HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.11920 of 2009 (O&M) Date of Decision: 13th October, 2011 **** Harvinder Singh Ladhar . . . . Petitioner VS. State of Punjab & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. DS Patwalia, Advocate for the petitioner Ms. Sudeepti Sharma, DAG Punjab **** SURYA KANT, J. (1). The petitioner seeks a mandamus to direct the respondents to appoint him on the post of Junior Engineer (Civil) as per his merit position w.e.f. the date the similarly-placed candidates were given appointment. The petitioner in this regard relies upon an ‘enquiry report’ submitted by the Lokpal, Punjab in complaint No.253 of 2002 which is said to have been accepted by the State Government. According to the petitioner, he is also entitled for appointment for the reason that there exist more than 200 vacancies in the cadre of Junior Engineer (Civil). CWP No.11920 of 2009.doc - 2 – (2). The petitioner passed Senior Secondary Examination from Punjab School Education Board in the year 1989 and has thereafter statedly obtained Degree of Bachelor in Civil Engineering from Amravati University, Maharashtra in the year 1994. The petitioner is said to have worked with a civil Contractor from 23rd February, 1995 to May, 1997 and gained experience. The petitioner competed for selection to 96 posts of Junior Engineers (Civil) advertised by the Subordinate Services Selection Board, Punjab on 15.09.1997, out of which 50% posts were reserved for various categories. The petitioner belongs to the General category. He qualified the Screening Test and also appeared for interview in the said selection. (3). The petitioner has averred that the selection criteria comprised of 100 marks out of which 25 marks were kept for viva voce, 20 marks for Matriculation, 30 marks for Diploma in Engineering, 5 marks for higher qualification, 10 marks for experience, 5 marks for extra-curricular activities and remaining 5 marks were for sports etc. The petitioner, however, was shocked when the result was declared on 11.12.2001 as his name did not figure amongst the selected candidates. CWP No.11920 of 2009.doc - 3 – (4). The petitioner made a complaint No.253 of 2002 to the Lokpal, Punjab and pursuant to a fact-finding enquiry that was conducted in that complaint, the Lokpal found that the petitioner was awarded 51 marks for his academic qualifications and 15 marks in the interview totaling to 66 marks but contrary to the criteria no marks were awarded to him for the ‘experience’. The Lokpal observed that had the petitioner been granted requisite marks for the ‘experience’, his total marks would have been more than the last selected candidate who had been awarded 69 marks. The Lokpal also observed that the petitioner’s total marks ought to have been 70 instead of 66. The Lokpal, Punjab further recommended the State Government “to issue appointment letters” to the 10 complainants including the petitioner. (5). The report dated 25.11.2008 submitted by the Lokpal, Punjab is said to have been accepted by His Excellency, the Governor of Punjab and it was forwarded to the State Government on 02.03.2009 (Annexure P6) for necessary action. The State Government thereafter forwarded the said report to the Chief Engineer, PWD (B&R) on 13.03.2009 but the petitioner having not been given appointment, that he has approached this Court. CWP No.11920 of 2009.doc - 4 – (6). The respondents have filed their reply/affidavit explaining that the report of the Lokpal was discussed in a meeting held under the Chairmanship of the Chief Secretary to Government of Punjab and the Committee was of the view that there was “no justification for acceptance of the recommendations made by Lokpal for appointment, being beyond jurisdiction”. The respondents have maintained that the petitioner was not entitled to any marks for ‘experience’ as the Degree for Bachelor of Engineering was awarded to him on December 13, 1996, hence the experience prior thereto could not be treated as a valid experience. (7). The petitioner, on the other hand, contends that firstly the advertisement nowhere stated that the experience should be post- minimum qualification and secondly the Bachelor of Engineering course had in fact been completed by him in the year 1994 though the Degree was awarded in the year 1996. He also placed reliance on a decision of the Hon’ble Supreme Court in AK Raghumani Singh & Ors. v. Gopal Chandra Nath & Ors., 2000(2) SCT 465 and two decisions of this Court in Daljit Singh vs. PSEB 2001(2) SCT 444; & Lakhwinder Kaur v. State of Punjab & ors. (CWP CWP No.11920 of 2009.doc - 5 – No.350 of 2002 dated 05.11.2009) in support of his contentions. (8). The interim orders passed by this Court, before the arguments were finally heard at length on 07.09.2011, do indicate that for want of correct information, which the respondents were under obligation to bring on record, the petitioner had almost