CWP No.3206 of 2007 -1- In the High Court of Punjab and Haryana at Chandigarh. Date of decision:10.03.2009 Sukhwinder Kaur Saroya ... Petitioner Versus State of Punjab and others ... Respondents. CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Mukul Aggarwal, Advocate, for the petitioner. Mr.BS Chahal, DAG, Punjab, for respondent No.1. Mr.Arun Palli,Senior Advocate, with Mr. Jai Bhagwan,Advocate, for respondent Nos.2 and 3. Mr.RA Ram,Senior Advocate, with Mr.Birinder N.S. Sharma, for respondent No.4. -- PERMOD KOHLI, J. I have heard the learned counsel for the parties at length. Appointment of respondent No.4 as Secretary of the Punjab School Education Board, vide impugned order dated 31.08.2006 (Annexure P-9), has been assailed by the petitioner in the present writ petition. The petitioner herself was a candidate for the selection/appointment for the said post. Respondent No.4 has been preferred over the petitioner in the matter of appointment by the respondent-Board on their consideration. While giving details of her CWP No.3206 of 2007 -2- own service profile, the petitioner has challenged the selection/appointment of respondent No.4, primarily, on the following grounds: (i) That the said respondent is involved in criminal case of serious nature of service misconduct. (ii) The appointment of said respondent is contrary to the government instructions. (ii) The appointment is against the public interest. It may be useful to briefly notice the factual background. The Punjab School Education Board (hereinafter referred to as the Board) is a statutory Board established and incorporated under the provisions of Section 3 of the Punjab School Education Board Act, 1969 (hereinafter referred to as “the Act”). The composition of the officers of Board is prescribed under Section 13 of the Act which reads as under:- “13. There shall be the following officers of the Board namely: (a) the Chairman; (b) the Vice Chairman; ( c) the Secretary ; and (d) such other officers as may be appointed by the Board.” CWP No.3206 of 2007 -3- The dispute in the present writ petition relate to the appointment of the Secretary to the Board. Section 15 of the Act deals with the appointment of the Secretary of the Board which prescribe the tenure, status, duties etc. of the Secretary. Section 15 of the Act is reproduced hereunder:- “15. (1) The Board shall appoint a person to be its Secretary from a panel sent by the State Government consisting of the officers of the State Government and the eligible officers of the Board for a term of three years which may further be extended by the Board for a period of two years. If a person is appointed as a Secretary from amongst the officers of the State Government his appointment as such, shall be treated on deputation and it shall be governed by the relevant rules or policy instructions of the State Government. Provided that no person appointed as Secretary of the Board shall continue as such beyond the age of superannuation prescribed for the employee of the Board. (1-A) The terms and conditions of appointment of the Secretary shall be such as may be CWP No.3206 of 2007 -4- prescribed. (2) The Secretary shall be- (a) The Principal Executive Officer of the Board and shall- (i) authenticate all orders and decisions of the Board; and (ii) represent the Board in all legal proceedings except where the Board resolve otherwise. (b) entitled to the present and to speak at any meeting of the Board; and ( c) responsible for:- i) the presentation of the annual estimates and statement of accounts, including the balance-sheet to the Board, ii) the custody of the Board Fund and ensuring that all moneys of the Fund are expended for the purpose for which they are granted or allotted; iii) keeping the minutes of the meetings of the Board and furnishing a copy thereof to the State Government; and iv) discharging such other functions as may CWP No.3206 of 2007 -5- be prescribed. (3) The Board may appoint such other employees as may be considered necessary for carrying out the provisions of this Act and the regulations made thereunder, on such terms and conditions of service as may be prescribed.” The qualifications and mode of appointment are further prescribed in Regulation 12 of the Punjab School Education Board ) (Employees Service) Regulations, 1988 (hereinafter referred to as the “1988 Regulations”) framed by the Board under the said Act. The regulation aforesaid is noticed hereunder:- “12. Qualifications and mode of appointment of Secretary: 1 (a) A post graduate degree with at least 50% marks or LL.B and; (b) 20 years experience in educational administration-cum-teaching out of which 5 years as Circle Education Officer or its equivalent or higher capacity; OR 8 years experience as Principal of a Degree CWP No.3206 of 2007 -6- College or its equivalent or higher capacity; OR 