CWP No. 5141 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 18 .02.2010 Santi Saroop and others ...Petitioners VERSUS The State of Punjab & Others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Balram Gupta, Sr. Advocate with Mr.Shreesh Gupta, Advocate for the petitioners Mr.BS Chahal, DAG, Punjab for respondent no.1 Mr.DS Patwalia, Advocate for respondents no.2 and 3 Mr.Rajive Atma Ram, Sr.Advocate with Mr.Daman Dhir, Advocate for respondent no.4 CWP No. 5141 of 2005 2 Permod Kohli, J. Selection/appointment of respondents no.4 and 5 to the post of Sub Divisional Engineers (Bridges & Roads) in the Punjab Urban Planning and Development Authority (PUDA) is under challenge in the present writ petition. Respondents-PUDA is admittedly a statutory corporation and amenable to writ jurisdiction of this Court. Factual background leading to the filing of this petition is noticed here-in-below. The petitioners hold three years Diploma in Civil Engineering. Initially, they were appointed as Junior Engineers with the respondent- authority on their selection, in accordance with rules on 14.9.1979, 26.6.1979 and 14.1.1980, respectively. Their inter-se seniority is to be determined on the basis of their merit in the process of selection. The respondents-authority re-designated the Junior Engineers as Assistant Engineers, after 16 years of service as such. The petitioners were, therefore, designated as Assistant Engineers. Respondents no.4 and 5 were also appointed as Junior Engineers in the respondent-authority and re-designated as Assistant Engineers. A final seniority list of Junior Engineers (Civil) was notified vide Circular dated 30.6.1996 (Annexure P-1) wherein the CWP No. 5141 of 2005 3 petitioners figure at Sr.Nos.24, 25 and 29, respectively whereas respondent no.4 figures at Sr.No.76. However, the name of respondent no.5 is not reflected in the said seniority list. Next promotion in the hierarchy of service is to the post of Sub Divisional Engineer (Civil) which is regulated by the statutory regulations framed under Section 182 of the Punjab Regional, Town Planning and Development Act, 1995 (hereinafter referred to as the “1995 Act”). These Regulations were framed in the year 1999. Regulation 8 deals with the appointment to posts in service. The post of Sub Divisional Engineer is a Class II post as specified under Schedule III appended to the aforesaid regulation. Regulation 8 and Schedule III read as under:- “8.Qualification and experience: (1) All appointments to the posts in service shall be made in the manner specified in Schedule III: Provided that if no suitable candidate is available for appointment by direct recruitment or by promotion, as the case may be, such a post shall be filled by transfer of person holding identical post or similar post in any department of the Government of Punjab, any other State Government or Government of India or a local authority, a statutory body or a corporate body or a Government or Semi-Government Undertaking or Organization. CWP No. 5141 of 2005 4 (2)No person shall be appointed to a post in a Service unless he possesses the educational qualifications and experience as specified that post in Schedule III. (3)All appointments by promotion to Class III posts in a service shall be made from amongst eligible persons on seniority-cum-merit basis and no person shall be entitled to claim promotion on the basis of seniority alone. (4)All appointment by promotion to Class I and Class II posts in a service shall be made by selection on merit- cum-seniority basis and no person shall be entitled to claim promotion on the basis of seniority alone. (5)Whenever any vacancy occurs in a Service the same be filled up as per provisions of these Regulations.” SCHEDULE III Class II (Technical) Sr. No. Designation of Post Source of appointment Qualification and Experience Promo tion Direct Recruitme nt Dep uta- tion Promotion Direct Recruitme -nt Deputati -on 1. 2. 3. 4 5. 6. 7. 8 CWP No. 5141 of 2005 5 Sr. No. Designation of Post Source of appointment Qualification and Experience 1. Sub- Divisional Engineer (Civil) 55 per cent 45 per cent - From amongst Junior Engineers (Civil) of the Authority with:- i) 34 per cent posts from amongst Junior Engineer (Civil) with Diploma in Civil engineering with ten years experience as Junior Engineer (Civil) and having passed or should pass the departmental examination as specified in regulation 17. ii)14 percent posts from amongst Junior Engineers (Civil) and drawing cadre having Degree in Civil engineering with two years experience as Junior Engineers (Civil) or A.M.I.E in Civil Engineering with five years experience as Junior Engineer (Civil) and in the case of drawing cadre the experience of five years as Draftsman or above and having passed or should pass the departmental examination as specified in regulation-17. iii)7 percent posts from Circle Head Draftsmen of the