CWP No.2933 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.2933 of 2002 Date of Decision:21.09 .2010 Dr.(Mrs.) Sangeeta ....Petitioner Vs. State of Punjab & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.D.S.Patwalia, Advocate, for the petitioner. Mr.Sarjit Singh Sr.Advocate, with Mr.Jagdev Singh, Advocate, for petitioner in CWP No.11152 of 2002. Ms.Shilpa Malhotra, Advocate, for petitioner in CWP No.2135 of 2003. Mr.N.S.Virk, Addl.A.G., Punjab. Mr.Amit Sharma, Advocate, for Mr.Arun Walia, Advocate, for respondent No.2. Mr.Ashok Aggarwal, Sr.Advocate, with Mr.Rajiv Raina, Advocate, --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? CWP No.2933 of 2002 2 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in Digest? Yes --- Vinod K.Sharma,J. This order shall dispose of: 1. CWP No.2933 of 2002 titled Dr.(Mrs.) Sangeeta Vs. State of Punjab & Ors. 2. CWP No.11152 of 2002 titled Jatinderpal Singh Vs. State of Punjab & Ors. and 3. CWP No.2135 of 2003 titled Dr.Amardeep Balu Vs. State of Punjab & Ors., as common questions of law and facts are involved in these writ petitions. For the sake of brevity, facts are being taken from CWP No.2933 of 2002. The petitioner by invoking the extraordinary writ jurisdiction of this court, seeks a writ in the nature of certiorari quashing the selection of respondents No.3 to 6 to the post of Aurvedic Medical Officer in the Municipal Corporation, Jalandhar, being totally illegal and arbitrary. The petitioner has further prayed for a writ in the nature of mandamus, directing the respondent/Municipal Corporation to make fresh selection and appointment to the post of Aurvedic Medical Officers, in accordance with law. Brief facts leading to the filing of this writ petition are, that the petitioner passed her BAMS from Guru Nanak Dev University and thereafter did her Doctorate in Medicines from India Board of Alternative Medicines, which was said to be equivalent to M.D. in Ayurvedic Medicines. The petitioner also participated in the Re-orientation Training CWP No.2933 of 2002 3 Course in Dayanand Ayurvedic College, Jalandhar. The cadre of Ayurvedic Medical Officer with Municipal Corporation, Jalandhar had 14 posts. Out of 14 posts in the cadre, 11 posts were lying vacant for about last 2 years. The Municipal Corporation Jalandhar by ad-hoc appointment filled three posts by appointing Shri Vipin Malhotra, son-in-law of Mr.V.M.Wadhwa, Private Secretary to Shri Balramji Dass Tandon, Minister of Local Bodies, Punjab, second post was filled by appointing one Samita Abrol, who was stated to be the niece of Hon'ble Sh.P.K.Dhumal, Chief Minister of Himachal Pradesh, third person who was appointed on ad-hoc basis, was a close relation of the Mayor of the Municipal Corporation, Ludhiana. The case of the petitioner was, that election to the Punjab Assembly was scheduled to be held in February, 2002 and in order to avoid election code being implemented, Municipal Corporation decided to push in their favouirtes as Ayurvedic Medical Officers and in order to achieve this, an advertisement was issued on 2.12.2001 inviting applications from the eligible candidates. In the advertisement, it was mentioned that interview would be conducted within 11 days i.e. on 13.2.2001 itself. The case of the petitioner is, that one of the persons who was favourite, and was to be selected, did not fall in this criteria and a corrigendum was issued on 6.12.2001 enhancing the age limit from 30 years to 35 years vide Annexure P.5. The case of the petitioner further was, that there are no Service Rules for the post of Ayurvedic Medical Officers, therefore, the Punjab CWP No.2933 of 2002 4 Civil Services (General and Common Conditions of Service) Rules 1994 (for short the Service Rules) were applicable. Rule 5 of the Rules deals with the age. However, much importance cannot be paid to this assertion of the petitioner, as admittedly the age limit for the appointment was enhanced by the State Government from 30 years to 35 years and the corrigendum was as per the instructions of the Government. The petitioner applied for the post of Ayurvedic Medical Officer and was interviewed by a Committee headed by Commissioner of Municipal Corporation along with members of the Committee. The case of the petitioner was, that interview was mere an eye wash as 150 candidates were interviewed on 13.12.2001, whereas 150 candidates were interviewed on 16.12.2001. The case of the petitioner