IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.11846 of 2011 (O&M) Date of Order: August 17, 2011 Salil Sabhlok …….Petitioner Versus Union of India and others ……..Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE PERMOD KOHLI HON’BLE MR. JUSTICE K. KANNAN 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: Shri D.S. Patwalia, Advocate and Shri Aalok Jagga, Advocate, for the petitioner. Dr. Anmol Rattan Sidhu, Asstt. Solicitor General of India with Shri S.S. Swaich, Advocate, for respondent No.1. Shri P.P. Rao, Senior Advocate, with Shri Sarvesh Bisaria, Advocate, and Shri V.K. Jindal, Additional Advocate General, Punjab, for respondent No.2. Shri Gurminder Singh, Advocate, for respondent No.3. Shri C.M. Munjal, Advocate, for respondent No.4. Shri H.S. Hooda, Advocate General, Haryana, with Shri Pradeep Singh Poonia, Addl. Advocate General Haryana & Shri Gagan Deep Singh Wasu, DAG, Haryana, for respondent No.5. Shri H.N. Mehtani, Advocate, for respondent No.6. Civil Writ Petition No.11846 of 2011 (O&M) [2] Hemant Gupta, J. I. The reference to the Full Bench – the subject that requires full- fledged consideration 1. The present writ petition has been placed before this Bench on a reference made by a Division Bench of this Court in respect of the issues arising out of appointment of respondent No.4 as Chairman of the Punjab Public Service Commission (for short referred to as `the Commission’). His appointment was challenged before a Division Bench of this Court just on the eve of the occasion for swearing-in ceremony. While ordering notice on the petition on July 13, 2011, the Court noticed the importance of the issues raised in the case and referred the matter observing, as follows: “6. Even though, Article 316 of the Constitution does not prescribe any particular procedure, having regard to the purpose and nature of appointment, it cannot be assumed that power of appointment need not be regulated by any procedure. It is undisputed that person to be appointed must have competence and integrity. Reference may be made to the judgments of the Hon’ble Supreme Court in R/o Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission, (2000)4 SCC 309, Ram Kumar Kashyap and another v. Union of India and another, AIR 2010 SC 1151 and In re Mehar Singh Saini, Chairman, HPSC and others, (2010)13 SCC 586. 7. If it is so, question is how such persons are to be identified and selected and whether in the present case, procedure adopted is valid and if not, effect thereof. We are of the view that these questions need to be considered by a Bench of three Hon’ble Judges. Accordingly, we refer the matter to a Bench of three Hon’ble Judges.” 2. Even before the case got underway through arguments, Mr. P.P. Rao, learned Senior Counsel, appearing on behalf of the State of Punjab, submitted that the questions of law as framed by the Civil Writ Petition No.11846 of 2011 (O&M) [3] Division Bench do not arise for consideration as such questions stand concluded by the judgments of Supreme Court. This Full Bench shall therefore return the reference without any more adjudication. He stated that the Division Bench has, even while making a reference to the Full Bench, observed that the irregularities and illegalities pointed out by the petitioner in the writ petition do not stand substantiated. Therefore, this Bench cannot frame new questions and the reference made by the Bench should be returned unanswered. Mr. Rao further sought to present at the threshold that the Public Interest Litigation challenging appointment of a person is not maintainable and that only an aggrieved candidate can challenge the appointment. We have maintained that the case required a full fledged discussion that cannot be short-circuited by a contention of non-maintainability of the reference as a preliminary point and urged the counsel to make their arguments on all the essential points brought out through their respective pleadings. II. Array of parties; Suo motu Impleadment of parties and particulars that were sought from them 3. After reference to Full Bench, on 19.7.2011, we suo motu directed the impleadment of the State of Haryana and Haryana Public Service Commission, as issues common in respect of the States of Punjab and Haryana, were likely to arise. Both the States and their Public Service Commissions were directed to furnish the following information:- “1. The number of posts filled up by respective Public Service Commissions in the last five years; 2. The number of posts which have been taken out of the purview of the Public Service Commission in the last five years; 3. Whether any regulations have been framed in respect of the appointment of the Members and Chairman of the Commission.” Civil Writ Petition No.11846 of 2011 (O&M) [4] III. Facts set forth in the writ petition that have given rise to the lis (a) The personal