IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No. 3070 of 1992 (O&M) Date of decision: July 22, 2011 Khem Karan Goyal .. Petitioner Vs. State of Punjab and another .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sudeep Mahajan, Advocate for the petitioner. Mr. Amit Chaudhary, AAG, Punjab for the respondents. A.N. Jindal, J The petitioner, presently a Judicial Officer, having passed the Punjab Civil Services examination in the year 1991 has sought invocation of Article 226 of the Constitution of India for issuing writ of mandamus directing the respondents to fill up the unfilled vacancies of the year 1989 which remained unfilled and remained vacant by considering the petitioner as passed the Punjab Civil Services Examination in the year 1989-90. The respondent No.2 had issued an advertisement published in 'The Tribune' on July 22, 1989 inviting applications for competitive examination for recruitment of 33 posts of Punjab Civil Services (Judicial Branch) to be held in December, 1989. Out of 33 posts, 17 belonged to general category and out of 16, 9 were reserved for the Scheduled Caste of Punjab (4 for Balmiki/Majhibi Sikhs, if available), 2 for Backward classes of Punjab and 5 for Ex-servicemen. The petitioner having applied for one of the posts appeared in examination as held in 1989 having qualified for the examination, by securing 450 marks i.e. 50% in the written paper, was called for the interview. Before the Selection Committee consisting of five members i.e. Chairman of the Commission, two members of the Commission, an Hon'ble Judge of the Punjab & Haryana High Court and head of the Department of Law of Punjabi University. The rule prevailing at that time for making a candidate eligible for the interview was that he must have obtained at least 45% marks in aggregate in all written papers. The Rule further envisaged that no candidate shall be considered to have Civil Writ Petition No. 3070 of 1992 -2- *** qualified in the examination unless he obtains 55% marks in aggregate of all the papers including viva voce test. Due to this prevalent rule the petitioner even having 52.3% marks with “A” grade in viva voce test was not considered to be qualified for the test. However, the Hon'ble Judge of this Court, who was the member of the Selection Committee of the Commission, came across the anomaly in the rules that the person having 45% marks even if attains the full marks in the interview would remain out of zone of consideration as he would not be completing the Bench mark of 55% aggregate marks. The petitioner further submitted that in the said selection, 17 candidates of the merit list belonging to the general category were appointed and two candidates belonging to the reserved category were appointed. Seven more posts belonging to the reserved category were de- reserved and persons of the general category coming in merit were given appointment as Sub Judge. There were still seven vacancies of reserved category remained unfilled. According to the information of the petitioner, there were six more candidates including him, who had secured 52.3% marks i.e. less than 55% in aggregate, but they were not appointed on the ground that they had failed to secure 55% marks in aggregate. Again, an advertisement appeared in “The Tribune” dated 8.9.1990 inviting applications for competitive examination for recruitment of 52 posts of Punjab Civil Services (Judicial Branch) to be held in December, 1990. Out of 52 posts, 26 were reserved including that of Scheduled Castes, Backward Caste, Ex-servicemen and for the children of the Freedom Fighters of Punjab and the remaining 26 were for the general category. Meanwhile, the Rules of 1951 were amended in 1989 bringing down the qualifying 50% in aggregate in all the written papers. The matter with regard to anomalous condition of the rules also came up for consideration before this Court who struck down the rule 8 and observed that the High Court being convinced of the anomaly as was noticed by the Judge of this Court re-commended to the Government that Rule of 1951 should be suitably amended so as to provide a candidates who had obtained 50% marks instead of 55% in aggregate in all the written papers including viva voce test should be eligible for appointment in the service. The aforesaid recommendation was conveyed to the Government vide letter dated 20.11.1990. The petitioner along with Civil Writ Petition No. 3070 of 1992 -3- *** two other candidates made a representation dated 19.8.1991 pointing out the basic anomaly in the rules and requested them for their appointment against the aforesaid seven remaining posts of the PCS (Judicial Branch). It has been further averred that Civil Writ Petition No.10314 of 1991 titled as Ravinder Singh, Advocate and others vs. State of Punjab and another had been filed seeking declaration that the result of the petitioner be declared in accordance with rule 7 and 8 of the notification