was, that after the interview, result of selection was not displaced or announced at all, and the petitioner subsequently came to know that four persons were appointed as Ayurvedic Medical Officers i.e. respondents No. 3 to 6 i.e. Shri Vipin Malhotra son- in-law of Private Secretary of Minister of Local Bodies, Punjab, Ms.Samita Abrol, niece of Hon'ble Shri P.K.Dhumal, Chief Minister of Himachal Pradesh, Ms.Kritka Kalsia, daughter of Shri R.L.Kalsia, Commissioner, Municipal Corporation, Ludhiana, and a close relation of Mr.Sehgal, Mayor of the Municipal Corporation Jalandhar and one Raj Kumar. The petitioner challenged the selection of private respondents, primarily on the ground, that the selection was actuated by malice to favour CWP No.2933 of 2002 5 respondents No. 3 to 6 and that no criteria was adopted for selection. The selection of selected candidates, therefore, deserved to be set aside. It was also the case of the petitioner, that even though there were only 3 vacancies available, four vacancies were filled up by the Municipal Corporation. Writ petition was contested by the respondents by filing separate written statements. Municipal Corporation, the main contesting respondent in the written statement admitted, that 14 posts of Ayurvedic Medical Officers were in the cadre, and out of which 11 posts were already filled up and 3 posts were lying vacant. The stand taken was that at the time of interview 15 posts of Ayurvedic Medical Officers existed. However, no explanation was given as to how 15 posts of Ayurvedic Medical Officers came into existence. This seems to be an attempt to justify the appointment of four respondents as Ayurvedic Medical Officers. The allegations that the appointment made as a result of favouritism and nepotism was denied. It was also denied that these appointments were made at the behest of higher authorities. The stand taken was, that posts were duly advertised in the leading newspapers and names of eligible candidates were also called from District Employment Office, Jalandhar. That the interview was also fixed in the advertisement so that there was no necessity to send the letters of interview to eligible candidates. Stand of the petitioner, that age limit was extended to accommodate Vipin Malhotra, respondent was denied on the plea, that age CWP No.2933 of 2002 6 limit was enhanced as per the Government instructions. It was denied that 150 candidates were interviewed on 13.12.2002 and rest on 16.12.2002. The stand taken was that total number of candidates were 164 who were interviewed on 2 days. It was also pleaded that the result was displaced on 24.12.2002 on the notice board of the Municipal Corporation. It was denied for want of knowledge, that selected candidates were related to the persons mentioned in the petition. A positive stand taken was, that selection was carried out after adopting fair and proper procedure and that approval of competent authority i.e. the Commissioner was sought at every point of selection. In para No.12 of the written statement, the stand taken was, that well laid criteria was adopted by the Selection Committee for selection of the candidates, and that there was no necessity to publish its criteria. Its positive case in the written statement was, that the Commissioner, Municipal Corporation, Jalandhar laid down the criteria being the appointing authority who also constituted a Selection Committee. The stand of the respondents further was, that four vacancies were for reserved category. However, only two were reserved, as more than 50 per cent reservation was not permissible. On the pleadings referred to above, it was prayed, that the writ petition be dismissed. Private respondents, in addition to the stand taken by the Municipal Corporation, also raised preliminary objection qua misstatement of facts by the petitioner and claimed that selection was fair and proper. Mr.Sarjit Singh, learned senior counsel appearing on behalf of CWP No.2933 of 2002 7 petitioner in CWP No.11152 of 2002 contended, that as per the stand taken by the respondents if the 15 posts were to be filled up then it should have gone to backward class as it is admitted case, that in the roster 50 per cent posts are reserved for backward classes. The contention of the learned senior counsel, therefore, was that his client being a backward class candidate was entitled to be considered against 15 posts in Backward Class category. As the main