LPA No. 176 of 2008 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. LPA No.176 of 2008 in CWP No.9340 of 2001 Date of decision: 16.4.2009 Smt.Alka Ghai .Appellant vs. J.R.Verma and others .. ..Respondents CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MR.JUSTICE UMA NATH SINGH. --- Present: Mr.K.K.Gupta, Advocate, for the appellant. Ms.Sangita Dhanda, Advocate. J.S.KHEHAR,J. (Oral) Through the instant order, we propose to dispose of LPA No.176 of 2008, as well as, LPA No. 247 of 2009, whereby the appointment of Smt.Alka Ghai as Secretary, District Red Cross Society,Ambala City, has been set aside, while disposing of CWP No.5889 of 2001 and CWP No.9340 of 2001, by an order dated 25.1.2008. It would be pertinent to mention that two writ petitions came to be filed in this Court, the first at the hands of Mrs.Neelam Mohan i.e.,CWP No.5889 of 2001 and the second at the hands Sh.Janak Raj Verma i.e. CWP No.9340 of 2001. Both the aforesaid writ petitions were disposed of by a common order dated 25.1.2008. The learned Single Judge while examining the veracity of the appointment of Smt.Alka Ghai as secretary, District Red Cross Society,Ambala City, inter alia, relied on the statement made by Smt.Alka Ghai herself during the course of a criminal prosecution (against one of the LPA No. 176 of 2008 2 petitioners i.e., Janak Raj Verma). The statement under reference is being extracted hereunder:- “ Prior to joining the service I had been perhaps studying. I had completed the B.A in the year 1996, in which I secured Second Division and thereafter, I started preparing for the H.C.S. Examination. I have not passed any examination for appointment as Secretary, Red Cross. My name had neither been recommended by the Subordinate Selection Board nor by the H.P.S.C. nor my name had been recommended by the Employment Exchange. I have not participated in any interview. I had been given direct appointment. Prior to that I have no experience of service. The qualification and the experience of the accused Janak Raj Verma are much more than me. I do not remember whether anybody may have been appointed as Secretary red Cross by promotion. Any advertisement in any newspaper has not been got published for filling up of my post. When I was appointed, then Shri Om Parkash Chautala was the Chief Minister of Haryana, who has even now remained as such till 23rd March 2005. Again said he remained as such till 27th February 2005. My husband Shri Surinder Kumar Ghai is the worker of this very party, to which party Shri Chautala is related. It is correct that the Chief Minister Shri Chautala usually visits my house. There may be any function of my family, he attends the same. The appointment had not been given to me by Chautala Sahib. I had just submitted my request in this regard to the worthy D.C. The worthy D.C. has directly appointed me on the post of Secretary. The officers of the District Administration had not accompanied the C.M. to my residence. It is correct that the District Administration is responsible to make arrangement of security etc. at the place which is to be visited by the C.M. The officers of the District Administration did not come, only the security persons had been coming. Sometime the Hon'ble C.M. LPA No. 176 of 2008 3 had been visiting my residence without giving information to the District Administration. At that time any officer had not been accompanying him. He had been visiting alone. Only his security men who remain present in his vehicle, were accompanying him. It is correct that the Hon'ble C.M. was used to stay at my residence for hours together. The sons of the Hon'ble C.M had never visited my residence. The worthy D.C had provided employment to me immediately because I was unemployed, I was in need of the employment. Therefore, the worthy D.C. appointed me directly on the post of Secretary. At that time I had been appointed on contract basis on the salary of Rs.8000/- per month. Now I am in the scale of Rs.10,000- 13900. This scale is of First Class Officer”. During the course of hearing, learned counsel for the appellant has not disputed the fact, that the aforesaid statement was actually made by her. He has also not disputed the correctness thereof. A perusal of the aforesaid statement, inter alia, reveals the following inevitabe conclusions:- Firstly, the appellant Smt.Alka Ghai had qualified the B.A. Examination in 1996 in the second division, and thereafter, had prepared for the HCS examination, but could not qualify the same . Secondly, the name of the appellant Smt.Alka Ghai, for appointment to the post of Secretary,District Red Cross Society,Ambala City had neither been recommended by the Haryana Subordinate Services Selection Board, nor by the Haryana Public Service Commission, and not even by the Employment Exchange. Thirdly, the appellant Smt.Alka Ghai had not participated in any interview prior to her selection