5 years of administrative experience in a University of the State of Punjab on a post not below the grade of Deputy Secretary in the office of the Board; OR 5 years of administrative experience as a Deputy Secretary or in an equivalent or higher grade post in the office of the Board; OR a member of the Indian Administrative Service or a member of the Punjab Civil Services (Executive Br.) with at least 5 years experience on the recommendations of the Chief Secretary; provided that knowledge of Punjabi upto Matriculation or its equivalent standard shall be compulsory.” One Vinod Kumar Bhalla was appointed as the Secretary of the Board in its meeting held on 29.12.2005 and 10.01.2006. The said recommendee/appointee, however, did not join and it was decided to appoint another incumbent as the Secretary. Prior to the appointment of Vinod Kumar Bhalla, the State Government prepared a panel of the officers for consideration of the Board for appointment as the Secretary. The panel was forwarded to the Chairman of the Board vide communication dated 27.12.2005 (Annexure P-2). Shri Vinod Kumar CWP No.3206 of 2007 -7- Bhalla, a Punjab Civil Services Officer was at serial No.1, respondent No.4 was at serial No.6, whereas the petitioner was at serial No.7 of the list besides other candidates. This communication specifically mentions that the service record of the officers working in the Punjab School Education Board may be carefully scrutinised to ensure that no complaint/vigilance enquiry/departmental proceedings are pending against them. As noticed above, Shri Vinod Kumar Bhalla was selected in the meeting held on 10.01.2006 and in view of the non- joining of the above said selectee, respondent No.4 was appointed as the Secretary, purely on temporary basis, till further orders, vide order dated 31.03.2006 (Annexure P-4) passed by the Vice Chairman of the Board. It is alleged that at the time of appointment of respondent No.4 as the Secretary of the Board vide order dated 31.3.2006, a criminal case and vigilance enquiry were pending against her. The appointment of respondent No.4 was in utter disregard to the guidelines issued in this regard. It is further alleged that respondent No.4 was involved in commission of bungling in the selection of 134 Clerks in the office of the Board and a High Powered Committee had been constituted by the Punjab and Haryana High Court for examining the entire process of selection of 134 Clerks in the Board, pursuant to the order of the Division Bench of this Court dated 2.05.2003 passed in CWP No.16002 of 2002 titled Saranjit Kaur and others Vs. Punjab School Education Board and others. The said Committee had made a CWP No.3206 of 2007 -8- report to the Chairman regarding gross irregularities in the selection of 134 Clerks. The Committee also ruled that all the norms have been violated with impunity at each stage right from the stage of entertaining the applications and the preparation of the final selection list. The High Powered Committee consisted of Hon'ble Mr. Justice N.K. Aggarwal (Retd.), Mr. H.L. Randev, District and Sessions Judge (Retd.) and Mr. R.P. Bajaj, District and Sessions Judge (Retd.) The Committee also made certain observations showing the illegality in the process of selection. First Information Report No.12 dated 14.6.2002 in regard to the same selection was also lodged under Section 420/467/468/471 and 120-B of the IPC and Section 13 (i)m and 13 (2) of the Prevention of Corruption Act, 1989. Respondent No.4 was admitted to bail in the said F.I.R. It has also been mentioned that another employee claiming to be more meritorious and senior than respondent No.4 filed Civil Writ Petition No.5343 of 2006 (Jagbir Kaur Brar Vs. State of Punjab and others) in which the following interim order was passed on 18.04.2006:- “Learned counsel for the petitioner inter-alia contends that the Respondents have completely ignored the observations of the Govt. contained in the letter of recommendation of the panel for the purpose of appointment of Secretary, Punjab School Education Board. The observation clearly indicates that the service CWP No.3206 of 2007 -9- record of the officers working in the afore- stated Board should be carefully scrutinized to ensure that no complaint/vigilance inquiry/Departmental proceedings are pending against him. This has completely been ignored while considering the claim of Respondent No.4 and selecting her for being appointed as Secretary of the afore-stated Board, in fact the aforesaid Respondent is facing criminal charges initiated against her and the same are sub-judice as yet. This fact was to the knowledge of the Board but the same has been ignored in utter violation of the observation of the Govt. Notice of motion for 5.5.2006. Dasti as well.” This order was followed by another order dated 06.07.2006 which is reproduced