LPA No. 844 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No. 844 of 2011 (O&M) Date of decision 7 . 7.2011 Sangeeta Gupta . Appellant Versus . Punjab Public Service Commission .. Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Anurag Goyal, Advocate for the appellant Mr. Suvir Sehgal, Addl.AG Punjab 1. To be referred to the Reporter or not ? 2. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. 1. The instant appeal under Clause X of the Letters Patent is directed against judgement dated 16.3.2011 rendered by the learned Single Judge holding that the appellant is not entitled to appear in the PCS (Executive Branch) Examination and accordingly her petition was dismissed. 2. Brief facts of the case are that the petitioner is an employee of Post Graduate Institute of Medical Education and Research, Chandigarh. She has been working as Jr. Lab. Technician since 1995. An advertisement (P.1) was issued by the Punjab Public Service Commission (for brevity 'the Commission') in the press inviting applications for appointment to PCS (Executive Branch) and the last date for receipt of applications was 28.12.2009. As per Clause IV of the advertisement the age limit fixed for the candidates was 21 years to 35 years with relaxation for upper age limit for reserved categories as per government instructions and in respect of Punjab Government employees the upper age limit was relaxable upto LPA No. 844 of 2011 2 45 years provided they have rendered not less than 4 years continuous service under the Government. The petitioner was more than 35 years of age when she applied in response to the advertisement appearing in the press. She alongwith others filed CWP No. 20572 of 1999 titled as Ramnik Kaushal and others v. State of Punjab and others wherein this Court directed the respondents to consider the application filed by all such persons including the appellant and keep them in a separate group. Interim order dated 24.11.2009 passed in CWP No. 20572 of 2009 reads as under: “ Present: Mr. Sanjeev Sharma, Advocate for the petitioners. Notice of motion. On our asking Ms. Madhu Dayal, Additional Advocate General, Punjab, accept notice and prays for time to file counter affidavit. Counter affidavit be filed within 2 weeks from today. Response to counter affidavit, if any, be filed within 2 weeks thereafter. List again on 28.1.2010. In the meantime, it will be open to the petitioners to file their applications which would not be returned but kept separately subject to the order which may be passed in the instant writ petition. Sd/- Chief Justice 24.12.2009 Sd/- Judge “ 3. In pursuance of the interim directions issued by the Division Bench, the appellant submitted her application on a standard proforma complete in all respects alongwith requisite documents and fee. Eventually the writ LPA No. 844 of 2011 3 petition was dismissed on 22.4.2010 (P.3). It is appropriate to mention that the government took a decision on 9.11.2009 to relax the upper age for employees working with the Punjab Government or other State Government or Government of India upto the age of 45 years. The decision was conveyed to the Commission vide letter dated 12.11.2009. Accordingly, the Division Bench of this Court vide order dated 25.5.2010 allowed the writ petition holding that the Central Government employees would also be covered. Subsequently some other candidates who were also aspiring for seeking appointment to PCS (Executive Branch) filed CWP No. 19389 of 2009 titled as Gur Jai Pal Singh v. State of Punjab and others. This Court vide order dated 25.5.2010 held that upper age limit of government employees is 45 years instead of 35 years. As a sequel to the directions issued by this Court, the Commission published a corrigendum on 22.6.2010 (P.5) and amended clause 3(iii). Accordingly respondents called upon all those eligible government employees who did not apply earlier to submit their application form. Clause 5 of the corrigendum (P5) reads as under: “5. In view of the above, all those now eligible government employees who could not apply earlier may submit their applications on or before 14.7.2010 by 5.00 PM”. 4. The appellant represented to the respondents on 8.7.2010 for consideration of her application which had already been submitted as it was understood by the appellant that no fresh application was required to be submitted . However, the application earlier submitted by the appellant to the Commission- respondent was not considered and her candidature was rejected. It was at that stage that the appellant filed CWP No. 18346 LPA No. 844 of 2011 4 of 2010 which is relatable to the instant Letters Patent Appeal. While issuing notice of motion on 8.8.2010, this Court directed the Commission- respondent to consider the candidature of the appellant and permit her to compete for the post. However, her result was not to be declared which was subject to the final order to be passed by this Court. The aforesaid direction reads thus: “ Learned counsel for the petitioner contends that the candidature of the petitioner for competing for Punjab State Civil Services Combined Competitive Examination, 2009 has been rejected on the ground that the petitioner had earlier approached this Court. However, the Court had not given any relief to the petitioner. Learned counsel for the petitioner contends that in the context in which the claim of the petitioner was rejected by this Court, a Corrigendum has been issued by the respondents subsequent to the date of the judgement viz. on 22.6.2010. Under the circumstances, the petitioner cannot be held to be ineligible to compete. Notice of motion for 16.11.2010. In the meantime, the respondents are directed to consider the candidature of the petitioner and allow her to compete for the post. The result in regard to the petitioner would not be declared. It is made clear that this only an interim arrangement. The matter be listed before Registrar Judicial( Bench III) for competition of service and pleadings. Copy of the order be given dasti under the signatures of LPA No. 844 of 2011 5 the Court Reader. 