and appointment as LPA No. 176 of 2008 4 Secretary District Red Cross Society,Ambala City. Fourthly, the appellant Smt.Alka Ghai had no experience of service prior to her appointment as Secretary District Red Cross Society,AmbalaCity. Fifthly, the qualifications and experience of Smt.Alka Ghai were much lower than those possessed by one of the petitioners (Janak Raj Verma). It also needs to be noticed here, that the aforesaid Janak Raj Verma had also claimed appointment as Secretary, District Red Cross Society Ambala City, but the choice of the authorities fell on Smt.Alka Ghai. Sixthly, that prior to the selection and appointment of Smt.Alka Ghai as Secretary, the post in question had not been advertised for inviting applications from interested candidates. Seventhly, the appellant's husband Shri Surender Kumar Ghai, was close to then Chief Minister Shri Om Parkash Chautala. It is also acknowledged that the said Chief Minister visited the house of the appellant on all family functions, and even otherwise. It is also acknowledged that the aforesaid visits were after intimating the District Administration, as also, on some occasions privately, without any such advance intimation. Eightly ,the appointment order issued to Smt.Alka Ghai was as a consequence of a request made by her, to the Deputy Commissioner, which was immediately acceded to, because the appellant was unemployed, and was in need of employment. Ninethly, that in the first instance, the appointment of Smt.Alka Ghai was on contract basis at a consolidated salary of LPA No. 176 of 2008 5 Rs.8000/-, whereafter, she was placed in the scale of Rs.10.000-13,900. Unmindful of the statement made by the appellant herself, which has been admitted to be correct, learned counsel for the appellant has raised series of submissions, which we shall deal with in seriatum hereinafter. The first contention of the learned counsel for the appellant is, that the District Red Cross Society,Ambala City, is not State within the meaning of Article 12 of the Constitution of India, and as such, this Court has no jurisdiction to deal with the controversy pertaining to the appointment of the petitioner. For the purpose under reference, learned counsel for the appellant has placed reliance on a decision by a learned Single Judge of this Court in Pant Raj Sachdev Vs. The Indian Red Cross Society and others,, 1986(1)Services Law Reporter 675. Reliance has also been made on a decision rendered by a Division Bench of this Court in Kali Ram Vs. Indian Red Cross Society, Haryana, Chandigarh (CWP No.12538 of 1992, decided on 17.2.1993) wherein the judgment rendered by this Court in Pant Raj Sachdev's case (supra) was followed. Reference has also been made to the decision rendered by another Division Bench of this Court in the District Red Cross Society, Sirsa Vs. Radha Kishan Rajpal and another, 2005(1) Services Law Reporter 781, wherein pointed attention of this Court has been drawn to paragraph 24. Paragraph 24 of the judgment relied upon by the learned counsel for the appellant is being extracted hereunder:- “ We respectfully agree with the views expressed by learned Single Judge in Pant Raj Sachdev's case (supra) and hold that a writ under Article 226 of the Constitution of India LPA No. 176 of 2008 6 is maintainable against the India Red Cross Society and its Branches and the learned Single Judge did not commit any illegality by entertaining the writ petition filed by the respondent.” Last of all, reliance was placed by the learned counsel for the appellant on Sarmukh Singh v. Indian red Cross Society, 1985 LAB.I.C.1072, wherein a learned Single Judge of the Delhi High Court had concluded that the Indian Red Cross Society was not State within the meaning of Article 12 of the Constitution of India.Bbased on the judgments, referred to hereinabove, it is the vehement contention of the learned counsel for the appellant, that the two writ petitions, referred to hereinabove, were wrongly entertained by this Court in exercise of jurisdiction vested under Article 226 of the Constitution of India. In order to deal with the controversy under reference, it would be pertinent to extract hereunder Rule 20 of the Constitution adopted by the District Red Cross Society in its Annual General Meeting, held on 23.3.2007 (which was appended as Annexure R4/1 with the written statement filed on behalf of respondent No.4 in CWP No.9340 of 2001). Rule 20 which relates to appointments including the appointment of the post of Secretary is being extracted hereunder:- 20. 