attributes necessary for the high constitutional post 4. The petitioner is an Advocate, practising before this Court and has filed the present petition as a public spirited person. It is, inter-alia, pleaded that the primary function of the Commission is to identify the most deserving candidates fit to be appointed to the Civil Posts through an identified procedure of selection. The recommendation of Commission is considered to be a final word in adjudging the merit of the candidates. The task of the Commission is important which requires expertise by qualified persons possessing outstanding capability and knowledgeable enough to identify deserving candidates for appointment. The backbone of the governmental functions depends upon its workforce and manpower, which is to be selected by the Commission. Keeping in view the critical, sensitive and the key function of the Commission, it is pleaded that it is very essential that Chairman and members of the Commission must possess outstanding and high degree of educational qualifications, brilliant and remarkable experience in the field of selection, administration and recruitment and also superior contribution in the field of education, which are the most desirable qualifications for appointment. Of utmost importance, above all, are qualities of thorough integrity and his ability to work impartially without any political influence or exertion. (b) Effect of lack of norms for the post; recent episodes betray unsavoury experiences 5. The petitioner has pointed out that the State Government has failed to frame any guidelines laying down the educational Civil Writ Petition No.11846 of 2011 (O&M) [5] qualifications, experience or even the procedure for selecting suitable candidates for appointment to the post of Chairman or member of the Commission. Reference has been made to recent incidents of corruption and mismanagement of the affairs of the Commission with the classic example of Mr. Ravi Pal Singh Sidhu. It has been pleaded that Mr. Sidhu after being appointed to the constitutional post of Chairman of the Commission, blatantly misused his position by carrying out recruitment to all classes of posts not by procedure of identification of merit, but by illegal gratification, which finds mention in the judgment of Inder Preet Singh Kahlon and others v. State of Punjab and others, (2006) 11 SCC 356. It is pleaded that after the aforesaid untoward instance, the State Government did not take a wakeup call to lay down educational and academic qualifications of outstanding nature and scout for talent among persons of high rectitude and integrity as yardsticks for appointment to the said constitutional post. (c) The personal attributes and political predilections make the choice of the 4th respondent unfit for the post 6. The petitioner cites newspaper reports as the source of information that the name of respondent No. 4 had been approved for his appointment of Chairman of the Commission upon the death of Mr. S.K. Sinha. It is pleaded that respondent No. 4 was an Advocate, at Ludhiana before he ventured into politics. He was elected as a member of the legislative assembly on the ticket of the present ruling party. He was in charge of the special Committee of Punjab Vidhan Sabha, which was constituted to probe the role of former Chief Minister of the State of Punjab. The report of the Special Committee headed by respondent No.4 was accepted, leading to expulsion of the Civil Writ Petition No.11846 of 2011 (O&M) [6] former Chief Minister from the State Legislature. The said expulsion has been set aside by the Supreme Court in the judgment reported as Amarinder Singh v. Special Committee, Punjab Vidhan Sabha, (2010) 6 SCC 113. It is also pointed out that in the year 1987, respondent No.4 as an attorney of his relatives moved an application to the Ludhiana Improvement Trust for allotment of plots under the Local Displaced Person Scheme. The allotment was found to be illegal and an FIR was registered against the said respondent. Subsequently, civil suit was filed claiming allotment, which was dismissed by the trial Court. Another criminal case was registered in respect of offence of rape, in which the said respondent managed to withdraw his name from the complaint. The petitioner also relied upon an order dated 15.11.2007, passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh, in a petition filed by Mr. Amit Misra, IFS, Divisional Forest Officer, Ropar. Mr. Amit Misra challenging his transfer on the ground of mala-fide attributed to respondent No.4. The Tribunal held that the transfer of the Officer was not due to any act of misdemeanour or complaints against him while functioning as DFO, Ropar and that the note recorded by respondent No.4 (respondent No 3 before CAT) gives away the state of mind in which he was after the incident of 22.6.2007 when he visited the aforesaid Rest House along with his family and was unable to use the same for the purpose of residence. Reliance was placed upon the following observation:- “12. Even though the Government decided not to allow use of the Rest house as a permanent residence of the Chief Parliamentary Secretary, yet the applicant, being a junior officer became the victim of the annoyance of respondent No.3 and with his political influence, the Forest Minister initiated the proposal for his transfer from Ropar, which was approved by the Chief Minister.” Civil Writ Petition No.11846 of 2011 (O&M) [7] After such observation, the Tribunal has set aside the transfer of Mr. Amit Misra. It is pointed out that such finding has attained finality. 