IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 2470 of 2008 (OA No. 580/1995) Judgment reserved on : 3.3.2010 Date of decision : 8. 3. 2010. Gajinder Sharma …Petitioner. Versus State of H.P. and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. B.C.Negi, Advocate. For the Respondents : Mr. P.M.Negi Deputy Advocate General for respondents No. 1 & 2. Mr. Shrawan Dogra, Advocate for respondent No.3. None for respondents No. 4 to 8. Mr. Dilip Sharma, Advocate for respondent No.9. Kuldip Singh, Judge The petitioner in the petition has prayed that the appointments of respondents No.4 to 9 made through back door method may be quashed and set-aside, respondents No.1 to 3 may be directed not to make the appointments except in accordance with law, the appropriate authorities may be directed to grant sanction for the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 prosecution of the guilty persons and guilty persons may be punished in accordance with law. The other prayers made in the petition are incidental. 2. The case of the petitioner is that he is a sportsman of national level, his right has been ignored while appointing respondents No.4 to 9, though, he has better merit than respondents No. 4 to 9. it is the case of the petitioner that every sportsman of Himachal Pradesh should get employment in accordance with his qualification, rules and prescribed procedure. The genuine rights of the sportsmen for public employment are not being properly considered and accepted by the respondent-State, therefore, the petitioner has filed the petition. 3. The petitioner has played All India Inter-University Boxing Championship held at Punjab University, Chandigarh in January, 1987, he got second position in All India Inter University Boxing when he represented the Himachal Pradesh University on 18.2.1989. The petitioner has also won bronze medal in Boxing in National All India Boxing Championship, held from 3.6.1987 to 7.6.1987. The petitioner has played water-polo from Punjab University Sports Tournament on 20.9.1986. The petitioner has also participated in wrestling in Punjab University Sports Tournament on 17.10.1986. The petitioner has secured second position in wrestling in Himachal Pradesh University in 1988-89. The petitioner has done B.A. from Punjab University in April, 1987 and has obtained degree in law from H.P.University. 4. The respondents No.1 to 3 without advertising the vacancies have recruited respondents No.4 to 9 on the posts of Assistant Sub Inspectors and Inspectors in Police Department in Himachal Pradesh on chits issued by respondent No.3. The 3 concurrence or approval of the Finance Department was also not obtained by the respondents No.1 to 3 before filling these posts. The names of the persons, who have been appointed against these posts were not sponsored by the Employment Exchange. It has been alleged that no written test, interview was held or conducted for these posts by respondents No. 1, 2. Some of the appointees against these posts were even not having the requisite minimum eligibility qualification. The petitioner has got better academic record and better record in sports. The petitioner has played Boxing, Water Polo and Wrestling whereas respondents No.4 to 9 have played only one game. 5. It has been alleged that reply to question (c ) of Annexure P-8 indicates that the appointments of respondents No. 4 to 9 have been made without calling their names from Employment Exchanges and without following any legally required procedure in this behalf. The appointments of respondents No.4 to 9 were made on the basis of recommendations made by respondent No.3, whereas the petitioner and similarly situated persons are waiting for their turn to be absorbed in the public employment on the basis of their merit. It has been alleged that no test, interview was held or conducted while making illegal appointments of respondents No.4 to 9. The contents of Annexure P-8 further indicates that most of the appointments were made from District Shimla and more particularly from Rampur and Rohru which are represented by respondent No.3. It has been alleged that several other persons in addition to respondents No.4 to 9 were similarly appointed in various Departments without following due procedure. There are lacs of persons who have got their names registered in the Employment Exchanges in the State and are waiting their turn for being appointed 4 even on daily-rate basis but respondent No.3 is recruiting, appointing persons in various departments through back door method without following the norms and procedure. The respondent No.6 is only matriculate whereas the minimum eligibility qualification for the post of Assistant Sub Inspector is graduate. The provisions of Employment Exchanges (Compulsory Notification of Vacancies) Act, have been flouted by respondents No.1 to 3. In addition, instructions dated 17.1.1977 Annexure P-9 and notification dated 26.12.1988 Annexure P-10 issued by respondent No.1, provide that all vacancies are to be filled in through Employment Exchanges. The policy of reservation in the matter of Scheduled Castes, Scheduled Tribes and Backward Classes has been completely ignored by respondents No.1 to 3. On these pleas, the petition has been filed. The petition was filed in the Himachal Pradesh Administrative Tribunal which was lateron abolished and the case was transferred to this Court. 