Letters Patent Appeal No.161 of 2009 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.161 of 2009 Date of decision: 7 .10.2009 *** Pavittar Pal Kaur ...Appellant Versus Surinder Kaur Saroya and others ...Respondents CORAM: HON'BLE MR. JUSTICE J.S.KHEHAR. HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Rajiv Atma Ram, Senior Advocate with Ms. Sunita Sharma, Advocate for the appellant Ms. Rita Kohli, Additional Advocate General, Punjab for respondent no.2. Mr. Mukul Aggarwal, Advocate. Mr. Kanwaljit Singh, Senior Advocate with Mr. I.S.Gill, Advocate. ***** S.D.ANAND, J. 1. On a plea filed by respondent no.1 (vide CivilWrit Petition No.3206 of 2007), the appointment of the appellant, as the Secretary of the Punjab School Education Board (hereinafter referred to as “the Board”) was invalidated by the learned Single Judge on the following precise premise:- 1) The appellant was, at the time of impugned appointment on 31.8.2006, facing a prosecution in case FIR No.12 dated 14.8.2002, Police Station Vigilance Bureau, Letters Patent Appeal No.161 of 2009 -2- **** Mohali for offences under Sections 420, 467, 468, 471 and 120-B IPC pertaining to the 'tainted' recruitment of 134 Clerks as members of the establishment of the Board. The appellant was one of the member of the Selection Committee. 2) At one stage, the matter pertaining to recruitment aforementioned, had also been looked into by the Lok Pal, Punjab, who had recommended that those involved in that recruitment scam (including the appellant) be not given any assignment involving selection of candidate(s) on the basis of any test in future. That recommendation of the Lok Pal had been accepted by the Governor of Punjab, vide an order dated 19.2.2002 recommending action in accordance therewith was came to be passed by the latter. 2. The learned Single Judge was not oblivious of an averment (uncontested otherwise) that the recommendation of the Lok Pal had been stayed by this Court, vide order dated 1.10.2008 in Civil Writ Petition No.17428 of 2008. It also noticed an averment (uncontested too) that the impugned appointment of the appellant was subject to the outcome of the criminal prosecution and that the impugned appointment came to be made at a time by which the charges against the appellant had not been framed by the Ropar Court where the prosecution aforementioned was pending. In spite of the noticing of the above facts, the learned Single Judge recorded detailed reasoning in support of the view in favour of the invalidation of the impugned appointment and observed as under:- “The appointment of Respondent No.4 is, admittedly, subject to outcome of the criminal proceedings pending against her. As is well known, criminal trial takes long time and the tenure of the post in question is three years. Three years period is already Letters Patent Appeal No.161 of 2009 -3- **** over. Earlier Respondent No.4 or any other co-accused seems to have obtained the stay from the Hon'ble Supreme Court which has alrady been vacated. How much time is likely to be consumed in decision of the case, is not known. The benefit of pendency of criminal proceedings and delay in its disposal should not be given to Respondent No.4. It is a question of the interest of the institution and the public at large, particularly preserving and protecting the faith in the institution like the Board of School Education where the career of thousands and lacs of students is involved. The guidelines issued by the State Government clearly indicate that the persons against whom the vigilance/criminal case are pending, the same shall be taken into consideration at the time of consideration for appointment as the Secretary to the Board. These guidelines have been totally ignored.” 3. It was canvassed before us, on behalf of the appellant that the learned Single Judge could not have invalidated the appointment of the appellant on account of mere pendency of the prosecution because no charge against her had been framed by that time and that she came to be charged sheeted only on 6.6.2007. In order to buttress that point of view, the learned counsel placed implicit reliance upon the judgment rendered by the Apex Court in Union of India Vs. K.V.Jankiraman 1991(3) J.T. 527. 4. It was also the grievance in continuity that the service record of the appellant (wherein her work and conduct had throughout been assessed as Very Good or Outstanding) should have been held to be adequate enough to outweigh the pendency of the prosecution against her, particularly when she had not been charge sheeted by that time. Yet another plea, urged in the context, was that the learned Single Judge ought to have attached importance to the fact that the three years tenure of the appellant was to be Letters Patent Appeal No.161 of 2009 -4- **** over on 31.8.2009 and, in that view of things, the judgment rendered by the learned Single Judge invalidating the impugned appointment was ultimately to be of almost academic importance. 5. Before we proceed to undertake the adjudicatory exercise, we deem it appropriate to notice the following facts, having a relevant bearing on the disposal of the controversy under reference, which (facts) are beyond the pale of controversy. 