. 19 CWP No.11526 of 1994 We cannot refrain from making some observations which stem from these facts. We clearly deplore the insensitivity of some of our senior public-men, who without the slightest hesitation or flicker of the conscience, exploit the naiveté and gullibility of our youth and give them false hope. The reality, however, appears to be different. The petitioners have put on record a list to show that the promise made by Ch.Bhajan Lal was not an empty one but was in fact implemented in letter and in spirit. Undoubtedly it would be impossible for the petitioners to give full details of all the selected candidates and to identify the villages to which they belonged but from the written statement of the Board, we find that the allegations stand substantially admitted.” 22. The Hon’ble Supreme Court observed that allocation of marks to different candidates was not considered and mere fact that large number of candidates were selected from a particular constituency was not enough to infer political interference. On this aspect, learned counsel for the petitioners has not been able to highlight the pattern of allocation of marks to different 20 CWP No.11526 of 1994 candidates and submitted that such exercise may not, in the facts of the case, be of much relevance. On the other hand, learned counsel for the selected candidates has disputed some of the figures mentioned in the petition about the candidates belonging to particular constituencies. 23. The fact remains that strong suspicion of interference of the then Chief Minister has not been dispelled. The petitioners cannot be expected to bring direct evidence of interference. It does not mean that subversion of rule of law by persons holding high public offices should be ignored when political interference is patent. In Krishan Yadav (supra), the Hon’ble Supreme Court observed:- “20. It is highly regrettable that the holders of public offices both big and small have forgotten that the offices entrusted to them are sacred trust. Such offices are meant for use and not abuse. From a Minister to a menial everyone has been dishonest to gain undue advantages. The whole examination and the interview have turned out to be farcical exhibiting base character of those who have been responsible for this sordid episode. It shocks our conscience 21 CWP No.11526 of 1994 to come across such a systematic fraud. It is somewhat surprising the High Court should have taken, the path of least resistance stating in view of the destruction of records it was helpless. It should have helped itself. Law is not that powerless.” 24. It is well settled that in the matter of giving of jobs, political interference amounts to denial of equal opportunity guaranteed under Article 16 of the Constitution and selection process has to be fair, transparent, objective and non-discriminatory. In a system governed by rule of law, there is no scope for selection being made on whims and fancies even of Chief Minister. The fairness should not only exist but should appear to exist. Though, the Court has to be cautious when allegations of political interference are made and such allegations cannot be taken it at face value, at the same time, the Court cannot ignore the happenings in public life and in such matters, decision has to be taken on the basis of inference from attending circumstances, on probabilities. We may also refer to judgment of the Hon’ble Supreme Court in Shivajirao Nilangekar Patil v. 22 CWP No.11526 of 1994 Mahesh Madhav Gosavi, (1987) 1 SCC 227, wherein it was observed:- “37. The allegations of the petitioner have been noted about the role of the Chief Minister. It is well to remember that Rajagopala Ayyangar, J. speaking for this Court in C.S. Rowjee v. APSRTC, AIR 1964 SC 962, observed at p. 347 of the Report that where allegations of this nature were made, the court must be cautious. It is true that allegation of mala fides and of improper motives on the part