dated 4.6.1991 vide which the Punjab Civil Services (Judicial Branch) Rules, 1951 had been amended and also for a direction in the nature of mandamus to the respondents to hold viva voce test of the petitioners for selection to PCS (Judicial Branch) as all of them belonged to Scheduled Castes. The aforesaid writ petition was allowed on 16.1.1992 by the Division Bench of this Court and a direction was given to the respondents to prepare the merit list of Scheduled Caste/Scheduled Tribe candidates who were interviewed having secured more than 45% marks. Even though, they had not obtained 55% marks in the aggregate inclusive of viva voce and also a direction was issued to the respondents to prepare the merit list accordingly. It has been averred that in spite of the judgment delivered by the Division Bench of this Court on 16.1.1992, the State Government did not give effect to the said judgment as regards to the petitioner and accordingly he and other similarly situated candidates have been dealt with by the State Government under anomalous provisions of the PCS (Judicial Branch) Rules 1951, hence this petition. In reply, the respondent No.1 has submitted that in the year 1989, the Punjab Public Service Commission conducted examination for 33 posts of Sub Judges-cum- Judicial Magistrates. In the said examination only 26 candidates (24 General Category Plus 2 Scheduled Castes) had qualified by securing 55% minimum qualifying marks and all these qualified candidates were appointed to P.C.S. (Judicial Branch) by the State Government. Therefore, at the time when the amendment of P.C.S. (J.B.) Rules, 1951 was issued through notification dated 4.6.1991, the appointment of all the 26 qualified candidates on the basis of 1989 examination had since been completed. After consultation with High Court, on its administrative side, the vacant posts reserved for schedule castes were Civil Writ Petition No. 3070 of 1992 -4- *** carried forward as such, 52 vacancies including the 7 vacancies out of 33 vacancies of the year 1989 were got advertised through Punjab Public Service Commission and the Commission conducted the P.C.S. (J.B.) Examination in April, 1991. The appointment of 50 candidates against the 52 vacancies had also since been completed. However, no candidate was available against the remaining two reserved vacancies. It has been averred that it was never the intention of the State Government to enforce the notification dated 4.6.1991 retrospectively viz. from the date 10.4.1989, rather, the amendment dated 4.6.1991 was purposely made for filling up the backlog of the reserved vacancies of Scheduled Castes in future. The respondent No.2 in its reply has submitted that the present writ petition against the answering respondent is not maintainable as the petitioner was required to obtain 55% marks in aggregate including viva voce test for seeking appointment and the petitioner had failed to obtain the required standard of merit. It has also been averred that the present petition suffers from delay and laches as the petitioner had appeared in P.C.S. (Judicial Branch) examination, 1989 and thereafter next examination of 1991 had already been conducted by the Commission and names of the selected candidates had also been sent to the Government for appointment in July, 1991 and that it is impractical to reopen the old selection list after holding the next examination. It has also been submitted that the case of the petitioner is distinguishable with the candidates of C.W.P. No.10314 of 1991. In the said petition, the candidates were belonging to the category of Scheduled Castes of Punjab whereas the petitioner is belonging to the general category. The petitioner filed replication controverting and refuting the averments made in the written statements filed by the respondents and reiterating the averments made in the petition. Arguments heard. Record perused. There is no denying a fact that the petitioner had applied to appear in the competition examination for recruitment of 33 posts against advertisement published in The Tribunal dated 22.7.1989. It is also admitted fact that out of those 33 posts of the Punjab Civil Services (Judicial Branch), examination, which was to be held in December, 1989, 17 Civil Writ Petition No. 3070 of 1992 -5- *** belonged to General Category and out of remaining 16, 9 were reserved for scheduled castes of Punjab (4 for balmiki/ Majhibi Sikhs, if available), 2 for backward caste of Punjab and 5 for Ex-servicemen. There is no dispute that the petitioner qualified for the examination by securing 450 marks i.e. 50% in written papers and called for the interview. The rule prevalent at that time for making the candidate eligible was that he obtains at least 55% in all written papers and no candidate should be considered to have qualified in the examination unless he obtains 45% in aggregate in all papers including viva voce. The plea of the candidate was