IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) C.W.P.No.3753 of 1995 Harjeet Kaur. .............. Petitioner. Versus The State of Punjab and others. ........... Respondents (2) C.W.P.No.6299 of 1999 Naresh Dubey .............. Petitioner. Versus The State of Punjab and others. ........... Respondents (3) C.W.P.No.8365 of 1995 Shri Harpinder Pal Singh. .............. Petitioner. Versus The State of Punjab and others. ........... Respondents C.W.P.No.3753 of 1995 -2- ..... (4) C.W.P. No. 11265 of 1995 Dr.Harish Malhotra. .............. Petitioner. Versus State of Punjab and others. ........... Respondents Date of Decision: 8.11.2006 CORAM: Hon'ble Mr.Justice Mahesh Grover .... Present : Shri Rajiv Atma Ram, Senior Advocate with Ms.Manjari Nehru, Sarv Shri Arun Nehra, D.D.Gupta, N.K.Banka Advocates for the petitioners. Shri A.G.Masih, Senior Deputy Advocate General, Punjab with Shri A.S.Ramgarh, Deputy Advocate General, Punjab for respondent nos. 1 and 2 in all the petitions. Shri H.S.Mattewal, Senior Advocate with Shri Deepak Sibal, Advocate for respondent nos. 3 to 5 in all the petitions. Shri D.V.Gupta, Advocate for respondent no.6 in all the petitions. Shri Sanjiv Bansal, Advocate for respondent nos. 7 to 9 in C.W.P.No.6299 of 1995. .... Mahesh Grover,J. This judgment shall dispose of all the above mentioned writ C.W.P.No.3753 of 1995 -3- ..... petitions as common questions of law and facts are involved therein. The petitioners have invoked the jurisdiction of this Court under Article 226/ 227 of the Constitution of India for issuance of a writ of mandamus directing respondent nos. 1 and 2 to place their names in Register `B' maintained under the provisions of the Punjab Civil Services (Executive Branch) (Class-I) Rules, 1976 (hereinafter described as `the Rules') in order of the merit determined by the Punjab Public Service Commission (for short, `the Commission') for appointment to the Punjab Civil Service (Executive Branch) [for brevity, referred to hereafter as `P.C.S.(E.B.)] and appoint them accordingly. They have also prayed for quashing of appointments of the private respondents to P.C.S. (E.B.) being contrary to the Rules. In C.W.P.No.3753 of 1995, petitioner-Harjeet Kaur has additionally prayed for issuance of a writ of quo warranto for quashing of the appointment of respondent nos. 3 to 6 therein, i.e., Rajiv Prashar, Amarpal Singh, Vinay Bublani and Mohinder Pal. Adverting to the facts briefly as set out by the petitioners and the respective respondents in their pleadings, it transpires that about 22 vacancies in the cadre of P.C.S.(E.B.) fell vacant which were required to be filled up by way of direct recruitment in accordance with Rules 12,13 and 14 of the Rules. However, requisition dated 4.6.1993 was sent by the State Government to the Commission for filling up of only 18 posts. Since the petitioners have based their claim on Rules 12, 13 and 14 of the Rules, the same are reproduced below:- “12. (1) A competitive examination, hereinafter called “the C.W.P.No.3753 of 1995 -4- ..... examination”, the regulations of which are contained in the Appendix II to these rules, shall be held at any place in the State of Punjab as and when notified by the Government through the Commission for the purpose of selection by competition of as many candidates for the Service as Government may determine. (2)Notice of the date fixed for the examination shall be published in the Punjab Government Gazette. 13.(1) Applications for permission to sit in the examination will be called by the Commission and shall be made in the manner and form prescribed, and accompanied by such documents or papers as may be required by the Commission in this behalf. (2) No person shall be allowed to appear in the examination-- (a) who has not attained the age of twenty-one years or who will have attained the age of twenty-seven years or who is beyond such other age limits as may be prescribed by Government from time to time, for entry into Service under the State, on or before the first day of January immediately preceding the last date appointed by the Commission for the submission of applications: Provided that in the case of a candidate who belongs to Scheduled Castes or Backward Classes the upper age limit shall be such as many, from time to time, be fixed by the C.W.P.No.3753 of 1995 -5- ..... Government in respect of entry into Service under the State of persons belonging to such castes or classes; (b) who does not possess at least a bachelor's degree of a recognised University in Arts, Science or Commerce; and © who does not by the closing date of receipt of applications to be notified by the Commission, send a treasury receipt or crossed Postal Order on account of a non-refundable examination fee as fixed by the Commission: Provided that a Government servant holding a ministerial appointment under the Punjab Government including Courts, who has not less than four years' continuous service under the Government on the first day of January immediately preceding the last date appointed by the Commission for the submission of applications shall be eligible to appear in the examination if he possesses at least a bachelor's degree of a recognised University in Arts, Science or Commerce and has not attained the age of 38 years subject to the condition that he has not availed of three chances in addition to those which he might have already availed of in any other capacity. Note.