IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No.7 of 2007 (O&M) Date of decision: 21.7.2009 Shri Rajiv Prashar -----Appellant Vs. Shri Naresh Dubey and others Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. Ashok Aggarwal, Senior Advocate with Mr. Mukul Aggarwal, Advocate and Mr. Anil Kshetarpal, Advocate for the appellants in LPA Nos.15, 16, 18 to 25 of 2007. Mr. R.D.Bawa, Advocate with Mr.Randhir Bawa and Samuel Gill, Advocate, for the appellants in LPA Nos. 7 to 10. Mr. Damandeep and Mr.R.Kartikeya, Advocates for the appellant in LPA No.17 of 2007. Mr. Rajiv Atma Ram, Sr. Advocate with Mr. Vikas Kuthiala, Advocate for respondents in LPA No.8, 12, 13, 15 and 18 of 2007. Mr. Arun Nehra, Advocate for respondents in LPA Nos.7,11, 16, 17,20 and 24 of 2007. Mr. Sanjeev Sharma, Advocate for respondents in LPA Nos.10, 16, 22, 23 and 25 of 2007. Mr. Avneesh Sharma, Advocate for respondent No.1 in LPA Nos.19, 21 and 27 of 2007. LPA No.7 of 2007 (O&M) Mr. Suvir Sehgal, Additional Advocate General, Punjab for the Respondent-State in LPA Nos.7 to 10, 15 to 27 of 2007 and for the appellant-State in LPA Nos.11 to 14 of 2007. Adarsh Kumar Goel,J. 1. This order will dispose of 21 Letters Patent Appeals being LPA Nos.7 to 27 of 2007, arising out of common judgment of learned Single Judge. LPA Nos.11 to 14 have been filed by the State of Punjab, as order of the learned Single Judge covered four writ petitions and the remaining 17 appeals have been filed by the affected candidates. 16 appeals are at the instance of four candidates, who have filed four appeals each, while one appeal is by three candidates. 2. Grievance of the writ petitioners was against appointment of appellants Rajiv Prashar, Amar Pal Singh, Viney Bublani, Mohinder Pal, Ms.Babita, Gurpreet Singh and Puneet Goyal (who are all wards 2 LPA No.7 of 2007 (O&M) of terrorists’ victims) as also against non- appointment of the writ petitioners to the posts of Punjab Civil Service (Executive Branch) [PCS(EB)]. 3. The writ petitioners applied for the posts of PCS(EB) in response to advertisement dated 19.6.1993. In the said advertisement, the vacancies notified in general category, were 7, 18 and 6 for PCS(EB), Excise and Taxation Officers and Assistant Employment Officers respectively. Names of the writ petitioners were beyond Sr.No.7 and, therefore, they did not figure in the list of first seven general candidates against vacancies in the PCS(EB). They were, however, given appointments as Excise and Taxation Officers. It was, inter-alia, submitted that if wards of victims of terrorists had not been appointed, the said vacancies would have been available in the general category to which the writ petitioners could make a claim. Case of the petitioners further was that 3 LPA No.7 of 2007 (O&M) their names should have been placed in Register ‘B’ and they should have been appointed against the available posts of PCS(EB). There was also challenge to the extent of reservation but the said issue does not arise in these appeals. 4. In the reply filed on behalf of the State, stand taken was that four posts were taken out of the purview of Public service Commission by amending the rules and against the said posts, appointments were given to the wards of the victims killed in militant violence. Later, three more posts were taken out of the purview of the Commission and the said posts were given to the wards of victims of terrorists, namely, Ms.Babita, Puneet Goel and Gurpreet Singh. The posts falling vacant after 1.1.1994 were taken into account for the next recruitment process and the writ petitioners could not have any claim on posts/vacancies falling vacant after 31.12.1993. 4 LPA No.7 of 2007 (O&M) Appointment of wards of terrorists victims was sought to be justified with reference to power of relaxation under Rule 28 of the Punjab Civil Services (Executive Branch) (Class I) Rules, 1976. Exclusion of posts from the purview of the Commission was in exercise of power under the Punjab Public Service Commission (Limitation of Functions) Regulations 1955. 5. In the replication, the writ petitioners gave particulars of the persons who retired after 1.1.1994 upto 30.6.1995 in support of their claim that vacancies were available within six months of the date of recommendations, which, as per government instructions dated 22.3.1957, could be filled up from selected candidates. 