as under:- “Pursuant to our earlier order dated July 03, 2006, a short affidavit of Sh. R. Vankat Rattanam, IAS Special Secretary to the Govt. Punjab dated 5.7.2006 has been filed in the CWP No.3206 of 2007 -10- Court today, which is taken on record. Copy thereof has been supplied to the opposite counsel as also the inter se Respondents also. Perusal of the aforestated affidavit shows that a communication dated 30.6.2006 addressed to the Chairman, Punjab School Education Board, Mohali, had been sent, the receipt of which has been duly accepted as on 3.7.2006. However, the ld. counsel of the Board has apprised us that the Board shall make endeavour for making the regular appointment to the post of Secretary Punjab School Education Board within the time frame set out by the Govt. In case the same is delayed for any reason, the extension shall be asked for accordingly. In view of the above adjourned to 3.8.2008.” Finally order 03.08.2006 was passed which also reads as under:- “The ld. Counsel for the Board states that some more time is required for appointment to the post of Secretary, Punjab School Education CWP No.3206 of 2007 -11- Board. He further states that the matter is under active process. Adjourned to 4.9.2006. It is made clear that no further extension shall be granted and petition shall be finally decided on the adjourned date.” Consequent upon the aforesaid order, the Board forwarded a fresh panel of officers to the Chairman of the Board vide its communication dated 24.07.2006 (Annexure P-6). This panel consists of as many as five persons including the petitioner, respondent No.4 and one Jagbir Kaur Brar, petitioner in the aforesaid writ petition. The recommendations in regard to first three candidates including the petitioner, respondent No.4 and Jagbir Kaur Brar are reproduced hereunder:- Sr. No Name/ Husband Name Srv./Smt/Sh. Date of Birth/ date of Retirement Present Status Educa- tional Qualifi- cations Experience Status according to last five years Secret reports Remarks 1 Jagbir Kaur Brar/Jaswant Singh 06.02.1949/ 28.02.2007 Director Academic M.A.-Ist Divn., B.Sc. and B.Ed. 12 years subject expert and Editor. 13 years as Deputy Director./Joint Director since 1999 Director Academic around 7 years experience. 01-02= outstan- ding 02-03= outstan- ding 03-4=good 04-05= V.good Eligible. Less than 3 years left in service. CWP No.3206 of 2007 -12- Sr. No Name/ Husband Name Srv./Smt/Sh. Date of Birth/ date of Retirement Present Status Educa- tional Qualifi- cations Experience Status according to last five years Secret reports Remarks 2 Pavittar Pal Kaur/Parsa Singh 12.10.1956/ 31.10.2014 Secretary M.A., M.Phil 10 years subject expert, 13 years Deputy Director, 6 months worked as Director Academic during Leave period. Working as Secretary from 31.03.06. 01-02= V.Good 02-03= V.Good 03-04= V.Good 04-05= V.Good Eligible as stated by her the court case regarding the recruitment of 134 clerks i.e. (Sh.Tota Singh Vs. State) and the proceedings are stayed by the Hon'ble Supreme Court vide DO 5406/2004/5B dated 12.10.2004, but till today no court/inquiring agency had held her guilty. No information/recor d is available in the office regarding the above mentioned case. 3 Sukhwinder Kaur Saroya/ Budh Singh 02.04.1964/ 30.04.2022 Controller Examinati ons. M.A. English LL.B., LL.M.-I From March 1993 to 1995 work ed as retainer, Punjab School Education Board, 28.06.1995 to 8.04.1999 as LA Punjab School Education Board, from 9.04.1999 to till today working as SLA and 28.08.2004 till today controller Examinations. 01-02= V.Good 02-03= V.Good 03-04= V.Good 04-05= V.Good Eligible. As per the vigilance department a complaint made by Shri Gurjeet Singh Tonny against this official was sent to Education Department to make enquiry at their own level. In this regard, Board office sent their report no.1340 dated 26.05.06 to Education Board. Jagbir Kaur Brar was shown having less than three years service. It is relevant to notice here that tenure of the Secretary under Section 15 of the 1988 Regulations is three yeas. Respondent No.4 was next in the recommendation letter and, thus, the Board on CWP No.3206 of 2007 -13- consideration in the meeting held on 31.08.2006, appointed her as the Secretary vide order dated 31.08.2006 (Annexure P-9). The petitioner has placed on record copy of a note dated 24.06.2004 (Annexure P-1) which relate to the appointment of Controller of Examinations in the Punjab School Education Board as a stop-gap arrangement. Three candidates including the petitioner, respondent No.4 and one Hardeep Singh, Lecturer , were considered and the petitioner was recommended for such appointment. In case of respondent No.4, the note reads as under:- “Therefore, his case should not be considered. As far Mrs. Pavitar Pal Kaur, she is involved in a vigilance case in the recruitment