- Any person who is eligible as Government servant under this rule and wishes to appear in the examination, shall submit his application in the prescribed form through the Head of his Office, to the Secretary to the Commission. 14. Subject to the provisions of rule 13, Government shall C.W.P.No.3753 of 1995 -6- ..... include in Register `B' in order of merit determined by the Commission, the names of such number of candidates as it may, from time to time, determined, from amongst those who have been declared as qualified in the examination by the Commission.” Rules 8 and 18 of the Rules which provide for maintaining various registers of the accepted candidates, as also determining the quota for filling up the posts from amongst the candidates whose names are entered in those registers, are also extracted below:- “8. The following Registers of accepted candidates shall be maintained by the Chief Secretary to Government, Punjab, namely:- (1)Register A-I in which shall be entered the names of Tehsildars and Naib-Tehsildars accepted as candidates; (2) Register A-II in which shall be entered the names of temporary members of Class II and members of Class III Services serving in connection with the affairs of the State of Punjab and holding ministerial appointments accepted as candidates; (3) Register A-III in which shall be entered the4 names of persons accepted as candidates from amongst Excise and Taxation Officers, Block Development and Panchayat Officers and District Development and Panchayat Officers serving in connection with the affairs of the State of Punjab; C.W.P.No.3753 of 1995 -7- ..... (4) Register B in which shall be entered the names of persons accepted as candidates as a result of competitive examination; and (5) Register C in which shall be entered the names of persons accepted as candidates from amongst officers or officials serving in connection with the affairs of the State of Punjab, who are not covered by any of the categories of officers or officials hereinbefore mentioned in this rule. 18. The Government shall make appointments to the Service in pursuance of rule 7 from amongst the candidates entered on the various Registers in a slab of 100 vacancies as follows:- (i) the first vacancy and thereafter every alternative vacancy shall be filled from amongst candidates borne on Register `B'. (ii) the 2nd, 8th, 14th, 20th, 26th, 32nd, 38th, 44th 50th, 56th, 62nd, 68th, 74th, 80th, 86th, 92nd, 96th and 100th vacancy shall be filled from amongst the candidates borne on Register A-I; (iii) the 4th, 10th, 16th, 22nd, 28th, 34th, 40th, 46th, 52nd, 58th, 64th, 70th, 76th, 82nd, 88th and 98th vacancy shall be filled from amongst candidates borne on Register A-II. (iv) the 12th, 30th, 42nd, 54th, 66th, 78th and 90th vacancy shall be filled from amongst the Excise and Taxation Officers accepted as candidates on Register A-III; (v) the 18th, 36th, 60th and 84th vacancy shall be filled from amongst the District Development and Panchayat Officers or Block Development and Panchayat Officers accepted as C.W.P.No.3753 of 1995 -8- ..... candidates on Register A-III; and (vi) the 6th, 24th, 48th, 72nd and 94th vacancy shall be filled from amongst the candidates on Register `C'. The petitioners have pleaded that as per the provisions of the Rules, quoted hereinabove, the quota of direct recruits is 50%, meaning thereby out of 22 vacancies, the quota for direct recruits should have been `11'. Four posts, according to them, were illegally taken out from the purview of the Commission and filled up on compassionate grounds by appointing Shri Rajiv Prashar, Shri Amarpal Singh, Shri Viney Bublani and Shri Mohinder Pal. They have pleaded that if 18 posts were advertised, then 9 posts fell to the share of the direct recruits. The reason for advertising only 18 posts, as given by the official respondents, was that although 6 posts were taken out of the purview of the Commission as per the decision taken by the Council of Ministers on 6.3.1993 for giving appointments to Sarv Shri Rajiv Prashar, Amarpal Singh, Viney Bublani, Mohinder Pal, Ms. Babita and Gurpreet Singh Khehra (Perhaps his name has been wrongly mentioned as Gurpal Singh – respondent no.8 in C.W.P.No.6299 of 1999) on compassionate grounds being wards of those killed in terrorists' violence in the State, yet, only Shri Rajiv Prashar, Shri Amarpal Singh, Shri Viney Bublani and Shri Mohinder Pal were adjusted against four posts belonging to general category, thereby