6. The learned Single Judge allowed the writ petitions. The Learned Single Judge formulated following questions for determination:- 5 LPA No.7 of 2007 (O&M) “(1) Whether the State was competent to take the posts of PCS (EB) out of the purview of the Commission thereby affecting the quota of direct recruits adversely and if so, whether the power to do so had been exercised in 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 PCS(EB)?” 7. On first question, it was held that the exclusion of the posts from the purview of the Commission was illegal. The Commission had 6 LPA No.7 of 2007 (O&M) opposed the said exclusion but the objection was rejected without any valid basis. The decision of the State was based on sympathy with the victims of terrorists’ violence, which could not be a valid ground to take the posts out of the purview of the Commission. The State could help the victims of the terrorists violence financially but could not take out the posts from the purview of the Commission. The Public appointments had to be given by open competition and could not be handed out as doles. 8. On second question, referring to the judgment of the Hon’ble Surpeme Court in Umesh Kumar Nagpal v. State of Haryana and others, (1994) 4 SCC 138, it was observed that compassionate appointments could be given only to tide over financial crisis and there was no vested right for appointments. Death in harness did not entitle a family member to source of livelihood and 7 LPA No.7 of 2007 (O&M) only Class III or Class IV posts could be given on compassionate grounds. Appointments could be only as per policy, while in the present case, appointments preceded the policy. Reference was also made to subsequent judgments of the Hon’ble Supreme Court in Punjab National Bank v. Ashwini Kumar Taneja, (2004) 7 SCC 265 and Union Bank of India and others v. M.T.Latheesh (2006) 7 SCC 350, to the same effect. 9. The grounds considered in the agenda of the meeting of the Council of Ministers dated 6.3.1993 were also referred to. The same are reproduced below:- “(1) In the case of Shri Rajiv Prashar In order to rehabilitate the family of Shri N.C.Prashar, former Sub Judge-cum-Judicial Magistrate, Jagraon, a written assurance was given to his son Shri Rajiv Prashar that his name would be considered for appointment to the Punjab Civil Service (Executive 8 LPA No.7 of 2007 (O&M) Branch) as and when he attains the minimum age for the purpose as prescribed in the Punjab Civil Service (Executive Branch) (Class-I) Rules, 1976. (2) In the case of Shri Amarpal Singh A request was received from the widow of Dr. Bachittar Singh, former Director Health and family Welfare that her elder son Amarpal Singh, presently employed as Veterinary Officer (Gazetted Class II) might be nominated for appointment to the Punjab Civil Service (Executive Branch). Since Shri Amarpal Singh is serving under the State Government as Veterinary Officer since 1987, that is, well before the demise of his father, he cannot be said to be dependent upon his father. However, in case Shri Amarpal Singh is elevated to the Punjab Civil Service (Executive Branch) as a matter of honour to late Dr.Bachitter Singh,it will add to the status of the bereaved family. (3) In case of Vinay Bublani In order to rehabilitate the bereaved family of late Shri Hari Om Bublani, a member of 9 LPA No.7 of 2007 (O&M) Punjab Civil Service, a written assurance was given that the State Government undertook to offer a post to his son Shri Vinay Bublani in the Punjab Civil Service (Executive Branch) as and when he completes his graduation. (4) In the case of Shri Mohinder Pal In order to rehabilitate his family, a written assurance was given to the widow of Shri Raj Pal Gupta, a member of Punjab Civil Service, former District Transport Officer, Sangrur that her son Shri Mohinder Pal would be offered a post in the Punjab Civil Service (Executive Branch) when he completed his post graduation, if he so applied. (5) In the case of Ms.Babita In order to rehabilitate the family of late Shri Gobind Ram, an IPS Officer, the Department of Home Affairs and Justice had proposed that his daughter, Miss Babita Bains, might be appointed to the Punjab and on consideration of his proposal, a written assurance was given to the family that she 10 LPA No.7 of 2007 (O&M) would be appointed to the Punjab Civil Service (Executive Branch) on attaining the requisite age and