of 134 Clerks in the Punjab Education Board. The challan in this regard has been presented in the Special Court at Ropar and the next date fixed for framing charges is 08.07.2004. E.M. may like to submit the case to the C.M. for consideration as conveyed by DS-cum- OSD/CM at page/correspondence.” On the basis of the aforesaid note, it has been contended on CWP No.3206 of 2007 -14- behalf of the petitioner that respondent No.4 was not considered for appointment on account of pendency of criminal case against her for the post of Controller of Examinations, but all these facts were buried at the time of her appointment as Secretary, a coveted post of high responsibility. The Board, respondent No.4 and the State have filed their separate disclaimers. The Board has defended the selection/appointment of respondent No.4. It has been mentioned in the reply that after the presentation of the challan, the proceedings in the criminal case had been stayed by the Hon'ble Supreme Court of India at the time of selection/appointment of respondent No.4. It is further the case of the Board that respondent No.4 was a junior member in the selection Committee which is alleged to have committed irregularities in the appointment of 134 Clerks. The Board has also made specific averment that the Board conducted the departmental enquiry pertaining to the irregularities, however, there was no role of respondent No.4. The Board has also specified in the reply that at the time of consideration of the name of respondent No.4 for the empanelment for appointment, pendency of criminal proceedings pending against her were taken into consideration and in view of the stay granted by the Hon'ble Supreme Court of India regarding criminal proceedings, the appointment was made which is subject to the outcome of the criminal proceedings. CWP No.3206 of 2007 -15- It has also come on record through the affidavit of the petitioner filed along with Civil Miscellaneous Application No.13102 of 2008 that at one stage, the matter was reported to the Lok Pal, Punjab and the Lok Pal, Punjab, recommended that public men including respondent No.4 be not given any assignment in future involving selection of candidates in any test. The Governor of Punjab, accepted the report of the Lok Pal, Punjab and recommended action in accordance therewith vide order dated 19.02.2002. It is further alleged that because of the influence of respondent No.4, no action has been taken against her. The petitioner has filed Civil Miscellaneous Application No.20375 of 2008 in C.M. No.13102 of 2008, annexing thereto Annexures-A which indicate that the order passed by the Lok Pal Punjab has been stayed by this Court vide order dated 01.10.2008 passed in CWP No.17428 of 2008. Another Annexure -B placed on record with the aforesaid Civil Miscellaneous Application also shows that the allegations of corruption against the petitioner have been quahsed, though the charges have been framed with respect to other offences. Respondent No.4 is facing trial at Ropar Court for other offences on the basis of the FIR. It is admitted during the course of arguments that the stay of the criminal proceedings earlier granted by the Hon'ble Supreme Court, stands vacated and respondent No.4 is being tried with other co-accused at Ropar Court. The impugned order also indicates that the appointment of respondent No.4 is subject to criminal case pending against her. It is CWP No.3206 of 2007 -16- not a case of total innocence of respondent No.4. She has been charged of criminal offences which has direct relation to the discharge of the official duties. Respondent No.4 has been accused of bungling in the matter of selection of Clerks. From Section 15 (2) of the Act, it appears that the Secretary to the Board is the Principal Executive Officer. The Secretary is Privy to all decisions of the Board, be it relating to the decisions of the Board, secrecy of examinations including setting of question papers and marking of answer sheets, presentation of the statement of accounts, custody of Board funds, so and so on. It clearly depicts that the nature of duties of the Board are highly confidential and sensitive. The Board is responsible for conduct of all examinations. The post of the Secretary needs to be manned by a person of highest integrity to preserve the faith of the students and their parents. Any abrasion can result in chaos and is detrimental to the larger public interest, particularly the interest of the students who are future of the country. Respondent No.4 has been accused of a serious de-relection of duty and accused of conniving with others for illegal appointments. The manner in which the Board has defended the action of appointment of respondent No.4 deserves no appreciation. Despite having the knowledge of pendency of criminal case and the serious nature of