reducing the number of posts of that category to `7'. According to the official respondents, one more post was also taken out of the purview of the Commission subsequently as per the decision dated 21.2.1994 of the Council of Ministers. For this, the Punjab Public C.W.P.No.3753 of 1995 -9- ..... Service Commission (Limitation of Functions) Regulations,1955 were accordingly amended. After filling up four posts in the manner aforesaid, three more posts were taken out from the purview of the Commission by different decisions (dated 6.3.1993 and 21.2.1994) and filled up again on compassionate grounds against the vacancies which arose within six months of the selection made pursuant to the advertisement dated 19.6.1993. Thus, Sarv Shri Rajiv Prasher, Amarpal Singh, Viney Bublani, Mohinder Pal, Ms. Babita, Gurpreet Singh Khehra and Puneet Goyal (private respondents in the writ petitions), who are said to be the wards of the victims of the terrorists' violence in the State, were given appointments on compassionate grounds on all the seven posts taken out of the purview of the Commission reckoning them towards direct recruitment quota of general category. The grievance of the petitioners is that the aforementioned posts have been wrongly given to the wards of the victims of the terrorists' violence because the only mode as given in the Rules for direct recruitment is by way of open competition coupled with other prescribed modes of nomination and promotions and the names of such persons are to be placed in Register `B' to be absorbed in P.C.S.(E.B.). Apart from this, they have averred that there are in force the government instructions dated 22.3.1957 under which the vacancies which occur within six months from the date of making of the recommendations were to be filled up from the merit list as prepared by the Commission which includes the waiting list after entering the names of such persons in Register `B' as per the Rules. In the instant case, the advertisement dated 19.6.1993 for filling C.W.P.No.3753 of 1995 -10- ..... up of seven posts of direct recruitment quota was issued and the results of the selection were made open on 7.11.1994. Petitioners – Naresh Dubey, Harpinder Pal Singh, Harjeet Kaur and Dr. Harish Malhotra, who applied for and appeared in the competitive examination held by the Commission, were placed at Sr. Nos. 8, 9, 10 and 11 respectively in the merit list of general category candidates. However, they were neither appointed nor were their names recommended for being entered in Register `B' because the advertised vacancies of the general category were only `7'. The petitioners have pleaded that the decision of the Council of Ministers to take seven posts of direct recruits quota out of the purview of the Commission and offering the same to the private respondents created a reservation in their favour which is arbitrary and against the dictum of the Supreme Court in Indra Sawhney etc. etc. Versus Union of India and others etc.etc., AIR 1993 S.C. 477 because the reservation of the posts has increased to more than 50% as against the quota of direct recruits in one recruitment year. They have further pleaded that appointments of the persons other than the candidates borne on the select list and the waiting list prepared by the Commission in pursuance to advertisement dated 19.6.1993 on the posts which fell vacant within six months thereof were contrary to the government instructions dated 22.3.1957 and are, therefore, liable to be quashed. The petitioners have contended that they being on the merit list at Sr. Nos. 8 to 11 are entitled to be appointed on the consequential vacancies. The official respondents have not disputed the factual aspect of the matter and the only plea taken up is that the Council of Ministers had C.W.P.No.3753 of 1995 -11- ..... taken a conscious decision on 6.3.1993 to take six posts of P.C.S.(E.B.) out of the purview of the Commission for being offered to the wards of those officers, who were killed in the terrorists' violence in the State. They have pleaded that after taking out of one more post from the purview of the Commission as per the decision dated 21.2.1994 of the Council of Ministers, the private respondents were given appointments on compassionate grounds in recognition of the services rendered by their parents in extremely difficult conditions prevailing in the State at the relevant time and in accordance with the government instructions dated 11.11.1993. Besides, the official respondents have questioned the right of the petitioners to challenge the appointments of the private respondents on the ground that they were fully aware of the decision of the State Government and since only seven posts had been advertised, they could confine themselves only to that extent. The private respondents have filed separate written statements and justified their inclusion in P.C.S.