6. Section 13 of the Punjab School Education Board Act, 1969 (hereinafter referred to as “the Act”) provides the following constitution of the Board:- “a) The Chairman b) The Vice-Chairman c) The Secretary; and d) such other officers as may be appointed by the Board” 7. Section 15 of the Act, which provides the tenure and the nature of the duties of the Secretary, is extracted hereunder:- “15. (1) The Board shall appoint a person to be its Secretary from a panel sent by the State Government consisting of the officers of the State Government and the eligible officers of the Board for a term of three years which may further be extended by the Board for a period of two years. If a person is appointed as a Secretary from amongst the officers of the State Government his appointment as such, shall be treated on deputation and it shall be governed by the relevant rules or policy instructions of the State Government. Provided that no person appointed as Secretary of the Board shall continue as such beyond the age of superannuation prescribed for the employee of the Board. Letters Patent Appeal No.161 of 2009 -5- **** (1-A) The term and conditions of appointment of the Secretary shall be such as may be prescribed. (2) The Secretary shall be -- a) The Principal Executive Officer of the Board and shall-- i) authenticate all orders and decisions of the Board; and ii)represent the Board in all legal procedure except where the Board resolve otherwise. b) entitled to be present and to speak at any meeting of the Board; and c) responsible for-- i) the presentation of the annual estimates and statement of accounts, including the balance sheet to the Board. ii)the custody of the Board Fund and ensuring that all moneys of the Fund are expended for the purpose for which they are granted or allotted; iii)keeping the minutes of the meetings of the Board and furnishing a copy thereof to the State Government; and iv)discharging such other functions as may be prescribed. 3. The Board may appoint such other employees as may be considered necessary for carrying out the provisions of this Act and the regulations made thereunder, on such terms and conditions of service as may be prescribed.” 8. Regulation 12 of the Punjab School Education Board (Employees Service) Regulations, 1988 (hereinafter referred to as “the Regulations”) which provides the qualifications and the mode of appointment of the Secretary of the Board, is quoted hereunder:- “12 Qualifications and mode of appointment of Secretary:- (1)(a) A Postgraduate degree with at least 50% marks or LL.B. and; (b) 20 years experience in educational administration-cum- teaching out of which 5 years as Circle Education Officer or its equivalent or higher capacity; Letters Patent Appeal No.161 of 2009 -6- **** OR 8 years experience as Principal of a Degree College or its equivalent or higher capacity; OR 5 years of administrative experience in a University of the State of Punjab on a post not below the grade of Deputy Secretary in the office of the Board; OR 5 years of administrative experience as a Deputy Secretary or in an equivalent or higher grade post in the office of the Board; OR A member of the Indian Administrative Service or a member of the Punjab Civil (Executive Br.) with atleast 5 years experience on the recommendations of the Chief Secretary; Provided that knowledge of Punjabi upto Matriculation or its equivalent standard shall be compulsory.” 9. Back to the criticism levelled at the finding by the learned Single Judge. 10. It is apparent from the record that initially it is one V.K.Bhalla, a member of the Punjab Civil Services (Executive Branch), whose name had been initially recommended for appointment as Secretary of the Board. He did not., however, join the post. In the select list prepared at that selection process, the name of Sh. V.K.Bhalla aforementioned appeared at serial no.1; whereas the names of the appellant and respondent no.1, appeared at serial No. 6 and 7 respectively. It was on account of non joining of Sh. V.K.Bhalla that the appellant was appointed as Secretary of the Board, purely on temporary basis till further orders, vide order dated 31.3.2006 (Annexure P-4) passed by Vice-Chairman of the Board. 11. There is no controversy about the fact that the appellant was, at Letters Patent Appeal No.161 of 2009 -7- **** the relevant point of time, facing a prosecution and also a vigilance enquiry against her in the context of the appointment of 134 Clerks as employees of the Board. Pursuant to an order dated 27.5.2003 passed by a Division Bench of this Court in Civil Writ Petition No. 16002 of 2002 titled Sarabjit Kaur and others Vs. Punjab School Education Board and others, a High Powered Committee had been constituted for examining the entire selection process of the Clerks aforementioned. The Committee consisted of a former Judge of this Court and two former District Judges from the State of Punjab and Haryana respectively. The Committee noticed gross irregularities in the selection aforementioned and it further held that all the selection norms had been violated with impunity, right from the stage of entertainment of the applications and upto the preparation of the final selection list. 12. Another unsuccessful candidate, who claimed to be more meritorious than the appellant, had also filed Civil Writ Petition No.5343 of 2006 ( Jagbir Kaur Brar Vs. State of Punjab and others). In that matter, the following order (at the time of motion hearing) was granted on 18.4.2006:- “Learned counsel for the petitioner inter-alia contends that the Respondents have completely ignored the observations of the Govt. contained in the letter of recommendation of the panel for the purpose of appointment of Secretary, Punjab School Education Board. The observation clearly indicates that the service record of the officers working in the afore-stated Board should be carefully scrutinized to ensure that no complaint/vigilance inquiry/Department proceedings are pending against him. This has completely been ignored while