6. The respondents No.1 to 3 have filed reply in which preliminary submissions have been made that the petition is not maintainable as petitioner is not an aggrieved person. The petitioner had never applied for the post of Assistant Sub Inspector and Inspector in the Police Department against sports quota, the petitioner has no locus standi to challenge the appointments of respondents No.4 to 9. The appointments against sports quota are made on the basis of applications received by the appointing authority or the higher authority from sportsmen belonging to categories mentioned in para-2 of office memorandum dated 28.12.1972 Annexure R-I fulfilling the requisite qualifications, education, age etc. as laid down in the relevant Recruitment and Promotion Rules for the post, service in question. 5 There is no requirement that the post in question should be advertised and candidates sponsored through Employment Exchanges should be considered. The sportsmen being a class in themselves and in order to encourage government servants to participate in sports activities with a view to improve their physical fitness and promoting qualities of sportsmanship and team spirit among them, the Government after considering the matter and in order to provide facilities to meritorious sportsmen, decided that the appointment of sportsmen to Class-III and Class-IV posts is made in relaxation of the Employment Exchange procedure. The appointments of respondents No.4 to 9 have been made in accordance with the guidelines made under Annexure R-I. 7. The Government is bound to consider the application of every individual for any post, service under the State Government against sports quota and in case there are posts available and subject to criteria laid down in Annexure R-I and also educational and other qualifications laid down in the Recruitment and Promotion Rules, the appointment of suitable candidate can be made according to the prescribed procedure, rules. The appointments of respondents No.4 to 9 have been made in accordance with the rules as well as the instructions of the Government from time to time against sports quota. The petitioner at no point of time had applied for appointment against sports quota in the Police Department to respondents No.1 and 2 and as such, his case could not be considered alongwith respondents No.4 to 9. It has been alleged that in view of instructions contained in Annexure R-I and R-II, there was no need to get the names of sportsmen sponsored through Employment Exchanges. It has been denied that any chits were issued in respect of the appointments as alleged. The 6 candidates who have been given appointments belong to different Districts of State of Himachal Pradesh. The respondents No.4 to 9 hale from different Districts of the State. There is no reservation provided or prescribed for Scheduled Castes, Scheduled Tribes and Other categories against sports quota. Only distinguished sportsmen are recruited against sports quota. The respondents No.1 to 3 ultimately have prayed for dismissal of the petition. 8. The respondents No.5, 7 and 8 have also contested the petition by filing joint reply. They have adopted the reply filed by on behalf of respondents No.1 to 3. The respondent No.9 has filed separate reply. He has submitted that he is Graduate and an outstanding sportsman. In view of his outstanding performance in Volley Ball, the Central Industrial Security Force (Ministry of Home Affairs), Government of India, appointed him against the post of Assistant Sub-Inspector / Executive (Volley Ball). The outstanding sportsmen are picked up from the field on the basis of their actual performance and are not subjected to formal recruitment procedure like interviews pursuant to formal advertisement etc. He had not submitted any application to the Deputy Inspector General of Central Industrial Security Force dealing sports. He was picked up by the said organization as a result of his performance in the field. After informally seeking his willingness, he was offered appointment as Assistant Sub Inspector of Police / Executive (Volley Ball). 9. It has been alleged by him that he is permanent resident of Village and P.O. Dhar, Tehsil Jubbal, District Shimla. He came to know that posts were available in the Police Department of Himachal Pradesh for being filled up from amongst outstanding sportsmen, 7 therefore, he submitted an application in August, 1993 to the Director General of Police wherein he gave his bio-data. He requested for giving him appointment in the rank of Sub Inspector of Police. The Director General of Police vide order dated 15.9.1993 approved the replying respondent for appointment as Assistant Sub Inspector of Police against 1% quota reserved for outstanding sportsmen. He submitted his resignation to his previous employer on 1.11.1993 which was accepted on 17.1.1994. The respondent No.9 reported for duty on 28.1.1994 as Assistant Sub Inspector pursuant to offer of appointment dated 15.9.1993 read with letter dated 1.10.1993. 10. On merits, plea of limitation has been taken. It has been submitted that respondent No.9 was rightly offered appointment as per policy of the State. The respondent No.9 had applied for present employment during August 1993 when State was under President’s Rule. He was even approved for appointment on 15.9.1993 again during the President’s Rule. He has denied that he was appointed on the basis of recommendatory letter of respondent No.3. He has also denied that his entry in the service is through back door. He has submitted that he has been appointed in accordance with law. The issue of reservation for Scheduled Castes and Scheduled Tribes cannot be invoked while making recruitments against the posts reserved for outstanding sportsmen because to insist upon such a reservation would defeat the very purpose of recruiting outstanding sportsmen. He has denied that any illegal favour was extended to him for his appointment. The allegation of issuance of any chit by respondent No.3 in favour of respondent No.9 is baseless. The respondent No.9 has prayed for dismissal of the petition. 