(E.B.) as direct recruits on the ground that their parents had suffered at the hands of the terrorists during the turbulent period in the State. The questions that arise for determination in the back-drop of the above facts are :- (1)Whether the State was competent to take the posts of P.C.S. (E.B.) out of the purview of the Commission thereby effecting the quota of direct recruits adversely and if so, whether the power to do so had been exercised in C.W.P.No.3753 of 1995 -12- ..... accordance with the Rules? (2) Whether the appointments of the private respondents on compassionate grounds was in accordance with the Rules and justified keeping in view the relevant instructions and the dictum of the Apex Court? (3) Whether the appointments of the private respondents are justifiable or not? (4) Whether the petitioners have a justifiable case for being considered for appointment to P.C.S.(E.B.)? Shri Rajiv Atma Ram, learned Senior Advocate appearing for the petitioners argued that even though, the State Government has the power to relax the Rules under Rule 28, yet, that power, in the instant case, was not exercised and the decision to take the posts out of the purview of the Commission was arbitrary. He contended that the only mode recognised for selection to the P.C.S.(E.B.) is provided under Rules 12 to 14 and 18 of the Rules in accordance to which the State Government is required to maintain various registers including Register `B' (for appointment by direct recruitment). Learned counsel urged that no other mode is prescribed for appointment to P.C.S.(E.B.) and hence, not recognised in the eyes of law. He argued that the appointments of the private respondents was in complete disregard to the dictum of the Supreme Court in Umesh Kumar Nagpal Versus State of Haryana and others, (1994) 4 S.C.C. 138. He further argued that the appointments on compassionate grounds given to the private respondents were not governed by any instructions and even the instructions C.W.P.No.3753 of 1995 -13- ..... which are sought to be relied upon by the official respondents were not in existence when these appointments were made. Shri Atma Ram contended that even if, it is assumed that the instructions in question held the field, even then, the same could not apply in the instant case, as their benefit could only be extended to the dependents of the deceased employees and not to the dependents of the officers, who were drawing pay scale of Rs.2200-4000/- or above. On the other hand, Shri A.G.Masih, learned Senior Deputy Advocate General, Punjab; Shri H.S.Mattewal, Senior Advocate assisted by Shri Deepak Sibal, Advocate; Shri Sanjiv Bansal and Shri D.V.Gupta, learned counsel for the respondents contended that in view of the fact that the State was passing through turbulent times, it was a unique measure to recognise the services of the officers, who served the State when the entire government machinery was tottering on collapse and, therefore, the petitioners have no right to challenge the appointments given to the private respondents on compassionate grounds. Learned counsel further urged that the State Government had taken a conscious decision to take the vacant posts of P.C.S.(E.B.) out of the purview of the Commission for being offered to the private respondents. They have also contended that the petitioners have not placed the appointment letters of the private respondents on record and so, the same may not be quashed, more so, because these respondents have been serving the State diligently for the last 12 to 13 years and it would be extremely harsh upon them if their appointments are now questioned. Reliance has been placed on a Division C.W.P.No.3753 of 1995 -14- ..... Bench judgment of this Court in Parshotam Singh Versus State of Punjab and others, 1998(3) R.S.J. 290, with specific emphasis on paragraphs 25, 28, 29 and 31 thereof. I have thoughtfully considered the respective submissions and have perused the relevant record which was summoned during the course of hearing with the assistance of learned Senior Deputy Advocate General, Punjab. Undisputedly, a conjoint reading of the Rules reveals that the appointment to the posts of P.C.S.(E.B.) falling to the share of the direct recruits has to be made on the basis of the competitive examination. There is no other mode prescribed nor acceptable. An open competitive examination has been the most acceptable mode for determining the inter se merit of the aspirants. Under the Rules, after the open competition, all the successful candidates are entitled to have their names entered in Register `B' in order of the merit assigned by the Commission. The selection to posts in the Services, like P.C.S.(E.B.) has to be on the strength of merit only to maintain an effective Public Service. “Baptism by fire” has no equal. Any other mode which deviates from the modes prescribed by the statutory rules implies not only depriving and restricting the claims of hopeful desirables, but also results in lesser than acceptable merit; as considerations alien to merit would form the basis for selection. In the instant case, appointments of the private respondents on compassionate grounds were given on the following dates :- C.W.P.No.3753 of 1995 -15- ..... 