accusation, respondent No.4 has been preferred for appointment to such a sensitive post. The trial of the criminal case is still going on. Keeping in view the pendency of criminal proceedings as also the nature of the accusation, the Board CWP No.3206 of 2007 -17- should have refrained from appointing respondent No.4. But that has not happened. To the contrary, the Board is trying to defend its actions and the action of respondent No.4 treating her as a member of its family. This Court cannot be a moot spectator to such an action particularly when it concerns larger public interest. The issue of appointment to sensitive post came up for consideration before the Hon'ble Supreme Court in the case of Centre for Public Interest Litigation and another Vs. Union of India and another, (2005) 8 Supreme Court Cases, 202. While considering the appointments to an important sensitive post, the Hon'ble Supreme Court has made the following observations:- “17. Learned counsel for Respondents No.2 and 3 have submitted that as back as on 17.4.2004 Respondent 3 was promoted to the Chief Secretary's grade with a particular scale of pay. Since Respondent 3 belonged to the said cadre and grade, one of the posts on which she could be appointed is the post of Chief Secretary. Therefore, there is nothing wrong in her appointment. Though the post of Chief Secretary may belong to a particular grade/cadre, it is certainly a key post. The importance of this post was noted by this Court CWP No.3206 of 2007 -18- in E.P. Royappa vs. State of T.N. 18. The argument presently advanced is that since Respondent 3 has been continuing in the post for five months, no cadres should be passed regarding her appointment till the Commission gives it report. Had this consideration weighed with the State Government when it made the appointment there may not have been any difficulty. It could have, considering the importance of the post, awaited the report of the Commission headed by Mr. Justice K.T. Thomas. It is not the case of Respondent 2, the State of U.P. that no other officer is suitable to hold that post or that the services of Respondent 3 are so indispensable that none but she should be appointed as the Chief Secretary. This is purely a case of justifying an action. Linked with it is the question of transparency in action. It is true that the allegations against Respondent 3 have to be established. It is often said that justice should not only be done but it should appear to have been done. Lord Denning in Metropolitan Properties Co. V. Lannon said: (AIR ER p. 310 CWP No.3206 of 2007 -19- D) “Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: The Judge was biased.” The logic is equally applicable to governmental action and the Government. The State Government could have avoided the washing of dirty linen which as contended by learned counsel for Respondents 2 and 3 is the sole object of the writ petition. 20. The time has come when the postings of officers holding sensitive posts should be done in transparent manner giving no scope for any grievance. It is true that grievances can be made or allegations can be levelled for ulterior motive or with the intention of damaging the reputation of an officer who is likely to be appointed in a sensitive post, very often at the behest of persons angling for the post. In the peculiar background facts it was really desirable for the State Government to steer clear of controversy and not to post Respondent 3 as the Chief Secretary. By doing it, it has CWP No.3206 of 2007 -20- unnecessarily created further complications and invited criticism. We, therefore, direct the State Government to transfer Respondent 3 to some other post in the cadre/grade to which she belonged. The question of her suitability to be included in the cadre/grade,shall be examined in the writ petition itself. For the present, we do not express any opinion on that issue. The necessary steps for effectuating our order shall be taken within seven days. We make it clear that we have not expressed any opinion on the merits of the allegations as the matter is pending before the High Court and Justice Thomas Commission.” The appointment of respondent No.4 is, admittedly, subject to outcome of the criminal proceedings pending against her. As is well known, criminal trial takes long time and the tenure of the post in question is three years. Three years period is already over. Earlier respondent No.4 or any other co-accused seems to have obtained the stay from the Hon'ble Supreme Court which has already been vacated. How much time is likely to be consumed in decision of the case, is not known. The benefit of pendency of criminal proceedings and delay in its disposal should not be given to respondent No.4. It is a question of CWP No.3206 of 2007 -21- the interest of the institution and the public at large, particularly