Authority with at least ten years experience as Draftsman and above and having passed or should pass the departmental examination as specified in Regulation 17. Degree in Civil Engineeri ng or equivalent qualificati on from a recognize d university / institution and to pass Departme ntal examinati on as specified in Regulatio n 17. Should be holding an identical or similar post or should possess qualifica tions and experien ce prescrib ed for appoint ment by direct recruitm ent or by promoti on. Note: In case the eligible candidates CWP No. 5141 of 2005 6 are not available for promotion in category (ii) then these vacancies will be filled up from amongst the candidates in category (i). Proviso to Regulation 8 (1) prescribes three modes of appointment- (1)by direct recruitment (2) by promotion and (3), if no suitable candidate is available for appointment by direct recruitment or by promotion, such a post shall be filled by transfer of person holding identical post or similar post in any department of the Government of Punjab, any other State Government or Government of India or a local authority, a statutory body or a corporate body or a Government or Semi-Government Undertaking or Organization. All appointments by promotion to Class I and Class II posts in Service are to be made by selection on merit-cum-seniority basis. Schedule III provides for making appointment to the post of Sub Divisional Engineer (Civil), 55% by promotion and 45% by direct recruitment. In so far as the promotion is concerned, the feeding channel is Junior Engineer re-designated as Assistant Engineer (Civil) with 34% posts from amongst Junior Engineers (Civil) with Diploma in Civil Engineering with 10 years experience and having passed the departmental examination as specified in Regulation 17 and 14% posts from amongst Junior Engineers (Civil) having degree in Civil Engineering with two years experience as Junior Engineer (Civil) or A.M.I.E. in Civil Engineering with five years experience as Junior CWP No. 5141 of 2005 7 Engineer (Civil). The qualification for direct recruitment is Degree in Civil Engineering or equivalent qualification from a recognized University and to pass departmental examination in accordance with Regulation 17. The petitioners and respondent no.4 belong to the feeding channel representing 34% quota prescribed for promotion to the post of Sub Divisional Engineer. It is alleged that with a view to grant undue promotional benefit to respondent no.4, the then Minister for Housing Construction Urban Development prepared a note dated 19.6.2001 for creation of one new post of SDO (Roads and Bridges) to be filled up from the Junior Engineer of PUDA having experience of construction of road and bridges. In the said note, particular reference is made to respondent no.4 and regarding his experience in construction of bridges. On the basis of the initiative of the Minister, the matter was considered by the Punjab Urban Development Authority and vide Agenda Item No.14.10, two posts from direct recruitment quota were converted to be filled up from amongst the Junior Engineers (Civil) working in PUDA having at least five years experience regarding construction of bridges and roads out of the total requisite experience prescribed under the Regulation. It is alleged by the petitioners that this entire exercise was to provide promotion to respondent no.4 who otherwise would not have earned promotion being much below in seniority than the petitioners. The petitioners represented against the aforesaid CWP No. 5141 of 2005 8 decision of the respondent-authority vide representation dated 9.11.2001 (Annexure P-5). On the basis of the aforesaid decision, applications were invited by the Administrative Officer to fill up the post of Sub Divisional Engineer (Bridges and Roads) in PUDA from concerned J.Es (Civil) working in PUDA vide letter dated 7.12.2001 (Annexure P-6). The petitioners challenged the decision of the PUDA to fill up the posts through the aforesaid notice in CWP No.19814 of 2001. In the aforesaid writ petition Division Bench of this Court, on 20.12.2001, while issuing notice of motion, passed following order:- “Notice of motion for 27.5.2002. Meanwhile, petitioners may apply for the post under contention, which has been advertised vide Annexure P-4, provisionally. Appointments, if made, shall be subject to the decision of this writ petition.” Besides keeping the appointments subject to the decision of the writ petition, the petitioners were also permitted to apply. In the meanwhile, the respondent-authority issued another Office Order dated 20.12.2001 (Annexure P-8) taking two posts of Junior Engineer out of direct recruitment quota of Sub Divisional Engineer (Civil) for the work relating CWP No. 5141 of 2005 9 to Bridges and Roads. In pursuance to the decision of the authority in its 14th meeting held on 6.11.2001 vide Agenda Item No.14.10, regulations of 1999 were amended in the following manner:- SCHEDULE III Class II (Technical) Sr. No. Designatio n of Post Source of appointment Qualification and Experience Prom otion Direct Recruitm ent Deput ation Promoti on Direct Recruitment Deput ati-on 1 2. 