304 I2 CWP No19960 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No19960 of 2009 DATE OF DECISIONl October 04 2011 Om Parkash Petltioner versus 1 State of Punjab and others 0 espondents 0 I C5 CORAM HONBLE MRS JUSTICE DAYA CHAUDHARY I Present MrePKeGoklaneYl Advocate for the petitioner Z MrleSPanwar Additional Advocate General Punjab MrSanjay Majithia Senior Advocate r with MrJashan Preet Singh Advocate for respondent No MrlLSaggar Senior Advocate with 0 MrJDhaliwal Advocate for Z respondent Noe3 m 7 Z DAYA CHAUDHARYJe tl This petition has been filed under Articles 2261227 of the Constitution of India for issuance of writ in the nature of Certiorari for quashing the proceedings of the Establishment Committee dated 12A 2008 Annexure P A l vide which respondent No 3 was selected to the post of Deputy Secretary on the Rashmi 2014.04.21 11: 07 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 305 CWP No19960 of 2009 2 ground that the vacancy occurred prior to the amendment of the Rule would be governed by unamended Rule and not by the amended Rule The sole argument of learned counsel for the petitioner 1S that the amendment has been made totally ln a illegal and ln an arbitrary manner with malafide intention just to give benefit to respondent C4 Noe3e The amendment has been made which was suitable 0 to respondent no 0 Learned counsel for the petitioner submits C5 that the post of Deputy Secretary fell vacant in the year 2007 and approval was granted by the Government Z on 182008 for filling up said post of Deputy 0 Secretary but the Rule has been amended from I 302008 which was notified on 202008 Z Subsequently after amendment posts were advertised r0 and name of respondent No3 was recommended by the m Z Establishment Committee without taking approval of respondent Board As per amended Rule the special preference was to 10e given to the candidates having degree of MBA ln Personnel Management The experlence was also amended as earlier the requirement of experlence was 6 years ln a supervlsory capacity whereasp as per amendment 8 years regular servlce experlence ln responsible Rashmi 2014.04.21 11: 07 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 306 CWP No19960 of 2009 3 POSltion in governmentdepartmentIBoardl Universityl Corporation was there The qualification as well as experience was amended as per convenience of respondent No3 as it was suitable to him only Learned counsel for the petitioner relies upon judgments ln Gopal Dass v Punjab State Electricity Board Patiala 199411 SCT 171 Jagdish Chander v l The State of Haryana 1994 SCT 29 and Arjun Singh 0 Rathore 6 Ors V BeNChaturvedi 6 Ors 2008 RSJ 0 I 212 0 After issuance of notice of motion reply I was filed by the respondents including the selected Z candidate Janak Raj Mehrok r Learned counsel for the respondent submits I that the present petition has become infructuous as 0 Z the petitioner has been appointed on higher post and Cll no cause of action remains to the petitioner now at wno this stage Z Learned counsel for the petitloner on Qm instructlons from petitioner who is present in the Court submits that the petitioner relinquishes his right to the post but challenges the selectionlappointment of respondent No3 MrMeLSaggar learned senlor counsel appearingfor respondent No3 has controverted the Rashmi 2014.04.21 11: 07 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 307 CWPNo19960 of 2009 4 statement made by learned counsel for the petitioner and submits that only the qualification under the unamended Rule was supplemented just to get the better candidates He further submits that the petitioner also applied for the post of Deputy Secretary but he was found ineligible and one candidate namely SmtSantosh Gupta was selected as Deputy Secretary The petitioner was eligible for 0 the post of Assistant Secretary and he was selected 0 I to that post by the same Selection Committee and he 9 has joined as Assistant Secretary on 152008 He I further submits that an lnquiry against the Z eligibility of petitioner for the post of Deputy r Secretary was conducted on the basis of complaint and I it was found in the inquiry that the petitioner did Z not fulfil the basic qualification for the post of C Deputy Secretary as required ln the advertisement w This petition has been filed with ulterior motive Z just to harass respondent No3 He has also placed on Qm record the inquiry report wherein it has mentioned that the petitioner failed to produce the documents pertaining to his qualification of MBA degree which was the requirement and because of that reason he was not selected on the post of Deputy Secretary as he Rashmi 2014.04.21 11: 07 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 308 CWP No19960 of 2009 5 did not fulfil the conditions for the post of Deputy Secretary Learned counsel for respondent No2 has raised a preliminary objection by stating that Slnce the petitioner has participated ln the selection process and he has no right to challenge the selection of respondent No3 In support of his L contention learned counsel for respondent No2 0 relies upon the judgment rendered 111 Dhananjay Malik 0 I and Ors v State of Uttaranchal and Orse AIR 2008 C5 SupremeCourt 1913 I Learned counsel for respondent No2 also Z raised an objection with regard to filing of the CC petitlon as the same has been filed with unexplained I delay without giving any explanation of delay In C Z support of his contention learned counsel relies CO upon the judgment ln Amlan Jyoti Borooah v State of m Assam 6 Ors 2009 LH SCI 2090 He also submits Z Qe that matter relating to selection and abolition of postr prescribing the mode of recruitment and qualifications the criteria of selection evaluation of service record of the employee fall within the exclusive domain of the executive and the same cannot be interfered The petitioner was appointed on the post of Assistant Secretary and he accepted the post Rashmi 2014.04.21 11: 07 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 309 CWP No19960 of 2009 6 without any protest and after lapse of more than 20 months of joining on the higher post the present petition has been filed The petitioner has also not filed any representation to the respondent authority and he has not availed the alternative remedy of appeal Heard the arguments of learned counsel for the parties and have also perused the documents 0 available on the filed 0 I The petitioner has relinquished his claim on 40 the post of Deputy Secretary and he has already been promotedto the post of Joint Secretary which is Z 2 higher post Lr There were total seven candidates who were I selected by the Establishment Committee Only Z selection of respondentNo3 has been challenged 00 without impleading the other selected candidates as ma No3 and one SmtSantosh Gupta Z party were selected as Deputy Secretary and five Assistant Secretaries including the petitioner were selected as Assistant Secretaries Approval has been given by respondentBoard to their appointment lIl the meeting held on 1352008 All the seven persons who were selected have been confirmed on 22 A2009 on completionof their period of probation vide letter j Rashmi 2014.04.21 11: 07 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 810 CWP No19960 of 2009 11 dated 222009 Moreover no allegation of favouritism has been alleged against the Selection Committee Since the petitioner himself was a candidate for the post of Deputy Secretary and he has participated 111 the selection process and now to challenge the selectionlappointment of respondent No3 1S not justified ln Vlew of judgment ln 0 Dhananjay Maliks case lpral wherein it was held 0 I that the challenge cannot be made by a candidate who C5 has participated ln the selection process without any I demur Z Keeplng ln view the stand of petitioner for C relinquishing his claim on the post and the delay lIl I filing the petition it appears to be a luxurious Z litigation as the petitioner has already been ClO appointed on the higher post and after participatlng 7 the selection process for the post 111 dispute when Z the selected candidate has completed even his probation period and has been confirmed In Vlew of the facts and law position explained above there is no merit in the present petition and the same is dismissed October 04 2011 DAYA CHAUDHARYI KD JUDGE r J V C V 11 Rashmi 2014.04.21 11: 07 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document