7. It is pointed out by the petitioner that the qualifications, experience and credentials of respondent No.4 do not reveal any outstanding qualities or brilliance either in academic attainments or administration, except the stature that his political affiliation to the ruling party secures to him. A person, who is a sitting MLA of a political party cannot in any manner be impartial or detached so as to discharge functions as Chairman of the Commission. IV. Facts brought through pleadings of the respondents (a) Information brought through the Punjab Governments’ affidavits, pleadings; Admission of sorry state of affairs of PPSC’s functioning and the recurrent episodes of sidelining the Commission 8. An affidavit has been filed on behalf of the Government of Punjab and another by Punjab State Service Commission. They disclose the information that 3012 posts have been taken out of the purview of the Commission from 1.7.2007 till date. It means that such posts which were required to filled up by the Commission but the responsibility to fill such posts were not entrusted to it. The Commission has made recommendations in respect of 14 selections and of 628 posts. The Commission in its counter affidavit has stated that it is not contesting the relief sought by the petitioner in public interest and would also affirm the view of the desirability of selection of Chairman/Members of the Commission from amongst the persons with impeccable integrity and intellect. It is stated as under:- “5. That, however, due to certain considerations weighing with the successive State Governments, the confidence which is to be reposed in the Public Service Commission has been lacking. There has been exchange of correspondence Civil Writ Petition No.11846 of 2011 (O&M) [8] as also litigation in regard to the independence of the Commission at various stages. It would be pertinent to mention here that at one time the selections for the Punjab Civil Service (Executive Branch) (Class-I) were referred to the Union Public Service Commission, but it was only after the reference was declined that the posts were referred to the Punjab Public Service Commission for selection. So much so that the State Government also amended the Rule 2(b) of the Punjab Civil Service (Executive Branch) (Class-I) Rules, 1976 on 17.10.2007 whereby the definition of Commission was provided to include the Union Public Service Commission, when asked to serve the need of the State of Punjab.” It is also pleaded that no sufficient reasons have been given by the State Government for exclusion of posts from the purview of the Commission. Thus, the infrastructure of the Commission including the subject experts, examiners, members etc. is rendered redundant. It is also pointed out that in respect of 1206 posts of Medical Officers, which have already been advertised by the State Government, the Commission was not even forwarded a proposal for withdrawal of the posts from its purview. (b) Matters that are referred to the Commission, the details available through existing Regulations 9. Along with the reply, Annexure R.3/2 i.e. Regulations and Instructions Governing the Work of the Commission has been annexed. The Punjab State Public Service Commission (Limitation of Functions) Regulations, 1955, forms part of such compendium as Part II-B. Part II of the Said Regulations, contemplates that it shall not be necessary to consult the Commission on the suitability of candidates for initial appointment to Class III and Class IV services or posts and for initial appointments to services or posts enumerated in the Schedule `A’ thereto annexed. The said Regulations give few other Civil Writ Petition No.11846 of 2011 (O&M) [9] categories in respect of which the consultation with the Commission is not necessary. 