8.10.2010 Sd/- Judge “ 5. However, the aforesaid petition was dismissed on 16.3.2010 vide impugned judgement. 6. The basic reason for the dismissal of the writ petition is that in pursuance of corrigendum dated 24.6.2010 (P.5) issued by the Commission- respondent , no fresh application was filed by the petitioner and the learned Single Judge has taken the view that failing to file fresh application on or before 14.7.2010 by 5.00 PM was not sufficient to deny the appellant an opportunity to appear in the examination. The aforesaid view is discernible from the following para of the impugned judgement which reads as under: “ The corrigendum further provided opportunity to eligible government employees to submit their applications on or before 14.7.2010 by 5 p.m. It is admitted case of the petitioner that she did not apply in response to the corrigendum. It is also admitted by the petitioner that she was approached by the Punjab Public Service Commission through telephone to make application, in view of the corrigendum. Specific averment is made in paragraph 10 of the writ petition in this regard Despite telephonic call, the petitioner failed to make fresh application within the prescribed time, rather the petitioner made a representation dated 8.7.2010 to the Punjab Public Service Commission asking for acceptance of earlier application. The petitioner also claimed to have send an E-mail to the Commission in this regard. A list of eligible candidates was displayed on the official website of the Public Service LPA No. 844 of 2011 6 Commission on 2.8.2010. Petitioner's name did not figure in the said list. The petitioner was informed vide Memo dated 25.8.2010 that her name has not been considered as she has not submitted any fresh application form pursuant to the corrigendum and in view of the dismissal of her writ petition. This Memo dated 25.8.2010 is under challenge in the present petition. The only contention of the petitioner is that once she had applied in response to the original advertisement, she was not required to make any fresh application and her previous application was required to be considered, in view of the interim order of the Court dated 24.12.2009. The Commission in its counter affidavit filed by its Secretary reiterated the grounds contained in the impugned order. It has been further contended that as per the original advertisement, the petitioner was ineligible. It was only pursuance to subsequent decision by the Government and in view of the directions of the High Court dated 25.5.2010 in CWP No.19389 of 2009 that upper age limit was enhanced to 45 years for the Punjab Government employees and Central Government employees for which fresh applications were invited from this category of candidates through the medium of corrigendum upto 14.7.2010. It is further averred that the petitioner was even informed on telephone but she did not apply.” 7. The argument of the appellant that she had originally applied within the stipulated period was rejected because she was ineligible at that time and in pursuance of the interim directions, she was permitted to appear in LPA No. 844 of 2011 7 the examination. Eventually with the dismissal of her writ petition, respondent rejected her claim. In view of the subsequent decision of the State Government relaxing the upper age limit upto 45 years in respect of all category of government employees including the Central Government employees a corrigendum (P.5) was issued providing an opportunity to such government employees who became eligible by virtue of the benefit of relaxation in age criteria. The petitioner was even informed but she did not apply. 8. When the appeal came up for consideration it was submitted that the appellant had requested that her application be treated to be an application in terms of the corrigendum (P5). However, her request has not been accepted as the earlier application was not treated to be a valid application. The Motion Bench noticed the contention of the appellant that at best it could only be an irregularity and not such an illegality which would result into an extreme consequence of cancellation of her candidature. When the matter came up for further consideration on 2.6.2011, the Commission- respondent stated in para 4 of the letter (Mark 'A') that the appellant had appeared in the preliminary examination but her result was not declared which has been kept in a sealed cover. Accordingly a direction was issued to produce the sealed cover. On June 3,2011 the sealed cover could not be produced and we proceeded to pass the following order: “ Yesterday, we passed an order directing the Punjab Public Service Commission, Patiala, to produce the sealed cover containing the result of the appellant in respect of Punjab State Civil Services Combined Competitive Preliminary LPA No. 844 of 2011 8 Examination – 2009 held on 19.12.2010. However, some difficulty has been expressed in producing the sealed cover for the reason that the Secretary Examination S. Inderjit Singh Sandhu, IAS, is on leave on account of demise of a close relative and in his absence it would not be possible to produce the sealed cover. Keeping in view the aforesaid circumstance, we proceed to consider the request made by the appellant to grant her permission to appear in the main examination, which is scheduled for 24.6.2011. However, she has to fill up Application IV Form for appearing in the main examination, which is supplied by the PPSC. The aforesaid Form may be supplied by the Secretary, PPSC to the appellant within one week and she shall fill it up Thereafter, she shall return that Form to the PPSC within three days. The petitioner shall be permitted to take the main examination provisionally, which is scheduled for 24.6.2011. It is made clear that the provisional appearance of the appellant in the examination shall not confer any equitable or any other right. These orders are provisional and subject to further orders, which may be required to be passed after the declaration of the preliminary examination result held on 19.12.2010 and subject to determination of her rights to appear in the final examination. List again on 7.7.2011. A copy of the order be given to learned counsel for the LPA No. 844 of 2011 9 appellant under the signatures of the Bench Secretary, today itself.” 