ground of attack in this case was, that no criteria was adopted for selection of Aurvedic Medical Officer, and favourites were selected, record of the Municipal Corporation was called for. In the main file, it was recorded that out of 14 posts in the cadre of Aurvedic Medical Officers, 11 posts already stood filled, and the remaining were to be filled in. It was noted that at present one Scheduled Caste candidate is employed in the cadre, and that as per reservation policy there is back log of three Scheduled Caste candidates, two ex-servicemen, and one from sportsman. Advertisement was, therefore, suggested to be issued in daily newspaper, if approved. The criteria approved by the Commissioner of Municipal Corporation, Jalandhar, as disclosed in the file reads as under:- Criteria adopted for the selection of A.M.Os by the Corporation Commissioner, Jalandhar. Total Marks : 100 Marks Marks allotted for interview : 25 Marks CWP No.2933 of 2002 8 Minimum Qualification laid down on which applications were invited. Matric : 20 Marks Ist Div. : (i) 20 Marks IInd Div : (ii) 18 Marks IIIrd Div. : (iii) 16 Marks G.A.M.S./B.A.M.S. : 35 Marks. (Degree) (i) 75% : : 35 Nos. (ii) 60% to 75%: : 33 Nos. (iii) 50% to 60% : 30 Nos. (iv) Upto 40% to 50% : 28 Nos. Below 40% Marks cannot appear for interview. Higher Qualification: Higher Qualification/Course regarding subject matter of the Post. M.D. : 5 Marks Experiences : 5 Marks Experience in Govt. Job : One year to 3 years : 3 Marks Experience in Private One year to 5 years : 2 Marks Sports : 5 Marks International Level : 2 Marks National Level : 1 Marks CWP No.2933 of 2002 9 State Level : 1Mark N.C.C./E.C. : 1 Mark After handing over the file where criteria above mentioned was disclosed, the counsel for the Corporation submitted another file containing two pages, showing a note which reads as under:- “ It is reported that criteria for appointment of Ayurvedic Medical Officers adopted previously in Corporation after some correcting 'As Annexure 'A' attached for approval please. b) Criteria for reservation At present there are four vacant posts of Aurvedic Medical Officers which are going to be filled as per Manual of Pb.Govt. Instructions on reservation for Scheduled Caste and Backward Class the first post goes in favour of Scheduled Caste and rest of the three posts are to be filled up from amongst the candidates of General category. c) As per Govt. instructions circulated vide No.1.8/93- LGI/1001 dated 1.3.94 in case of backlog of vacancies in the case of Scheduled Caste (Annexure 'B') may be filled up from amongst the Scheduled Castes upto 45% of the accruing the vacancies being filled in a recruitment year. According to which 1.8 goes in favour of Scheduled Caste i.e. 2 posts out of 4 posts while making recruitment this point may also be kept into consideration. CWP No.2933 of 2002 10 Submitted for appropriate orders please. Sd/- Supdt E 11.12.2001 The above note of supdt (E) may please be perused, which is determining the criterion of the selection of AMOs in the Municipal Corporation, Jalandhar, placed at flag 'A' please, Submitted for approval and necessary directions please. Sd/ English Sd/- English 12.12. Worthy CC ADC Sd/- in English 12.12.01” Along with this note, Annexure A was attached which reads as under:- “Subject: Criteria to be adopted for the selection of Ayurvedic Medical Officers by the Municipal Corporation, Jalandhar interview to be held on 13.12.2001. Total Marks: 100 Marks 1. Marks allotted for interview: 30 Marks 2. GAMS/BAMS 50 Marks (Degree) 3. Higher qualification 10 Marks Higher qualification/course regarding subject matter of the post. (MD) 4. Experience 10 Marks Experience in Govt. job (up to five years) 2 marks for each year. CWP No.2933 of 2002 11 Annexure-A is not signed by any authority. Note is dated 12.12.2001. The result of selected candidates reads as under:- MUNICIPAL CORPORATION, JALANDHAR SELECTION CHART OF AYURVEDIC MEDICAL OFFICERS ON 21/24-12-2001 Sr. No Name of Candidates Category % of No. obtained in BAMS Marks obtained in BAMS (out of 50) No. of higher qualifica tion(out of 10) No. of experienc e (out of 10) No. for interview (out of 30) Total marks (out of 100) 1 2 3 4 5 6 7 8 9 52 Sh. Vipul Malhotra GENERAL 60.27% 30.13 -- 9 22 61.13 124 Smt.Sumita Abrol GENERAL 59.03% 29.51 -- 5 25.4 59.91 13 Smt.Karitika SC (Adharmi Waiting 68.15% 34.07 -- -- 19 53.07 12 Sh.Raj Kamal SC Balmiki 57.90% 