1) All appointments in the District Branch shall be made by the President. The President shall have the power to determine the terms of employment and pay allowances of the staff of the District Branch and cases would be laid before the Executive Committee for confirmation. ii) Notwithstanding anything contained in Rule 20 (i) the appointment of the Secretary or the district Branch shall be made by the President with the approval of the State Branch LPA No. 176 of 2008 7 and shall not be annulled expect with previous concurrence of of the State Branch.” It is not a matter of dispute that the Deputy Commissioner of the district is the President of the District Red Cross Society,AmbalaCity. The Executive Committee, referred to in rule 20, is constituted under rule 11. The Executive Committee, in terms of rule 11, includes the Deputy Commissioner, Ambala, the Chief Medical Officer, Ambala, as also the District Education Officer, Ambala, as Ex-officio members of the Executive Committee. There are some nominated members also. Their nomination is,however, at the hands of the members already referred to hereinabove. It is therefore, apparent that in so far as the issue of appointment is concerned, it exclusively vests in the hands of the functionaries of the State Government. Since the issue of appointments to the District Red Cross Society Ambala City, is controlled by the functionaries of the State Government, we are satisfied, that it is open to this Court to exercise its jurisdiction under Article 226 of the Constitution of India, in case of a challenge on an issue pertaining to appointment to the District Red Cross Society. Additionally, it may be mentioned that a Division Bench of this Court in District Red Cross Society Sirsa's case (supra), has already arrived at the conclusion in the paragraph extracted hereinabove, that it is open to this Court to exercise its jurisdiction under Article 226 of the Constitution of India, to examine certain issues relating to the Red Cross Society, as also their branches. For the reasons recorded hereinabove, it is not possible for us to accept the first contention advanced by the learned counsel for the appellant. LPA No. 176 of 2008 8 The second contention advanced by the learned counsel for the appellant is based on rule 20 (already extracted hereinabove). It is the emphatic contention of the learned counsel for the appellant, that the aforesaid rule was complied with in letter and in spirit, at the time when the appellant was appointed as Secretary, District Red Cross Society,Ambala City. It is also the contention of the learned counsel for the appellant that originally the appointment of the appellant was on ad-hoc basis, for a period of six months (vide order dated 20.6.2000,Annexure P11). The aforesaid ad-hoc appointment had also been approved by the Executive Committee of the District Red Cross Society,Ambala City, in its meeting held on 6.9.2000 (Annexure R-3/3). As a consequence of an independent determination at the hands of the Deputy Commissioner-cum-President District Red Cross Society,Ambala city, the appellant was regularised against the post of Secretary, District Red Cross Society vide order dated 16.2.2001 (Annexure P14). In this behalf it would be pertinent to mention, that vide order dated 10.8.2001, passed by the Haryana Branch of the Indian Red Cross Society (issued by the Governor,Haryana, as well as the Chief Minister,Haryana, in their capacity as President and Vice President of the Haryana State Branch of the Indian Red Cross Soceity) the order of regularisation of the service of the appellant was approved. Based on the procedure adopted in the process of selection and appointment of the appellant, it is the vehement contention of the learned counsel for the appellant, that no fault whatsoever could be found therein. We have examined the second submission advanced by the learned counsel for the appellant, as has been noticed in the foregoing paragraph. We are however satisfied, that there is no merit therein. The LPA No. 176 of 2008 9 process of selection and appointment of the appellant can only be treated as an autocratic and arbitrary exercise of powers at the hands of govermental authorities. It is acknowledged by the appellant in her statement that she never participated in any process of selection, and and that she was not even interviewed, before her appointment as Secretary, District Red Cross society,Ambala City. Needless to mention that in her statement Smt.Alka Ghai acknowledged that no advertisement had been issued for filling up the post of Secretary before her appointment. It stands even acknowledged that the qualifications and experience of those who had raised a challenge against the appointment was far more than the appellant. Such persons with higher qualifications and experience were desirous of appointment as Secretary, District Red Cross Society, Ambala City, and had actually submitted representations in that behalf. The validity of the claim of the appellant was based on the fact, that she was unemployed, and as such, the Deputy Commissioner in his capacity as Ex-officio President of the District Red Cross Society,Ambala City, had chosen to select her for the pivotal post, completely ignoring the fact that