8 11. I have heard the learned counsel for the parties. The learned counsel appearing on behalf of the respondents have taken preliminary objection that petitioner has not prayed any specific relief for himself in the petition, rather perusal of petition indicates that petitioner himself has pleaded in para 6 (ii) of the petition that the petition filed by him is a public interest litigation. It has been submitted that in view of law laid down by the Apex Court, the petitioner is not entitled to file public interest litigation in service matter and, therefore, petition is not maintainable. 12. According to learned counsel for the petitioner the petitioner is an aggrieved person. He has submitted that the substance of the petition is that respondents No.1 and 2 have not followed the procedure prescribed in law for appointment of respondents No.4 to 9 on public employment. The allegations are that on the recommendatory chits of respondent No.3, respondents No.4 to 9 have been appointed through back door on the posts of Assistant Sub Inspectors and Inspectors in Police Department. In support of his submissions that the petition is maintainable, the learned counsel for the petitioner has relied Arti Gupta Vs. State of Himachal Pradesh and others 1997 (2) S.L.R. 716 and Dr. Duryodhan Sahu and others Vs. Jitendra Kumar Mishra and others (1998) 7 SCC 273. 13. The petitioner in para 6 (ii) has pleaded that genuine rights of the sportsmen so far as their right in public employment is concerned, are not being properly considered and accepted by the respondent-State, therefore, he has filed the Original Application as a public interest litigation. 9 14. In Arti Gupta (Supra) the following questions were referred to the Full Bench of five Judges for consideration : 1. Whether the State Administrative Tribunals constituted under the Administrative Tribunals Act, 1985 have jurisdiction to deal with the matters, which arise before the actual appointment of any person to a civil post? 2. Whether the petitioners herein, who had not even applied for the post in question can move the Administrative Tribunal for appropriate reliefs on complaint as against the action taken by the respondents in the matter of selection and recruitment? The Full Bench in paras 44, 45 has held as follows:- “44. The only other question to be considered is whether the petitioners in CWP No. 1665/96 who have not even applied for the post in question can move the Tribunal for reliefs. On principle, the question has to be answered only in the affirmative. The language used in the provisions of the Act clearly shows that the jurisdiction of the Tribunal is in relation to the matters set out in Sections 14 and 15 and it does not depend upon the status or otherwise of the applicant before it. Even an utter stranger can move the Tribunal with reference to the matters set out in those sections. The wording of Section 28 of the Act, which excludes the jurisdiction of the High Court is also to the same effect. In fact, a question arose before the High Court of Madras in Thanga Maruthamuthu vs. Government of Tamilnadu and others, Writ Appeal No. 116/96, whether a public interest litigation could be dealt with by the Administrative Tribunal. A learned Single Judge of that Court held that in public interest litigation, the Tribunal will have no jurisdiction and it is only the High Court which can entertain such petitions. That judgment was reversed by a Division Bench of that Court vide its judgment dated 6.3.1996. The Division Bench said: “That contention that it is a public interest litigation and the relief sought is the one for a writ of Quo Warranto, which cannot be granted by the Central Administrative Tribunal, therefore, the petition under Article 226 of the constitution of India can be maintained, is only stated to be rejected. The said contention fails to take note of the fact that the substance of the 10 relief sought for by the petitioner is to set aside the order of the State Government extending the services of the 4th respondent and thereby preventing the 4th respondent from functioning as a member of the Indian Administrative Service. The fact that it is a public interest litigation will not clothe this court with the jurisdiction to hear and decide the Writ Petition when the very subject matter of the writ petition is excluded from the purview of the jurisdiction of this Court under Article 226 of the Constitution.” 45. With respect we agree with the view expressed by the Division Bench as above, E. Answer to the Reference.” The Full Bench answered the questions in para 46 of the report as follows:- “In the result, our answers to the two questions referred to us are in the affirmative. In other words, we hold that the State Administrative Tribunal constituted under the Act has jurisdiction to deal with the matters, which arise before the actual appointment of any person to a civil post but relate to recruitment or matters concerning recruitment. We also hold that even persons, who had not applied for the post in question can move the Administrative Tribunal for appropriate reliefs on complaint as against the action taken by the concerned authority in the matter of selection and recruitment.” 