that there was anomaly in the rules and considering the said anomaly, the Rules of 1951 were amended in 1989, bringing down the qualifying marks to 50% in aggregate in all written papers. The further plea of the petitioner is that since the examination was held in December, 1989, interviews were conducted in June, 1990, whereas Punjab Civil Services (Judicial Branch) Rules were amended on 10.4.1990, were already in force. The amendment in April, 1991 Rules were neither existing nor remained in force till the examination held in April, 1991. The matter then came up before this Court when a Civil Writ Petition No.10314 of 1991 titled as Ravinder Singh, Advocate and others vs. State of Punjab and another, was filed wherein he sought declaration of the result of the petitioner in accordance with Rule 7 and 8 of the Notification dated 4.6.1991, vide which Punjab Civil Services (Judicial Branch), 1951 had been amended and also direction in the nature of mandamus were issued to the respondents to hold viva voce test of the petitioner for selection to the Punjab Civil Services (Judicial Branch) as all of them belonged to scheduled caste. In short, the grievance of the petitioner was that he was not obliged to obtain 55% marks in aggregate in viva voce and was entitled to be interviewed if he had obtained 45% marks and also that he was governed by the amendment dated 4.6.1991, which was brought on the statute book with retrospective effect. The writ was allowed on 16.1.1992. In nutshell the case of the petitioner is that since the petitioner had already obtained 50% marks in theory, therefore, he was not obliged to obtain 55% marks in aggregate and the amendment in rules was applicable. Civil Writ Petition No. 3070 of 1992 -6- *** Having considered the contention, it may be observed that the judgment delivered in case Ravinder Singh, Advocate and others vs. State of Punjab and another, CWP No.10314 of 1991 decided on 16.1.1992, is not applicable. The proposition involved in the judgment is not in doubt, but the same is not applicable to the facts of the present case. The relevant part of the judgment is reproduced as under :- “We are inclined to accept even the third argument raised by the learned counsel for the petitioners appearing in this case. It is no doubt true that the amendment came into being when it was noticed by the Judge of this Court. Even though a candidate securing 45% marks was made eligible for interview as per Rule 7 of the 1989 Rules, by 8 of the said Rules, the right of a person to be interviewed was rendered totally nugatory. There was no purpose whatsoever to call a candidate for viva voce test if he had obtained 45% marks as he could never meet the eligibility criteria even if he was to secure 100 marks in the interview. By virtue of amendment brought about in 1991, it is only a lacuna which was removed. The amendment, thus, has to be held of clarificatory nature. It is only something which was amiss that was inserted and in such a situation, it is only the correct position which shall be said to be in existence even since when the original Rule or clause containing lacuna came into being. In the facts and circumstances of the present case, thus, the amendment brought about in 1991 shall be deemed to be in existence in the Rules that were available prior to the advertisement that came into being with regard to holding of present examination.” It is also not in dispute that the petitioner having secured 50% marks was called for the interview and he had obtained 73 marks out of 100 in viva voce test. He was ignored as he could not meet the merit and the candidates who had competed the merit were selected. The case of the petitioner himself is that respondent No.2 had advertised 33 posts, out of which 17 belonging to the general category and out of the remaining 16, 9 were reserved for Scheduled Caste of Punjab and 2 for backward class and 5 Civil Writ Petition No. 3070 of 1992 -7- *** for the ex-servicemen. All the general category seats had been filled and also some of the reserved category seats were de-reserved and filled the remaining 7 unfilled seats of the reserved category had been carried forward so as to make the total vacant seats to 52 for which the examination has already been held and those seats were again filled. The case of the petitioner is totally distinguishable. He was a member belonging to the general category and the total number of such seats were managed by general category candidates. Thus, even if the petitioner may be taken to be qualified even then he could not come in merit as the candidates making the bench mark on the basis of the existing Rules of 1991 had already occupied the posts and no vacancy was left, therefore, to my mind, this writ petition does not carry any merit and the same deserves to be dismissed. Consequently, the instant petition being without any merit is dismissed. July 22, 2011 (A.N. Jindal) deepak Judge