educational qualifications as prescribed in the Punjab Civil Service (Executive Branch) (Class I) Rules, 1976. (6) In the case of Shri Gurpeet Singh After the death of Shri Joginder Singh Khaira, Superintendent of Police (Headquarters), Ropar, his widow made a request to the State Government that her elder son, Shri Gurpreet Singh, might be appointed to the Punjab Civil Service (Executive Branch) and accordingly, a proposal for his appointment was made by the Department of Home Affairs and Justice and the Department of Personnel.” In the case of Shri Puneet Goyal, the Council of Ministers took decision on 21.2.1994 to appoint him in PCS(EB) on the basis of the meeting note of the same date prepared by the Chief Secretary. The 11 LPA No.7 of 2007 (O&M) reasoning given in the agenda for making such appointment reads as under:- “Before the formulation of the new policy for giving appointments on compassionate grounds, a number of dependents of the deceased government employees had been appointed to the Punjab Civil Service (Executive Branch), with the approval of the Council of Ministers. On the basis of the past precedents, it is proposed to appoint Shri Puneet Goyal son of late Doctor R.N.Goyal, former Civil Surgeon, Ludhiana to the post of PCS (EB), on compassionate grounds, in relaxation of the policy instructions dated 11th November, 1993, especially in view of the fact that formal decision to this effect was taken earlier vide CM’s order dated 31.7.1993 i.e., before the issuance of policy instructions dated 11.11.1993. 12 LPA No.7 of 2007 (O&M) As noticed above, all the cases of the above appointees emanated from the assurances given by the functionaries of the State without taking into account either the Rules or any of the relevant considerations.” 10. Question No.3 which was connected with Question Nos. 1 and 2, was also answered against the appellants. It was also observed that exercise of power of relaxation under Rule 28 was not valid as the same resulted in denial of equal opportunity. Reference was made to judgment of the Hon’ble Supreme Court in Principal, Mehar Chand Polytechnic and another v. Anu Lamba and others, (2006) 7 SCC 161. 11. As regards Question No.4, it was held that writ petitioners had a justifiable case for being considered for appointment to PCS(EB), in view of instructions of the Government dated 22.3.1957 and 13 LPA No.7 of 2007 (O&M) judgment of the Hon’ble Supreme Court in Virender Singh Hooda v. State of Haryana and others, AIR 1999 SC 1701. 12. We have heard learned counsel for the parties and perused the record. 13. Contentions raised on behalf of the State and the affected candidates are that appointments of the said candidates could not be treated as ‘compassionate appointments’ simplicitor. Even though, there may be element of compassion also involved, these appointments constituted a separate class of victims of extra ordinary situation of terrorism prevailing in Punjab at the relevant time. For this purpose, the power of relaxation could be validly used. Reliance in this regard has been placed on judgments of the Hon’ble Supreme Court in Smt.Kamla Gaind v. State of Punjab and others, 1990(Supp) SCC 800, Sandeep Kumar Sharma v. 14 LPA No.7 of 2007 (O&M) State of Punjab and others, (1997) 10 SCC 298, M.P.Oil Extraction and another v. State of MP and others, (1997) 7 SCC 592, Arun Kumar and others v. Union of India and others, (2007) 5 SCC 580, Paras 7 and 11 and DB judgments of this Court in Purshottam Singh v. State of Punjab and others, 1998(3) RSJ 290, paras 28 to 30 and Mohinder Singh Chahal v. Union of India and others, 2006(6) SLR 683. It was further submitted that in exercise of executive power, it was open to the State to take a decision even without a rule or policy when the extra ordinary situation so warranted. Reliance has been placed on judgments of the Hon’ble Supreme Court in Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab, AIR 1955 SC 549 and B.N.Nagarajan and others v. State of Mysore and others, AIR 1966 SC 1942. 