9. In pursuance of the aforesaid interim order, the appellant was to appear in the examination which was scheduled to be held on 24.6.2011. However, for the reasons best known to the Commission- respondent, the examination has been postponed but no date has yet been fixed. However, the sealed cover has been produced before us . At our directions, the sealed cover has been opened by the Bench Secretary. The cut off percentage has been found to be 290 marks and a perusal of the result prepared by the Commission- respondent would show that the appellant had secured 338.596 marks. Her name appears at serial No. 8329 under Roll No. 1220808329 which is far above the 290 marks. Accordingly she has cleared the preliminary test. 10. Mr. Anurag Goyal, learned counsel for the appellant has argued that Clause 5 of the corrigendum (P.5) dated 26.2.2010 would necessarily mean that the government employees who have become eligible but could not apply earlier could submit their applications. In other words, it would imply that the government employees who had applied earlier may not file any fresh application. According to the learned counsel, the learned Single Judge has mis-interpreted the corrigendum (P.5) as it did not reveal the class of candidates who were required to apply afresh in pursuance of the order passed by this Court. Even on equity, the learned counsel has pointed out that for such a small lapse on the part of the appellant should not lead to the extreme action of canceling her candidature. 11. Mr. Suvir Sehgal, learned State Counsel has argued that on the LPA No. 844 of 2011 10 language of corrigendum (P.5), no such intention is revealed that those who had earlier applied were not required to apply afresh. According to the learned counsel, the appellant is totally mis-reading the corrigendum. 12. After hearing learned counsel for the parties, perusing the paper book as well as the impugned judgement delivered by the learned Single Judge, we are of the view that it would be necessary to remember one thing that not only the Punjab Government accepted the age of 45 years for State Government employees as well as the Central Government employees, even this Court has found that the benefit of age relaxation to the extent of 45 years should be extended to all such employees. This Court has issued directions on 25.5.2010 in CWP No. 19389 of 2009. Accordingly a corrigendum dated 22.6.2010 was issued for implementation of the directions. It would be interesting to read the corrigendum (P.5) which is as under: “ The Hon'ble Punjab and Haryana High Court,Chandigarh in CWP No. 19389 of 2009 has ordered on 25.5.2010 that all Govt. employees are eligible for the Punjab State Civil Services Combined Competitive Examination, 2009. 2. Therefore, this corrigendum is being issued and may be read with Advertisement no.4 published on 28.11.2009 in various newspapers. 3(a)All terms and conditions except the clause 3(iii) of Advertisement No.4 dated 28.11.2009 shall remain the same. (b) However, the clause 3(iii) should now be read as under: “ The upper age limit for all Govt. employees will be LPA No. 844 of 2011 11 relaxable upto 45 years as on 1.1.2009.” 4. The Brochure/OMR application forms are available at the reception counter of the Punjab Public Service Commission, Baradari Gardens, Patiala. 5. In view of the above, all those now eligible Government employees who could not apply earlier may submit their applications on or before 14.7.2010 by 5.00 pm 6. Due to the reasons mentioned above, the scheduled date for the Preliminary Examination, earlier announced to be held on 11th of July, 2010 has to be postponed. The fresh date for the same shall be conveyed in due course of time. 22.6.2010 Sd/-Secretary, Punjab Public Service Commission,Patiala.” 13. A perusal of the corrigendum (P5) would show that upper age limit for all government employees has been relaxed upto the age of 45 years as on 1.1.2009. In para 5 of the corrigendum it has been categorically stated that all those now eligible government employees who could not apply earlier may submit their applications on or before 14.7.2010. It is true that the appellant did not submit her application afresh but made a request that her earlier application may be treated to have been submitted in pursuance to the corrigendum dated 22.6.2010 (P.5) as she was eligible for appearing in the PCS (Executive Branch) Examination and on the cut off date her age was less than 45 years. In any case it is a procedural lapse on the part of the appellant even if it is presumed that fresh application was required to be submitted by her. Such a procedural lapse cannot lead to the extreme step of canceling her candidature particularly when she has secured adequate marks in the preliminary examination and is eminently qualified to appear in the LPA No. 844 of 2011 12 main examination. It is a different matter that the PCS (Executive Branch) Examination which was scheduled to be held on 24.6.2011 has now been deferred. However, the appellant shall be entitled to take the examination if it is held on any deferred date in pursuance to advertisement No. 4 dated 26.11.2009 (P.1) and the corrigendum dated 22.6.2010 (P.5). 14. In view of the above, the writ petition filed by the appellant succeeds and the memo dated 25.8.2010 (P.10) is hereby set aside. Let her application submitted by her earlier be treated as the one filed under the corrigendum (P.5). The impugned judgement is also set aside and the appellant is held entitled to take the examination if it is held in pursuance of advertisement dated 26.11.2009 (P.1) read with corrigendum dated 22.6.2010 (P.5). 15. The appeal stands disposed of in the aforesaid terms. 16. The Bench Secretary is directed to re-seal the sealed cover and hand it over to the learned State counsel. (M.M.Kumar) Judge (Gurdev Singh) 7.7 .2011 Judge okg