10. Part III of the said compendium contains the Instructions issued by the Punjab Government from time to time. Such instructions contemplate procedure to be observed by the Departments of the Punjab Government in their dealings with the Commission. Part III-B thereof provides for procedure for exclusion of posts/services from the purview of the Commission. It contemplates that individual proposal for taking out posts from the purview of the Commission would be processed by the Administrative Department concerned. After the Department had taken a tentative decision to take out certain posts from the purview of the Commission, the Department would obtain the views/comments of the Commission by making a self contained reference to the Commission. It further provides that on receipt of the comments/views of the Commission, the matter would further be examined by the Department concerned keeping in view the comments/views so received and the advice of the Department of Personnel and Administrative Reforms and if the department comes to a definite conclusion that the posts in question must be taken out of the purview of the Commission, the Department would take the matter to the Council of Ministers incorporating the advice of the Department of Personnel and Administrative Reforms in the Memorandum to be placed before the Council of Ministers. It is, thereafter, a decision will be taken to amend the Punjab Public Service Commission (Limitation of Functions) Regulations, 1955. Reliance upon such instructions, it is contended that numerous posts have been taken out of the purview of Commission in violations of the instructions so issued. Civil Writ Petition No.11846 of 2011 (O&M) [10] (c) Statement in defence by the 4th respondent, his credentials 11. Respondent No.4 in his short affidavit has stated that he never applied for or asked for appointment of the Constitutional post in question. He was asked to submit his Bio-Data and the same having been done, the appointment was made. He has resigned from the membership of the State Assembly on 6.7.2011 and the same has been accepted by the Speaker of Punjab Vidhan Sabha. He has also surrendered his licence to practice as an Advocate and also has resigned from the posts of Vice-President of the Shiromani Akali Dal as also the President of the Legal Cell of the Shiromani Akali Dal, as well as from the Primary Membership of the party. It is also pointed out that he was duly elected by the electorate as a member of the legislative assembly and appointed the Chief Parliamentary Secretary of the Punjab Government. He has been a practicing Advocate with a good standing at the Bar since 1982 and continued in active practice till 2007 i.e. till his election to the State Legislative Assembly. The party on whose ticket, he was elected reposed faith in him to be the President of the Legal Cell of the Party, Vice-President of the Party itself and also its Spokesperson. It naturally shows that those at the helm of affairs as also the electorate had faith in his abilities in public life and therefore, appointed him to these positions. It is also pointed out that he remained elected President of the District Bar Association, Ludhiana, which is the largest Bar of the State for seven terms. He was also elected as a member of the Bar Council of Punjab and Haryana for three consecutive terms of five years and also remained Chairman of the Bar Council, Punjab and Haryana. He has attended all the 84 meetings of Punjab Vidhan Sabha with 100% attendance and participated in majority of debates. In respect of an FIR against the Chairman of the Improvement Trust, he has pointed out that he Civil Writ Petition No.11846 of 2011 (O&M) [11] was an attorney of his uncle Brij Bhushan Rai, who happened to be an NRI and in that capacity, he was named in the FIR. After thorough investigation, no challan was submitted against the said respondent or his relative. In respect of FIR for the offence of rape, he has pointed out that his name was not mentioned in the FIR nor found mention in the report submitted in the Court. He has stated that he never applied nor aspired for the post in question. Rather, he was invited and offered the same and consent was taken. (d) Affidavit of the Chief Secretary, Punjab – Bio data, the only material placed before the Governor for appointment 12. In a short affidavit filed by the Chief Secretary to Government of Punjab dated 8.8.2011, it has been stated that the material available on file regarding appointment of respondent No.4 as Chairman of the Commission is the bio-data of Mr. Dhanda and the certificate of resignation of the said respondent from the Legislative Assembly. It is stated in the affidavit that apart from the aforesaid two documents, the file contains the advice of the Chief Minister of Punjab to His Excellency the Governor of Punjab. The bio-data, a copy of which was produced, reads as under:- “- Harish Rai Dhanda son of Shri Kulbhshan Rai. - Resident: The Retreat, Ferozepur Road, Ludhiana. - Date of Birth: 15th May, 1960. - Attained Bachelor in Arts from SCD Government College, Ludhiana, Panjab University, 1979. - Attained Bachelor in Laws from Law College, Panjab University (1982). - Registered