considering the claim of Respondent No.4 and selecting her for being appointed as Secretary of the afore-stated Board, in fact the aforesaid Respondent is facing criminal charges initiated Letters Patent Appeal No.161 of 2009 -8- **** against her and the same are subjudice as yet. This fact was to the knowledge of the Board but the same has been ignored in utter violation of the observation of the Govt. Notice of motion for 05.05.2006. Dasti as well.” 13. That order was followed up by the following order dated 6.7.2006:- “Pursuant to our earlier order dated July 03, 2006, a short affidavit of Sh. R. Vankat Rattanam, IAS Special Secretary to the Govt. Punjab dated 5.7.2006 has been filed in the Court today, which is taken on record. Copy thereof has been supplied to the opposite counsel as also the inter se Respondents also. Perusal of the aforestated affidavit shows that a communication dated 30.6.2006 addressed to the Chairman, Punjab School Education Board, Mohali, had been sent, the receipt of which has been duly accepted as on 3.7.2006. However, the ld. counsel of the Board has apprised us that the Board shall make endeavour for making the regular appointment to the post of Secretary Punjab School Education Board within the time frame set out by the Govt. In case the same is delayed for any reason, the extension shall be asked for accordingly.” 14. It was consequent upon the above mentioned orders that the Board forwarded a fresh panel of officers to the Chairman of the Board vide its communication dated 24.7.2006 (Annexure P-6). The panel consisting of five names also included the names of appellant, respondent no.1 and one Jagbir Kaur Brar who was petitioner in the Civil Writ Petition No.5343 of 2006. The impugned selection process followed thereafter and it is in the Letters Patent Appeal No.161 of 2009 -9- **** course thereof that the appellant was appointed vide order dated 31.8.2006 (Annexure P-9). That order categorically indicates that “the Board will take necessary action as per the final outcome of the case, which is pending against her in the Ropar Court”. That order was issued by the Chairman of the Board. In terms of the order dated 31.8.2006, the appointment of the appellant was regular in character. 15. After having noticed the relevant provisions of the Act touching the appointment process for the post of Secretary of the Board and also the circumstances under which the appellant ultimately came to be appointed, on regular basis, to the post of Secretary to the Board, we get back to examine the respective pleas of the parties before this Court. 16. The reliance placed by the learned counsel appearing on behalf of the appellant upon K.V.Jankiraman's case (supra) is thoroughly misconceived. That was a case in which the Apex Court was dealing with a controversy about the timing of adoption of the sealed cover procedure in respect of an employee against whom disciplinary/criminal proceedings were pending. In that case, the Full Bench of the Central Administrative Tribunal (hereinafter referred to as “the Tribunal) had taken a view that “it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of the preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure”. Letters Patent Appeal No.161 of 2009 -10- **** 17. The Apex Court affirmed that point of view by observing as under:- “...We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant- authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge- memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure.” 18. It is apparent, from a perusal of that ruling, that the Apex Court was dealing with an entirely different issue. The present is a case where not only that an FIR had been registered against the appellant, the framing of charges therein had been delayed only on account of the stay order obtained by the appellant from the Apex Court. It is further apparent from a perusal of Annexure P-1 that the matter had initially been fixed for framing of charge on 8.7.2004. The learned Single Judge had recorded a finding of fact that the stay had since been vacated. It follows therefrom Letters Patent Appeal No.161 of 2009 -11- **** that the delay in framing of charges had occurred only on account of the judicial proceedings launched by the appellant. For want of equivalence/similarity of the facts and circumstances, the judicial pronouncement in K.V.Jankiraman's case (supra) has no bearing on the present case. 19. Apart therefrom, the pendency of that prosecution was not the only fact which weighed with the learned Single Judge in obtaining the view under challenge. The learned Single Judge duly noticed the recommendation made by the Lok Pal against the appellant and the acceptance thereof by the Governor of Punjab. It would require pertinent notice that the recommendation aforementioned came to be stayed by this Court only vide order dated 1.10.2008. It is, thus, obvious that the Punjab Governor's order accepting the recommendation made by the Lok Pal, and directing initiation of the proceedings in accordance therewith, was in force on the date the impugned selection process came about. There was, thus, nothing wrong on the part of the learned Single Judge in having taken the orders aforementioned into consideration in obtaining the view under challenge. 