15 LPA No.7 of 2007 (O&M) Learned counsel for the State pointed out that the instructions dated 22.3.1957 did not confer any right of appointment. The appellants had no right over the posts falling vacant after 31.12.1993 and the State accounted for the said posts in the next recruitment process for which examination was held in the year 1998. The respondents could not insist that vacancies which were not included in the advertisement should be made available for them. 14. Learned counsel for the contesting respondents – writ petitioners supported the findings recorded in the judgment of learned Single Judge. He submitted that judgments relied upon on behalf of the appellants were distinguishable. The policy of so called extra ordinary situation came into force for the first time only on 11.11.1993 which was published in the Government Gazette on 22.11.1993, while the appointment of four of the appellants was much 16 LPA No.7 of 2007 (O&M) earlier when there was no other instructions, though the matter may have been considered by the Council of Ministers on 6.3.1993. Reliance has also been placed on judgment of the Hon’ble Supreme Court in National Institute of Technology and Ors. v. Niraj Kumar Singh, AIR 2007 SC 1155, para 14, to submit that in absence of a scheme, there could not be any compassionate appointment. It was also submitted that power of relaxation could not be exercised arbitrarily so as to nullify the rules, as held in General Manager, State Bank of India and others v. Anju Jain, (2008) 8 SCC 475, paras 31 to 34, State of Orissa and others v. Sukanti Mohapatra and others, 1993(2) SCC 486, paras 3 to 5 and R. N. Nanjundappa, v. T. Thimmaiah and another, AIR 1972 SC 1767. It was further submitted that since vacancies were available, the 17 LPA No.7 of 2007 (O&M) respondents were entitled to be considered. Reliance in this regard has been placed on judgments of the Hon’ble Supreme Court in Miss Neelima Shangla, v. State of Haryana and others, AIR 1987 SC 169, Malik Mazhar Sultan and another v. UP Public Service Commission and others, (2006) 9 SCC 507 and Virender Singh Hooda and others v. State of Haryana and another, (1999) 3 SCC 696. 15. Thus, two questions arise for consideration:- (i) Whether learned Single Judge was justified in directing consideration of the writ petitioners against vacancies beyond those mentioned in the advertisement dated 19.6.1993? (Question No.4 in the impugned judgment). (ii) Whether learned Single Judge was justified in quashing the decision to take posts out of the purview of the Commission for appointing wards of 18 LPA No.7 of 2007 (O&M) terrorists’ victims and also quashing their appointments to Class I posts? (Question Nos.1 to 3 in the impugned judgment). Re: (i) 16. It is undisputed that general vacancies advertised for the PCS(EB) in advertisement dated 19.6.1993 are only 7 and all the said vacancies were duly filled up after considering the writ petitioners. No person lower in merit to the writ petitioners was appointed in the said selection process. It is well- settled that filling up of vacancies over and above the vacancies advertised is violative of fundamental rights under Articles 14 and 16 of the Constitution. In State of UP v. Rajkumar Sharma, (2006) 3 SCC 330, paras 13 and 14, it was observed:- “13. Filling up of vacancies over and above the number of vacancies advertised would be violative of the 19 LPA No.7 of 2007 (O&M) 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 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 Kuamr Sharma v. Yogesh Kumar Gupta, AIR 1998 SC 1021). 14. Selectees cannot claim the appointment as a matter of right. Mere inclusion of candidate’s name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the candidates concerned cannot claim that they have been given a hostile discrimination. (See Shankarsan Dash v. Union of India AIR 1991 SC 1612; Asha Kaul v. State of J&K (1993) 2 SCC 573; Union of India v. S.S. Uppal AIR 20 LPA No.7 of 2007 (O&M) 1996 SC 2340; Hanuman Prasad v. Union of India (1996)10 SCC 742; Bihar Public Service Commission v. State of Bihar (1997) 3 SCC 198: AIR 1997 SC 2280; Syndicate Bank v. Shankar Paul AIR 1997 SC 3091, Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra (1997) 10 SCC 264; Punjab SEB v. Seema 1999 SCC (L&S) 629; All India SC & ST Employees’ Assn. v. A. Arthur Jeen AIR 2001 SC 1851; Vinodan T. v. University of Calicut (2002) 4 SCC 726; S. Renuka v. State of A.P. AIR 2002 SC 1523 and Batiarani Gramiya Bank v. Pallab Kumar AIR 2003 SC 4248.)” 