there are thousands others in this country who may have been searching for employment in the same manner as the appellant. An issue of paramount consideration is, the statement of the appellant herself (extracted hereinabove), which discloses extreme proximity of the then Chief Minister of the State of Haryana, with the family of Smt.Alka Ghai. We are therefore, left with no alternative but to conclude that the action of appointing Smt.Alka Ghai as Secretary District Red Cross Society Ambala City, was an abuse of power at the hands of government functionaries, and cannot be approved by any standard of law. LPA No. 176 of 2008 10 The third contention advanced by the learned counsel for the appellant is based on the fact, that a large number of persons similarly situated as the appellant, were appointed as Secretaries of different Red Cross Societies, by following the same procedure as had been adopted by the authorities while appointing the appellant. The Court's pointed attention was drawn to the appointment of the following:- Name of the person Place of appointment. 1. Mahesh Gupta Distt. Red Cross Society,Jhajjar. 2. Shayam Sunder Distt. Red Cross Society,Bhiwani. 3. S.S.Saini Distt. Red Cross Society,Mewat. 4. Rohtash Sharma Distt. Red Cross Society,Narnaul. 5. Naresh Kumar Distt. Red Cross Society,Fatehbad. 6. Randeep Singh Distt. Red Cross Society,Fatehabad. 7. Sunil Kumar Distt. Red Cross Society,Karnal. 8. Subhash vashistha Distt. Red Cross Society,Sonipat. 9. Ajay Wasan Distt. Red Cross Society,Kurukshetra. 10. Mrs.Vijay Laxmi Distt. Red Cross Society,Panchkula. 11. Ravinder Kumar Lohan Distt. Red Cross Society,Hissar. 12. Parduman Kumar Distt. Red Cross Society, Sirsa. 13. Mrs.Vijay Chaudhary Distt. Red Cross Society,Panipat. 14. R.P.Saini Distt. Red Cross Society,Rohtak. 15. R.S.More Distt. Red Cross Society,,Kaithal. 16. Ms.Urmila Rais Distt. Red Cross Society,Gurgaon. 17. Mrs.Savita Aggarwal Appointed as Joint Secretary in Haryana State Branch of Red Cross Society at Chandigarh.” It is the vehement contention of the learned counsel for the appellant that the learned Single Judge did not take into consideration the fact, that as a matter of routine, the procedure adopted in the case of the appellant , as LPA No. 176 of 2008 11 Secretary, District Red Cross Society, Ambala City was regularly being adopted, for a large number of other persons, and that all those referred to hereinabove, were still discharging their duties as such. We have considered the third submission advanced by the learned counsel for the appellant but find no merit therein. A thousand bad/wrongful actions cannot be the basis of concluding, that the action taken by the authorities in appointing Smt.Alka Ghai is good. Moreover, the selection and appointment of the persons whose names have been referred to hereinabove, were not subject matter of consideration at the hands of this Court. The solitary claim under consideration during the disposal of the two writ petitions referred to above was the validity of appointment of the appellant. Having examined the facts and circumstances of the case of the appellant, this Court arrived at the conclusion that her selection and appointment as Secretary, District Red Cross Society,Ambala City, was as a matter of favour and not as a matter of valid consideration. That being so, there is hardly any scope for interference in the determination rendered by the learned Single Judge in so far as the appointment of the petitioner is concerned. The fourth contention advanced by the learned counsel for the appellant is that the petitioners in CWP No.9340 of 2001 and in CWP No.5889 of 2001, had no locus standi to raise a challenge against the appointment of the appellant as Secretary, District Red Cross Society,Ambala City. Although it is not a matter of dispute, that the petitioners in both the writ petitions, referred to hereinabove, were employees of the District Red Cross Society, Ambala City, and as such, we are satisfied that they had locus-standi to raise a challenge against the LPA No. 176 of 2008 12 appointment of the appellant as Secretary District Red Cross Society, Ambala City, on account of the fact that the appellant would have been vested with the authority to administratively supervise their work and conduct. But even if they had not been the employees of the District Red Cross Society,Ambala City, we are satisfied that they would still have locus- standi to raise a challenge against the selection and appointment of the appellant who was discharging onerous responsibilities in her capacity as Secretary, District Red Cross Society, Ambala City. Thus viewed, we find no merit in the fourth contention advanced by the learned counsel for the appellant. The fifth submission advanced by the learned counsel for the appellant was that a new plea was allowed to be raised by the learned Single Judge, inasmuch as, the