28.95 -- -- 20 48.95 Mr.D.S.Patwalia, learned counsel appearing on behalf of the petitioner contended, that selection of the private respondents as Aurvedic Medical Officers deserves to be set aside as neither any criteria was framed nor result declared. The contention of the learned counsel for the petitioner was, that all the selected candidates, in fact, were earlier appointed on ad- hoc basis, and whole of process of selection was hurriedly carried out in order to adjust the private respondents because of their relationship with influential persons. The contention of the learned counsel for the petitioner was, that respondent No.3 Vipin Malhotra was son-in-law of Private Secretary of Minister In-charge, whereas Ms. Samita Abrol is niece of Hon'ble P.K.Dhumal, Ex-Chief Minister of Himachal Pradesh, whereas CWP No.2933 of 2002 12 respondent No.5 Smt.Kritka Kalsia, was daughter of Commissioner of Municipal Corporation, Ludhiana. This contention of the learned counsel for the petitioner cannot be accepted, as except for the wild allegations there is no other material on record in support of the relationship of the selected candidates with the influential persons as alleged, nor it is the case of the petitioners, that the influential persons had say in the selection of the candidates. Record produced by the Municipal Corporation shows, that criteria of selection was adopted. Learned counsel for the petitioner contended, that criteria laid down for selection was not adhered to and therefore, the selection stood vitiated. It was also the contention of the learned counsel for the petitioner, that the very fact that 167 persons were interviewed within 2 days, would show that the selection process followed was mere eye wash, to adjust the private respondents. Learned counsel for the petitioner further contended, that from the facts and circumstances and the result reproduced above would show, that the selection was the outcome of bias. In support of the contention, that the reasonableness of the bias can be drawn from the facts and circumstances of the case, reliance was placed on the judgment of Hon'ble Supreme Court in the case of S.Parthasarathi Vs. State of Andhra Pradesh (1974) 3 Supreme Court Cases 459, wherein Hon'ble Supreme Court was pleased to lay down, that there must be 'real likelihood' of bias, which means that there must be a CWP No.2933 of 2002 13 substantial possibility of bias. The court is to judge the matter as a reasonable man would judge of any matter in conduct of his own business. Reliance was also placed by the learned counsel for the petitioner, in support of this contention on the judgment of Hon'ble Supreme Court in the case of Ranjit Thakur Vs. Union of India & Ors. (1987) 4 SCC 611, wherein Hon'ble Supreme Court was pleased to lay down as under:- “ It is the essence of a judgment that it is made after due observance of the judicial process, that the court or tribunal passing it observe at least the minimal requirements of natural justice and is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial 'coram non-judice'. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and whether the authority concerned was likely to be disposed to decide the matter only in a particular way. What is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however honestly, “Am I biased?”; but to look at the mind of the party before him. In the present case having regard to the antecedent events, the participation of the officer concerned (respondent No.4) in the court-martial rendered the CWP No.2933 of 2002 14 proceedings coram non-judice.” The contention of the learned counsel for the petitioner, by placing reliance on these judgments was, that the result sheet reproduced above would show that as per the criteria 20 marks, were fixed for the matriculation examination i.e. 20 marks were to be given for First Division, 18 marks for IInd Division and 16 marks for IIIrd Division. Degree of GAMS/BAMS was to carry 35 marks, whereas for higher qualification of Medical Officer, 5 marks were fixed. Another five marks were fixed for experience and 5 marks for the sports. However, the result sheet of the selected candidates would show that this criteria was not followed, as Smt.Samita Abrol was given 25.4 marks in interview as against 25 marks allotted for interview. Similarly though for experience 5 marks were allotted, the selected candidates were given marks up to 9 for the