1. Shri Rajiv Parashar - 28.5.1993 2. Shri Amarpal Singh - 28.5.1993 3. Shri Vinay Bublani - 28.5.1993 4. Shri Mohinder Pal- 16.6.1993 5. Ms.Babita - 24.1.1994/4.2.1994 6. Shri Puneet Goyal - 8.7.1994 7. Shri Gurpreet Singh Khehra- 29.4.1994 For the first time, the instructions for appointment on compassionate grounds were issued by the State Government on 11.11.1993, which were published in the official gazette on 22.11.1993. The relevant extracts of these instructions are reproduced below:- “3. Government has received representations from the dependent members of Class-I and Class-II officers,who have been killed in service for giving them appointments against PCS (Executive Branch) posts or other Class-I/ Class-II posts on priority basis keeping in view their socio-economic background. 4. Government have, therefore, been considering the whole matter afresh with the view to laying down a firm policy, so that all such cases are dealt with uniformly. After thorough consideration of the matter, Government have now decided that the dependent members of the families of the Government employees/ officers (including All India Service Officers), who are killed in terrorist violence or who C.W.P.No.3753 of 1995 -16- ..... die in harness, while in service, may be given Government employment on priority basis as laid down in para 5 below. 5. All Government employees may be categorised into three categories as under on the basis of their pay scales for the purpose of officering Governing employment on compassionate grounds to the dependent members of the families of the Government employees,who are killed in terrorist violence or who die in harness, while in service:- (i) Government employees placed in the scales of pay of Rs.5900-6700, and above; (ii) Government employees placed in the scales of pay of Rs.2200-4000 and below the scale of pay of Rs.5900-6700; (iii) Government employees placed in the scales of pay below the scale of pay of Rs.2200-4000. NOTE:- The word `placed' means appointed regularly or promoted to posts having these pay scales. Dependent family members of deceased Government employees falling in category No.(i) above may be offered appointments against Class-II posts of direct recruitment quota. Dependent family members of the deceased Government employees falling in Category No.(iii) above, may be offered appointments against Class-IV posts of direct recruitment quota. Dependent members of the families of the deceased C.W.P.No.3753 of 1995 -17- ..... Government employees falling in category No.(ii) & (iii) above, who are eligible for appointment on priority basis, may be offered appointments against posts of higher category than the category of posts for which they are entitled to, provided they possess higher professional qualifications like graduation in Engineering, Medicine, Veterinary Science, Agricultural Science, Law and other equivalent professional degrees and Doctorates in Art and Science,i.e. They may be offered appointments against posts for which the above professional qualifications are prescribed, and they possess the same. 6. Such Class-I and Class-II posts may be deemed to have been taken out of the purview of the Punjab Public Service Commission, which are offered on compassionate ground under this policy. Necessary suitable amendments under Schedule `A' of the regulations and instructions governing the work of the Punjab Public Service Commission is being done separately.” Thus, the appointments of four of the private respondents, namely, Rajiv Prashar, Amarpal Singh, Vinay Bublani and Mohinder Pal were admittedly made before coming into force of the above mentioned instructions and as such, the plea of the official respondents that these appointments were governed by the government instructions was not tenable. The appointments in favour of other three private respondents, namely, Ms.Babita, Shri Puneet Goyal and Shri Gurpreet Singh Khehra were made after the decision in Umesh Kumar Nagpal's case (supra) and C.W.P.No.3753 of 1995 -18- ..... were, therefore, straightway hit by the observations of the Supreme Court. The attempt made by the respondents to say that three appointments were made prior to the judgment of Umesh Kumar Nagpal's case and hence, protected, is not tenable. A Division Bench of this Court decided this matter on 18.12.1992.The Petition for Special Leave to Appeal filed against the aforesaid decision was dismissed by the Supreme Court on 4.5.1994. Thus, the appointment of all three persons were made when the Division Bench judgment held the field and at least, one appointment was made after the judgment of the Supreme Court. The principle governing the appointment on compassionate grounds is to enable the family of the deceased employee to