17. No doubt, a slightly different view was taken in Virender Singh Hooda v. State of Haryana and others, (1999) 3 SCC 696 (supra) but in Virender Singh Hooda and others v. State of Haryana and others, (2004) 12 SCC 588, Amendment Act with retrospective effect laying down that no candidate can claim a right to appointment beyond the number of advertised posts, was upheld, inter-alia, by noticing 21 LPA No.7 of 2007 (O&M) the stand of the State that the amendment was made to bring the situation in consonance of Articles 14 and 16 (Para 40). 18. As regards Malik Mazhar Sultan (supra), laying down manner of filling up of the posts of the Judicial Service, the said judgment could not be held to be laying down that any candidate had a right to seek appointment beyond advertised posts. 19. The judgment in Miss Neelima Shangla (supra) is distinguishable and was on facts of its own case, as held in later judgment in Shankarsan Dash, v. Union of India, AIR 1991 SC 1612, para 8 in following terms:- “8….It is true that the claim of the petitioner in the case of Miss Neelima Shangla v. State of Haryana, (AIR 1987 SC 169) was allowed by this Court but not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the 22 LPA No.7 of 2007 (O&M) matter had been referred to the Public Service Commission which sent to the Government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The Government accordingly made only 17 appointments and stated before the Court that they were unable to select and appoint more candidates as the commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and there must be a conscious application of mind by the Government and the High Court before the number of persons selected for appointment is restricted. 23 LPA No.7 of 2007 (O&M) The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant.” The learned Single Judge has given the impugned direction mainly by referring to instructions dated 22.3.1957 and judgment of the Hon’ble Supreme Court in Virender Singh Hooda (supra). The instructions are only enabling and do not confer any right of consideration against the vacancies if a valid decision is taken by the State not to go beyond the advertised vacancies. The petitioners had already been considered against the advertised posts and no person junior to them was considered for the vacancies which may have subsequently arisen. The claim of the writ petitioners was to include their names in Register ‘B’. 24 LPA No.7 of 2007 (O&M) Entry in Register ‘B’ is to be made as per Rule 8. Register ‘B’ is to include names of persons accepted as candidates as a result of main competitive examination. This is also clear from Rule 14. The names are to be entered in the order of merit. It is not the case of the writ petitioners that anyone lower in merit was placed higher to them. Thus, irrespective of the question whether names were to be entered in the register, the fact remains that the notified vacancies were filled up without disturbing the order of merit of selections being made. In such a situation, no right accrued in favour of the writ petitioners to be appointed to the PCS(EB). 20. We, thus, reverse the view taken by the learned Single Judge for a direction in favour of the writ petitioners for being considered for the posts of PCS(EB). 25 LPA No.7 of 2007 (O&M) 21. Question No.(i) is, accordingly answered in favour of the appellants. Re: (ii) 22. It is not disputed that the appellants are factually the wards of victims of terrorists who were Class I officers in the State of Punjab and a policy dated 11.11.1993 was introduced, which provides for wards of Class I officers dying on account of terrorists violence or dying in harness being given appointments on priority basis to Class III or class IV posts or even to higher posts on account of their higher qualifications such as Engineering, Medicine, Veterinary Science, Agricultural Science, Law and other professional degrees and Doctorates in Art and Science and also provides that posts of Class I or Class II may be taken out of the purview of the Public Service Commission. In the written statement of Rajiv Prashar, it is mentioned that his father was 26 LPA No.7 of 2007 (O&M) working as Sub Judge, Ist Class and was gunned down by the terrorists on 3.12.1990. It has also been mentioned that Ms.Babita was daughter of Gobind Ram who was PAP Commandant and was killed in bomb blast in his office in January 1990. Hari Om Bublani was shot in his office on April 9, 1990. In the reply of respondent No.4, Dr. Bachittar Singh, father of Amar Pal Singh was shot dead by terrorists on 26.10.1991 when he was discharging