3. 4 5. 6. 7. 8. 2. Sub- Divisional Engineer (Birdges and Roads) 2 posts out of 45% mentione d in Sr.No.1 above. - From amongst Junior Engineers (Civil) with 5 years experience in construction of bridges and roads and to pass Departmental examination as specified in regulation 17. Note: In case the eligible candidates are not available for promotion in category (ii), then these vacancies will be filled up from amongst the candidates in category (i).” It is alleged that the aforesaid Office order is ante-dated as the Hon'ble High Court had issued interim order on 20.12.2001. In response to CWP No. 5141 of 2005 10 the letter dated 7.12.2001 (Annexure P-6) inviting applications, the petitioners as also respondents no.4 and 5 applied for their consideration against the two separately carved posts. It is one of the grounds of the petitioners that the applications were invited even without amending Regulation. According to the petitioners, applications were invited on 7.12.2001 whereas Regulation came to be amended on 20.12.2001 which establishes mala fide intention of respondents no.1 and 2. To fill up these posts, the authority constituted a Screening Committee. On the basis of the selection by the Screening Committee, respondents no.4 and 5 were appointed as Sub Divisional Engineers (Bridges and Roads) in the pay scale of Rs.7880-13500, subject to decision of the writ petition filed by the petitioners, vide orders dated 26.2.2002 (Annexures P-10 and P-11). The petitioners have challenged the aforesaid orders of appointment of the respondents on variety of grounds. Besides the Regulation referred to above, the department of Housing and Urban Development, Punjab had earlier also issued a notification dated 27.5.1996 under Sub Section (4) of Section 175 of the 1995 Act constituting following departmental selection committee for Classes I and II promotions:- 1.Chairman PUDA - Chairman 2.Vice Chairman-cum-SHUD - Member CWP No. 5141 of 2005 11 3.Chief Administrator - Member 4.Subject matter expert - Member 5.One Scheduled Caste Officer if there is no SC Officer in the Committee - Member. The Government of Punjab issued another Circular dated 6.9.2001 modifying the instructions regarding setting up of the Departmental Promotion Committee and the criteria for selection. It was decided to consider the ACRs of last five years for promotion and the ACRs to be evaluated in the following manner:- “Out-Standing - 4 marks Very Good - 3 marks Good - 2 marks Average - 1 mark” Apart from above, it was decided to fix the minimum bench marks. The petitioners have challenged not only the selection/appointments of respondents no.4 and 5 but also the validity of the amended Regulation 8 (Annexure P-9) as also the Minutes of the Screening Committee (Annexure P-17). It is relevant to note that the Screening Committee constituted by the respondents had evaluated respondents no.4 and 5 on the basis of criteria laid down by it during the course of selection. The criteria laid down by the Committee is as under:- CWP No. 5141 of 2005 12 “1.Marks regarding the experience of bridges - 5 2.Marks regarding the experience of roads - 5 3.Marks on the basis of annual confidential reports of the last five years - 10 4.Marks for the seniority - 5 5.Marks for the interview - 5” The final evaluation of the applicants was made in the following manner:- Sr.N o. Name of the applicant Marks of experien ce Marks of experie nce Marks of report Marks of seniorit y Marks of intervie w Total marks 1. Gurtej Singh (BC) 3.5 0 6.5 3.70 2 15.70 2. Fauza Singh (Gen.) 3 0 6 3.96 2 14.96 3. Manjit Singh (Gen.) 0 0 6 5 0 11 4. Charanjit Singh (Gen.) 0 0 4.5 4.10 2.5 11.10 5. Gurdev Singh (Gen.) 2.5 0 5.5 4.60 0 12.60 6. Harbans Singh (BC) 1.5 2 6 1.22 2 12.72 CWP No. 5141 of 2005 13 Sr.N o. Name of the applicant Marks of experien ce Marks of experie nce Marks of report Marks of seniorit y Marks of intervie w Total marks 7. Paramjit Lal (SC) 3 1 6.5 1.41 3.5 15.41 8. Satish Kumar (SC) 2 0 6.5 1.57 4 14.7 9. Lal Chand (SC) 2 0 7 4.42 4 17.42 10. Shanti Sarup Khanania (Gen.) 3 0.5 7.5 4.79 4 19.79 11. Dev Raj (SC) 3 2.5 6 2.12 3.5 17.12 12. Amar Singh Randhawa 3.5 4 9 1.51 3 21.10” Respondent no.5 belongs to Scheduled Caste and out of the two posts, one post was reserved for Scheduled Castes candidates, hence respondent no.5 was appointed against the reserved vacancy whereas respondent no.4 was appointed against the General Category vacancy. Total points secured by respondent no.5 were 17.42 at Sr.No.9 and by respondent no.4 21.10 marks at Sr.No.12. Petitioner no.1 has been awarded 19.79 marks and is CWP No. 5141 of 2005 14 placed at Sr.No.10 of the