succeeded in obtaining a direction for his appointment even though as has been found now, his claim is totally baseless and merits rejection. (9). To arrive at the above-stated conclusion, it has to be kept in view that only 96 posts were advertised out of which 48 posts were for the General category. The respondents have placed on record as directed by this Court on 07.09.2011, the complete merit list of the candidates who ranked above the petitioner in the merit list. It is revealed that there were 56 candidates who got more than 71 marks. There are other 22 candidates who have got 70 marks. The petitioner or for that matter any selected candidate has got no indefeasible right to seek appointment beyond the number of advertised posts. It is not the petitioner’s case that candidates higher in merit did not join or in view of the presumed 70 marks secured by him, his merit position stood upgraded within the CWP No.11920 of 2009.doc - 6 – advertised posts. No mandamus thus can be issued commanding the respondents to offer appointment to the petitioner overlooking his inter se merit position. (10). With all humility at my command and assuming that the worthy Lokpal has got such like jurisdiction, it is beyond comprehension as to how a direction for appointment of the petitioner ignoring the claim of the candidates higher in merit could be issued by him in utter disregard to Articles 14 & 16 of the Constitution? (11). In my considered view the decision of the State Government not to implement the recommendations made by the learned Lokpal – the same being beyond jurisdiction, is founded upon the correct statement of law and calls for no interference by this Court. (12). In Ashwani Kumar v. State of Punjab & Anr., (CWP No.7155 of 2010) decided on 22.04.2010, while upholding the action of the State Government in refusing to implement the recommendations made by the Lokpal for re-determination of inter-se merit of the selected candidates, this Court held that :- “In my considered view, the State Government has rightly observed that the exercise undertaken by the learned Lokpal, Punjab causing re- CWP No.11920 of 2009.doc - 7 – determination of the inter-se merit of the candidates who competed for selection before a recruiting agency, does not fall within the purview and ambit of the Act, creating the office of learned Lokpal. In these circumstances, this Court cannot issue a mandamus to implement the recommendations made by the learned Lokpal, Punjab.” The Lokpal thus, could not assume and exercise the appellate jurisdiction over the decisions of the Selection Commissions/Boards. (13). The Board appears to have rightly rejected the ‘experience certificate’ of the petitioner issued by a private contractor. In the absence of any proof of payment of salary through cheques, contribution towards Provident Fund etc. by the said employer qua the petitioner, no reliance can be placed on such like ‘experience certificates’ which can be obtained through acquaintances. In competitive selection processes where the candidates are eliminated or selected many a times with a difference of less than one mark, it is obligatory upon the Selecting Agency to give credence to only those documents which are beyond the pale of any doubt. (14). The petitioner’s claim for appointment against future vacancies is equally farce. The candidates who fulfill the CWP No.11920 of 2009.doc - 8 – required eligibility in the later years have got an equal right to compete against such vacancies. Otherwise also, selection list cannot be kept alive for an indefinite period as its validity expires after one year. (15). Adverting to the controversy regarding validity of the experience earned before or after acquisition of the academic qualification, suffice it to observe at this stage that the decision of the Hon’ble Supreme Court in AK Raghumani Singh’s case (supra) is with reference to the provisions contained in the Statutory Rules where the phrase ‘with’ was earlier misconstrued. The said judgement does not lay down as a general principle that the experience acquired before obtaining the minimum academic qualification shall always be a valid experience. The nature of the duties attached to a post, the professional/skilled/technical or general qualifications prescribed for such post and the expectations of the Appointing Authority etc. are several factors to be kept in view while accepting or rejecting the post or pre qualification experience. (16). In the totality of the circumstances the petitioner has got no legally vested right to seek appointment as Junior Engineer (Civil). CWP No.11920 of 2009.doc - 9 – (17). The writ petition is accordingly dismissed. (18). It was a fit case for imposition of costs, however, since the petitioner is still struggling for appointment in government sector, I am inclined to take a lenient view. No costs. 13th October, 2011 vishal shonkar (S u r y a K a n t) Judge