20. We have carefully examined the allegations which form the subject matter of the charges against the appellant. As a senior officer of the Board, she was a member of the Selection Committee which recommended the appointment of 134 Clerks. There were precise allegations that all those appointments were tainted and actuated by considerations which were extraneous in character. Though the charges under the Prevention of Corruption Act (in that very case) against the Letters Patent Appeal No.161 of 2009 -12- **** appellant came to be quashed by this Court vide order dated 20.2.2008, the appellant is none-the- less being prosecuted for the offences under Sections 420, 467, 468, 471 and 120-B IPC. 21. Irregularities, whether actuated by corrupt practices or otherwise, have already eroded the confidence of the common man in the public service dispensation. Infact, appointments to the public offices must compulsively be absolutely transparent in character. The appointees thereto, apart from fulfilling the eligibility criteria, must measure upto the expected standard of integrity. This is precisely what the rules all over depict. Any appointment, which is apparently 'wrong', erodes the sacrosanct character of the public office. Even in the case of equivalence of qualifications of various candidates for a particular appointment or further even if the particular candidate holds the higher qualification and/or experience, the appointing authority would be well advised to refrain from appointing that candidate if his manner of functioning has been or is under cloud. There is no reason why the appointing authority, other things being equal, should not prefer a 'clean' candidate. 22. Further, the mere fact of quashment of the charge under the Prevention of Corruption Act does not alter the nature of the allegations whole hog. An extraneous factor is not necessarily relatable to financial benefit. Any factor, which must not go into the making of a selection on merit, would be termed as extraneous. It is a matter of common observation that a very loose interpretation is given to that expression. That interpretation is, however, not appropriate. An extraneous consideration could very well include undeserved priority given to a candidate on account Letters Patent Appeal No.161 of 2009 -13- **** of a recommendation or caste factor or the like. Money may have no role at all to play in the grant of the benefit. Nonetheless, such a consideration would be foreign to the realm of merit and would be extraneous in character. 23. We find from the material obtaining on the file that the appellant was facing charges which were fairly serious in nature. A candidate facing such charges, would not deserve to be considered for appointment to a public office of the indicated category which (public office) involved the handling of a job of great responsibility. 24. It would be relevant, to quote at this stage, the following observations made by the learned Single Judge in the context:- “From Section 15(2) of the Act, it appears that the Secretary to the Board is the Principal Executive Officer. The Secretary is Privy to all decisions of the Board, be it relating to the decisions of the Board, secrecy of examinations including setting of question papers and marking of answer sheets, presentation of the statement of accounts, custody of Board funds, so and so on. It clearly depicts that the nature of duties of the Board are highly confidential and sensitive. The post of the Secretary needs to be manned by a person of highest integrity to preserve the faith of the students and their parents. Any abrasion can result in chaos and is detrimental to the larger public interest, particularly the interest of the students who are future of the country. Respondent No.4 has been accused of a serious dereliction of duty and accused of conniving with Letters Patent Appeal No.161 of 2009 -14- **** others for illegal appointments. The manner in which the Board has defended the action of appointment of Respondent No.4 deserves no appreciation. Despite having the knowledge of pendency of criminal case and the serious nature of accusation, Respondent No.4 has been preferred for appointment to such a sensitive post. The trial of the criminal case is still going on. Keeping in view the pendency of criminal proceedings as also the nature of the accusation, the Board should have refrained from appointing Respondent No.4. But that has not happened. To the contrary, the Board is trying to defend its actions and the action of Respondent No.4 treating her as a member of its family. This Court cannot be a moot spectator to such an action particularly when it concerns larger public interest.” 25. How could a public servant, facing a prosecution and departmental proceedings as well, be held to be 'fit' to hold the office of the Secretary of the Board is beyond our imagination. We are particularly distressed at the turn of events in view of the fact that there were indeed other candidates available who were not facing either a criminal prosecution or any departmental action. That the appointing authority opted to appoint the appellant as against them is, by itself, is indicative of the extraneous character of the appointment. 26. We are in complete agreement with the learned Single Judge that this Court cannot be a mute spectator to an action of the impugned category, particularly when it concerns larger public interest. We further Letters Patent Appeal No.161 of 2009 -15- **** observe that the reliance placed by the learned Single Judge in that context upon Centre for Public Interest Litigation and another Vs. Union of India and another (2005) 8 Supreme Court Cases 2002 was appropriate. 27. No other point was argued. The impugned well reasoned order, proved to have been ordained by public interest, deserves affirmation and we hereby do so. The Letters Patent Appeal shall stand dismissed accordingly. (S.D.ANAND) JUDGE October 7 , 2009 (J.S.KHEHAR) Pka JUDGE