evaluation list whereas petitioner no.2 was placed at Sr.No.5 and petitioner no.3 at Sr.No.2 of the evaluation list with 12.60 and 14.96 marks, respectively. The petitioners have challenged the selection/appointment of the private respondents primarily on the following grounds:- (1)Respondents-authority has acted illegally and arbitrarily in amending the Regulation of 1999 with the sole object of adjusting respondent no.4. (2)The selection/Screening Committee acted illegally by creating criteria during the process of selection in such a manner that the benefit could go only to respondent no.4. The criteria laid down during the process of selection is liable to be set aside. (3)Applications were invited for filling up of the two posts even before the amendment of the regulations; (4)The criteria adopted by the Selection Committee is itself bad and arbitrary in nature. (5)The entire exercise was initiated at the instance of the Hon'ble Minister to adjust respondent no.4. (6)The post having been filled up by criteria laid down for promotion regulation governing promotion is applicable. To the contrary, it is contended on behalf of the respondents that the petitioners participated in the selection process and after having been CWP No. 5141 of 2005 15 rejected have filed this petition. They are estopped from challenging the selection. It is further pleaded that criteria adopted is fair, rational and valid. There is no bias or mala fide in selection and the selection has been made on merits of candidates. I have heard learned counsel for the parties. The petitioners and the private respondent are the employees of the Punjab Urban Planning and Development Authority (hereinafter referred to as the Authority) constituted under the Punjab Regional Town Planning and Development Act, 1995 (hereinafter referred to as the Act). “Authority” is defined under Section 2 (d) of the Act which reads as under:- “2 (d)- “Authority” means the Punjab Urban Planning and Development Authority constituted under Section 17 or a Special Urban Planning and Development Authority constituted under Section29 or a New Town Planning and Development Authority constituted under Section 31.” The composition of the “Authority” is prescribed under Section 17 of the Act whereas the Officers and Employees of the “Authority” are to be appointed in terms of Section 26 of the Act. Section 182 of the Act empowers the Authority to make regulations. The aforesaid provisions of the Act are noticed here under:- CWP No. 5141 of 2005 16 “17.Establishment and constitution of the Authority.- (1) With effect from such date as the State Government may, by notification, specify in this behalf, the State Government shall establish for the purposes of this Act, an Authority to be known as the Punjab Urban Planning and Development Authority, with headquarters at such places as the State Government may specify. (2)The Authority established under sub-section (1) shall be a body corporate as well as a local authority, by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract; and shall, by the said name, sue and be sued. (3)The Authority established under sub-section (1) shall consist of the following members to be appointed by the State Government, namely;- (i) a Chairman; (i-a) a Co-Chairman (ii) a Vice-Chairman; CWP No. 5141 of 2005 17 (iii) a Chief Administrator who shall be appointed from amongst the officers of the Government of Punjab having such qualifications and experience as may be prescribed; and (iv) not more than twelve and not less than six official and non-official members including the Secretaries Government of Punjab holding the charge of Local Government and Town and Country Planning: Provided that the number of non-official members shall not, at any time, exceed three. (4) The Chief Minister, Minister-in-charge of Housing and Urban Development and the Secretary to Government of Punjab, holding the charge of Housing and Urban Development shall, respectively, be the Chairman, Co-chairman and the Vice-chairman of the Authority. XXX XXX XXX 26.Staff of the Authority.- (1) The Authority may appoint such number of officers and other employees including experts for technical and CWP No. 5141 of 2005 18 legal work as may be necessary for the efficient performance of its functions and may determine their designations and grades. (2)The officers and other employees of the Authority shall be entitled to receive, from the fund of the Authority, such salaries and allowances and shall be governed by such conditions of service as may be determined by regulations made in this behalf by the Authority. (3)The exercise of any powers or discharge of any duties or functions under sub-section (1) by any officer or other employees of the Authority shall be subject to such restrictions, conditions and limitations, if any, as may be laid down by regulations of the Authority, and shall also be subject to its control and supervision. XXX XXX XXX 182.Power of the Authority to make regulations.