statement of the appellant, extracted hereinabove, was not a part of the pleadings when the original writ petition was filed. It is pointed out that the aforesaid statement was placed on the record of the case through civil miscellaneous application, and as such, the determination rendered by the learned Single Judge on the basis of the aforesaid statement was wholly unjustified. During the course of hearing, we inquired from the learned counsel for the appellant whether the appellant had actually made the statement (extracted hereinabove) which was relied upon by the learned counsel for the appellant very fairly acknowledged that the appellant had actually made the aforesaid statement during the course of her deposition as a witness in a criminal case. Since the aforesaid statement had been made on oath by the appellant herself, and the veracity thereof is not subject matter of challenge at the hands of the appellant, even during the course of the LPA No. 176 of 2008 13 proceedings of the instant Letters Patent Appeal, we find no merit in the instant submission advanced by the learned counsel for the appellant. The learned counsel for the appellant then submitted that this Court had no jurisdiction to adjudge the inter-se merit of the candidates namely, the appellant herself vis-a-vis the other petitioner i.e. Janak Raj Verma. It is pointed out that the aforesaid function rests solely in the hands of the selecting agency and this Court had no business to deal with the aforesaid issue. Accordingly it is submitted that the conclusions recorded by this Court while disposing of the main writ petition are liable to be set aside, because the conclusions drawn by this Court were based on a determination which was beyond the purview of this Court. While considering the submission made on behalf of the appellant during the course of his sixth submission, we must in the first instance emphatically clarify, that the issue under reference relates to the validity of the process adopted by the respondents in selecting and then appointing the petitioner as Secretary, District Red Cross Society,Ambala City. During the course of the aforesaid consideration, one of the points considered by the learned Single Judge does relate to the superior merit of one of the petitioners (Janak Raj Verma) but then, one cannot lose sight of the fact that the aforesaid determination also emerges from the statement made by the appellant herself (extracted hereinabove) wherein the appellant stated “The qualification and the experience of the accused Janak Raj Verma are much more than me.....”. Thus viewed, the factual position taken into consideration is based on the admission of the appellant herself accordingly, we find no merit in the sixth submission advanced by the learned counsel for the appellant. LPA No. 176 of 2008 14 During the course of his seventh submission, based on the claim of the appellant on merits, learned counsel for the appellant invited our attention to the averments made in paragraph 11 of the grounds of appeal. Paragraph 11 of the grounds of appeal is being extracted hereunder:- “ That moreover, the appellant has rendered more than 7 years of service on the post of Secretary, District Red Cross society,Ambala, and during the said period the appellant earned a lot of appreciation letters of her work so much so that the appellant got commendation certificates in collecting Rs.65 Lacs for the victims of earh quake in Gujrat and was honoured by the Haryana Govt. on the Republic Day as well as on the Independence Day. The also got repeated appreciations for being a regular blood donor and was also issued with the certificate of appreciation for getting collected 2730 units of blood. Even other voluntary agencies have issued number of commendation and appreciation certificates in favour of the appellant. Keeping all these factors in view, the competent authority rightly regularized the services of the appellant as the appellant was found to be the fit person for the job of Secretary of the District Red Cross Society,Ambala. All these facts have completely been ignored by the learned Single Judge.” Yet again, learned counsel for the appellant has diverted from the pointed controversy before this Court. The issue adjudicated upon was that the selection and appointment of the appellant had been made without the post of Secretary, District Red Cross Society,Ambala City, having been advertised, and without there having been any process of selection prior to her appointment. Her merits and suitability could have been subject matter of consideration if the process of selection had been conducted, wherein the appellant and others desirous of appointment as Secretary, District Red LPA No. 176 of 2008 15 Cross society, had participated. The instant submission, in our view, is totally misdirected as the post to which the appellant was appointed was never advertised,