experience. The contention was, that facts referred to above leave no manner of doubt, that the criteria fixed while deciding to advertise these posts, was not adhered to. This would be a prima facie proof, that the selection was biased in favour of selected candidates. Learned counsel appearing on behalf of the Municipal Corporation as well as private respondents, on the other hand contended, that no fault can be found with the selection as on 12.12.2001 i.e prior to the interview another criteria referred to above was laid down, and the selection was made strictly in terms of the criteria so fixed. It was also the contention of the learned counsel for the respondents, that the selection could not be CWP No.2933 of 2002 15 challenged, once a criteria was formulated by an authority authorised to do so. It was also the contention of the learned counsel for the respondents, that in case two views are possible, then the one upholding the selection is to be preferred. In support of this contention reliance was placed on the Full Bench judgment of this court in the case of Krishan Gopal & Ors. Vs. state of Haryana & Ors. 2010 (1) SCT 538. The contention of the learned counsel for the respondents further was, that it would not be equitable to disturb the selection of the private respondents, as they have been working since 2002 in pursuance to their selection, specially when nothing wrong can be noticed in their selection. This contention of the learned counsel for the respondents was controverted by the learned counsel appearing on behalf of the petitioner by placing reliance on the judgment of Hon'ble Supreme Court in the case of Ashok Kumar Sonkar Vs. Union of India & Ors. (2007) 4 Supreme Court Cases 54, wherein Hon'ble Supreme Court has been pleased to lay down as under:- “32. In P.D. Agrawal v. State Bank of India this court observed: SCC P.791, para 30) "30. The principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change." CWP No.2933 of 2002 16 It was further observed : (SCC pp.793-94, para 39) "39. Decision of this Court in S.L. Kapoor vs. Jagmohan, whereupon Mr. Rao placed strong reliance to contend that non-observance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change. In view of the decision of this Court in State Bank of Patiala & Ors. vs. S.K. Sharma and Rajendra Singh vs. State of M.P. the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula. [See Viveka Nand Sethi vs. Chairman, J. & K. Bank Ltd. and CWP No.2933 of 2002 17 State of U.P. vs. Neeraj Awasthi. See also Mohd. Sartaj vs. State of U.P." The principles of equity in a case of this nature, in our opinion, will have no role to play. Sympathy, as is well-known, should not be misplaced.” 34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity. 35. We have noticed hereinbefore that in making appointment of the appellant, the provisions of Articles 14 and 16 of the Constitution and statutory rules were not complied with. The appointment, therefore, was illegal and in that view of the matter, it would be wholly improper for us to invoke our equity jurisdiction.” Reliance in addition, was also placed on the judgment of Hon'ble Supreme Court in the case of Regional Manager, Central Bank of India Vs. Madhulika Guruprasad Dahir & Ors. (2008) 13 Supreme Court Cases 170, wherein Hon'ble Supreme Court was pleased to lay down as under:- “14. Similarly, the plea regarding rendering of services for a CWP No.2933 of 2002 18 long period has been considered and rejected in a series of decisions of this Court and we deem it unnecessary to launch on exhaustive dissertation on principles in this context. It would suffice to state that except in a few decisions, where the admission/appointment was not cancelled because of peculiar factual matrix obtaining therein, the consensus of judicial opinion is that equity, sympathy or generosity has no place where the original appointment rests on a false caste certificate. A person who enters the service by producing a false caste certificate and obtains appointment for the post meant for a Scheduled Caste or Scheduled Tribe or OBC, as the case may be, deprives a genuine candidate falling in either of the said categories, of appointment to that post, does not deserve any sympathy or indulgence of this Court. He who comes to the Court with a claim based on falsity and deception cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. 18. Having considered the matter in the