with Bar Council of Punjab and Haryana as Advocate in 1982. - Practiced Law at District Courts, Ludhiana from 1982 to 2007. - Elected as President of District Bar Association, Ludhiana for seven terms.” Civil Writ Petition No.11846 of 2011 (O&M) [12] The record further shows that respondent No.4 resigned from the membership of the Punjab Legislative Assembly on 6.7.2011, which was accepted on the same date and it was on 7.7.2011, notification appointing the said respondent as Chairman of the Commission was published. (e) Chief Secretary’s letter to UPSC: Admission of Punjab State Public Service Commission’s inefficacy and UPSC’s refusal 13. The learned Counsel for the State of Punjab has produced a copy of the communication addressed by the Chief Secretary of the Punjab Government on 22.6.2007 to the Secretary of the Union Public Service Commission to take up the assignment of filling of posts by the said Commission. The said letter reads as under:- “I am to inform you that the process of selection for appointment to the posts of Punjab Civil Service (Executive Branch) and Allied Group ‘A’ State services is prescribed in the Punjab Civil Services (Executive Branch) (Class-I) Rules, 1976. Selection for the posts is as per the joint merit prepared on the basis of a joint competitive examination of the eligible candidates. However, in the past we have come across instances of serious irregularities and malpractices in the process of such selections. Resultantly, people have practically lost their confidence in the fairness and impartiality of the selection process.(Emphasis Supplied) The State Government is seriously concerned to ensure induction of the best available talent in these premier State Civil Services through a fool-proof and transparent system of selections. With this end in view, the State Government has decided to approach the Union Public Service Commission to make selections for the Punjab Civil Service (Executive Branch) and Allied Services through a joint competitive examination. As you know under Article 315(4) of the Constitution the Union Public Service Commission is authorized to accede to such a request of the State Government with the approval of the President. Civil Writ Petition No.11846 of 2011 (O&M) [13] I shall be grateful if the Union Public Service Commission favorably considers the proposal of the State Government for conducting a joint competitive examination for selection to the Punjab Civil Service (Executive Branch) and Allied Services and agrees to the same.” 14. In response to the said communication, the Union Public Service Commission raised certain queries, which were responded by the State Government through its Chief Secretary on 22.10.2008, wherein it was mentioned as under:- “(c) It is universally accepted that the members of the Public Service Commissions should be eminent personalities in various fields and disciplines. They should be people of impeccable integrity and known for their impartiality and conduct. As already mentioned in my earlier letter, in the past there have been judicially proved instances of grave irregularities and mal-practices in the process of various selections which led to numerous litigations in the Hon’ble High Court and the Hon’ble Supreme Court. Consequently, there has been no competitive examination for recruitment to the Punjab Civil Service in the last about 7-8 years and as revealed in the Court cases a lot of refurbishing of the functioning of the Commission is required for conducting fair and unbiased selections. (Emphasis Supplied) The State Govt. is in dire need of PCS (Executive) Officers and Excise and Taxation Officers as these services provide the main functionaries in the field for the maintenance of Law and Order and for augmentation of the revenues of the State. It is because of the urgency of the matter and for inducting best available talent to such services that the State Govt. has made the reference to the Union Public Service Commission.” The request of the State Government to the Union Public Service Commission to take up the assignment of recruitment processes were declined on 18.2.2008. Civil Writ Petition No.11846 of 2011 (O&M) [14] (f) Affidavit on behalf of Haryana Govt: Details divulge HPSC’s difficulties 15. In the affidavit filled on behalf of the State of Haryana, it transpires that the Haryana Public Service Commission in the last five years has made recommendations in respect of 1323 posts. It also shows that vide notification dated 15.6.2005, Group B posts were taken out of the purview of the Commission and such Group B posts were again entrusted to the Commission only on 21.10.2008. It may be noticed that all the members and chairman of the Haryana Public Service Commission were suspended on 9.8.2008 and the strength of the Commission was increased. The posts, which were taken out of