15. In Dr. Duryodhan Sahu (supra), the Supreme Court has held as follows:- “The constitution of Administrative Tribunals was necessitated because of the large pendency of cases relating to service matters in various courts in the country. It was expected that the setting up of Administrative Tribunals to deal exclusively in service matters would go a long way in not only reducing the burden of the courts but also provide to the persons covered by the Tribunals speedy relief in respect of their grievances. The basic idea as evident from the various provisions of the Act is that the Tribunal should quickly redress the grievances in relation to service matters. The definition of “service matters” found in Section 3(q) shows that in relation to a person, the expression means all service matters relating to the conditions of his service. The significance of the word “his” cannot be ignored. 11 Section 3(b) defines the word “application” as an application made under Section 19. The latter section refers to “person aggrieved”. In order to bring a matter before the Tribunal, an application has to be made and the same can be made only by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. We have already seen that the word “order” has been defined in the explanation to sub-section (1) of Section 19 so that all matters referred to in Section 3(q) as service matters could be brought before the Tribunal. If in that context Sections 14 and 15 are read, there is no doubt that a total stranger to the service concerned cannot make an application before the Tribunal. If public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal, the very object of speedy disposal of service matters would get defeated.” 16. The respondents are mainly relying on Annexures R-I and R-II for giving employment to respondents No.4 to 9 under sports quota. The stand of the respondents is that some reservation has been made in favour of sportsmen and they are given employment by the employer on the basis of their applications submitted to the concerned authority and for recruitment to the sportsmen applications are necessarily not to be made through Employment Exchanges. It has been stated that petitioner never applied to the concerned authority as per Annexure R-I, Annexure R-II and therefore, he is not an aggrieved person. The petition filed by him in public interest is not permissible in service matters. The petitioner has not made any prayer for himself in the petition which further indicates that petitioner is espousing the cause of others in the petition. It has been submitted that in the facts and circumstances of the case the petitioner is a stranger and therefore he is not entitled to file petition. 17. The learned counsel for the respondents have also relied on Dr. Duryodhan Sahu (Supra). They have submitted that the Apex 12 Court in para 18 of the report has held that if public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal, the very object of speedy disposal of the service matters would get defeated. In other words, the submission of learned counsel for the respondents is that even before erstwhile Tribunal in view of Dr. Duryodhan Sahu (supra) petition filed by a total stranger in the form of public interest litigation was not maintainable. 18. In Dr. B.Singh Vs. Union of India and others (2004) 3 SCC 363, the Supreme Court has held as follows:- “As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that courts are flooded with a large number of so-called public interest litigations, whereas only a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, courts at times are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr) v. Jitendra Kumar Mishra (1998) 7 SCC 273 this Court held that in service matters PILs should not be entertained, the inflow of the so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. This tendency is being slowly permitted to percolate for setting in motion criminal law jurisdiction, often unjustifiably just for gaining publicity and giving adverse publicity to their opponents. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Apart from the sinister manner, if any, of getting such copies, the real brain or force behind such cases would get exposed to find 13 out whether it was a bona fide venture. Whenever such frivolous pleas are taken to explain possession, the court should do well not only to dismiss the petitions but also to impose exemplary costs, as it prima facie gives impression about oblique motives involved, and in most cases shows proxy litigation. Where the petitioner has not even a remote link with the issues involved, it becomes imperative for the court to lift the veil and uncover the real purpose of the petition and the real person behind it. It would be desirable for the courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the courts.” 19. The Supreme Court in Dattaraj Nathuji Thaware Vs. State of Maharashtra and others (2005) 1 SCC 590, after noticing Dr. Duryodhan Sahu has followed Dr. B.Singh (supra). The Supreme Court in Gurpal Singh vs. State of Punjab and others (2005) 5 SCC 136, where the appointment of appellant as Auction Recorder of the Market committee, Patran was held invalid and illegal by the High Court. The said order came to be passed on the basis of writ petition filed by respondent No.4 as public interest litigation. It was contended on behalf of respondent No.4 in that case that notwithstanding the clear direction of the High Court to start the process of selection afresh within four months, nothing has been done and this amounts to contempt of Court. The Supreme Court in para 12 of the judgment has held as follows:- “When a particular person is the object and target of a petition styled as PIL, the court has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object. Since in service matters public interest litigation cannot be filed there is no scope for taking action for contempt, particularly, when the petition is itself not maintainable. In any event, by order dated 15.4.2002 this Court had stayed operation of the High Court’s order.” 14 20. In the case in hand, it has come on record in the reply of respondent