- (1) The Authority may make regulations, consistent with this Act and the rules made thereunder, to carry out the purposes of this CWP No. 5141 of 2005 19 Act. (2)In particular and without prejudice to the generality of this power, such regulations may provide for,- (a) the summoning or holding of the meetings of the Authority, the time and place where such meetings are to be held and the conduct of business at such meetings under sub-section (1) of section 21; (b)the functions to be assigned to the Chief Administrator by the Authority under Section 22; (c) the appointment of committees under Section 23; (d)the salaries, allowances and conditions of service of officers and other employees of the Authority under sub-section (2) of Section 26; (e) the powers and duties of the officers and other employees of the Authority under sub-section (3) of Section 26; (f)any other matter which has to be, or may be, determined by regulations.” CWP No. 5141 of 2005 20 From the composition of “Authority” prescribed under Section 17 of the Act, it appears that it is a multi-member authority and is autonomous in nature, though the Chairman and Vice-Chairman are the Chief Minister and the Minister In-charge of Housing and Urban Development. Similarly, other officials of the Government are also the members of the Authority. Section 26 of the Act authorizes the authority to appoint such number of officers and other employees, including experts for technical and legal work. The Authority also can determine their designation and grade. Section 182 of the Act empowers the Authority to make regulations to carry out the purposes of the Act. Clause (d) of sub-section (2) of Section 182 of the Act empowers the authority to prescribe salaries, allowances and other conditions of service of officers and other employees of the Authority. In exercise of the power under Section 182 (2) (d) of the Act, the Authority has framed regulations to prescribe qualifications and mode of recruitment to various posts in the Authority. The Authority has framed regulations. Some of the relevant Regulations are reproduced here under:- “3.Number and character of posts:- The service specified in Scheme II shall comprise of the posts specified in Schedule-I: Provided that nothing these regulations shall affect the inherent right of the Authority to add or CWP No. 5141 of 2005 21 reduce the number of such posts or create new posts with different designations and different scales of pay whether permanent or temporary. XXX XXX XXX 9.Selection Committee and its functions:- All appointments by direct recruitment to Class-I, Class-II, Class III posts shall be made on the recommendations of the Selection Committee to be constituted by the Chief Administrator in consultation with the State Government. In terms of Section 26 of the Act, it is the Authority which has the exclusive jurisdiction not only to appoint Officers and other employees including experts on technical posts but also to determine their designation and grades. In exercise of the aforesaid powers, the Authority has prescribed qualifications and the mode and method of recruitment of employees, including the Engineering staff. In the Original Regulation 8, there were three modes of appointment, according to the quota prescribed therein whereas by virtue of the amendment, another source of recruitment has been created i.e. by selection from the in-service employees of the Authority. Two posts were taken out from the direct recruitment quota to be filled in by selection from the in-service Junior Engineers. From the CWP No. 5141 of 2005 22 conjoint reading of Sections 26 and 182 (2) (d) of the Act, it appears that the Authority was fully competent to amend the regulations and create another source of recruitment. It has been alleged that the Authority has amended the Regulations with the sole object of adjusting respondent no.4. In support of this contention, reference is made to the initial note prepared by the Minister for Housing and Urban Development. It is admitted position on record that when the said note was prepared, reference was made to respondent no.4. However, by amending the regulation, two posts were created- one for General Category and another for reserve category of Scheduled Castes. The posts have been filled up by inviting applications from all eligible employees and by holding the process of selection. Petitioners and some other candidates who were eligible under the amended regulations applied in response to the advertisement and participated in the selection process. They have been duly considered by the Selection Committee constituted for the purpose. Except alleging that respondent no.3 was interested to promote respondent no.4, there is no specific allegation that during the course of selection, respondent no.3 exercised