Gs Ghuman vs State Of Punjab And Others

CIVIL WRIT PETITION NO.7850 OF 2011 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CIVIL WRIT PETITION NO.7850 OF 2011

DATE OF DECISION: OCTOBER 18, 2012

GS Ghuman .......Petitioner

Versus

State of Punjab and others .......Respondents

CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA

Present: Mr.DS Patwalia, Advocate for the petitioner.

Mr.Suvir Sehgal, Additional Advocate General, Punjab.

Mr.RK Malik, Senior Advocate with Mr.Vijay Dahiya, Advocate for respondent No.3.

Mr.Anupam Gupta, Senior Advocate with Mr.Jasmandeep Singh, Advocate for respondent No.4.

Mr.Gurminder Singh, Advocate for respondent No.5.

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TEJINDER SINGH DHINDSA, J.

This order shall decide Civil Writ Petition Nos.7850 of

2011 (GS Ghuman v. State of Punjab and others), 10584 of 2011

(Gurloveleen Singh and others v. State of Punjab and others),

11134 of 2011 (Ritu Aggarwal v. State of Punjab and others) and

10606 of 2011 (Malwinder Singh Jaggi and others v. State of

Punjab and others). The challenge in these petitions is to the CIVIL WRIT PETITION NO.7850 OF 2011 -2-

order dated 28.12.2010 whereby the State Government has

determined the seniority of PCS (Executive Branch) Officers

appointed on the basis of PCS (Executive Branch) and Allied

Services Examination held pertaining to the recruitment process

of 1990. As common facts and questions of law arise in these

petitions, they have been taken up together. Facts, however, are

being noticed from Civil Writ Petition No.7850 of 2011 (GS

Ghuman v. State of Punjab and others).

2. The petitioner as also the private respondents were

candidates for selection to the PCS (Executive Branch) in the

selection process pertaining to the year 1990. There were 26

posts of PCS (Executive Branch) which were filled up in such

process of selection through Register 'B' meant for direct

recruitment under the Punjab Civil Services (Executive Branch)

(Class-I) Rules (hereinafter to be referred to '1976 Rules'). Fifteen

posts were for General Category, six posts were reserved for

Scheduled Castes category, four were reserved for ex-Serviceman

category and one for the Freedom Fighter category. Twenty six

candidates were appointed to the PCS (Executive Branch) in such

selection process. Vide order dated 2.12.1992, Annexure P2,

allocation of candidates, as accepted candidates in Register 'B' in

terms of the provisions of 1976 Rules for appointment to the PCS

(Executive Branch) was made. The name of the petitioner who

belongs to the General category was at Serial No.7 in such list,

the name of respondent No.3 who belongs to the Scheduled Caste

category was at Serial No.18 and names of respondents No.4 and

5 who belong to ex-Serviceman category, were reflected at Serial CIVIL WRIT PETITION NO.7850 OF 2011 -3-

Nos.22 and 23 respectively. In such order dated 2.12.1992,

Annexure P2, it had been stipulated that such appointments are

subject to the condition of adjustment, if any, with regard to the

eligibility of a candidate and the inter se seniority of the

candidates belonging to the same category.

3. A gradation list was issued by the State as corrected

upto 1.1.1993, Annexure P3, in terms of which the petitioner was

placed at higher position viz-a-viz the private respondents. A

reference in the pleadings has also been made to the gradation

list for Register 'B' corrected upto October 2010, Annexure P4,

wherein again the name of the petitioner was reflected higher

than the private respondents. On 12.3.2008, a tentative seniority

list of the PCS (Executive Branch) Officers recruited in pursuance

to the result of the recruitment process for the year 1990 was

circulated, Annexure P5. A perusal of the same would reveal that

notice had been taken of the judgment of the Hon'ble Supreme

Court of India in Civil Appeal No.6373 of 2001 "Arvinder Singh

Bains v. State of Punjab" as also the decisions of the Hon'ble

Apex Court in Ajit Singh Januja and Ajit Singh-II and it was in

purported compliance of the aforesaid judgments that the

tentative seniority list had been issued. In terms of such tentative

seniority list dated 12.3.1986, the petitioner was shown at Serial

No.171, respondent No.3 was shown at Serial No.159 and

respondents 4 and 5 were shown at Serial Nos.157 and 161

respectively. The petitioner filed objections to such tentative

seniority list taking a specific stand that the judgment of the

Hon'ble Supreme Court in the case of Ajit Singh Januja had been CIVIL WRIT PETITION NO.7850 OF 2011 -4-

wrongly applied.

4. In the objections, it was stated that the tentative

seniority list was in complete violation of the statutory provisions

contained in the 1976 Rules and that the names of the petitioner

as well as the private respondents had been entered in the year

1992 upon allocation in the order of merit and such position had

continued unchallenged for over a period of almost 19 years and

as such, the seniority position could not have been disturbed in

such an arbitrary fashion.

5. It is in pursuance to the finalization of such tentative

seniority list dated 12.3.2008 that the final impugned order dated

28.12.2010 has been issued finalizing the seniority of the PCS

(Executive Branch) pertaining to the recruitment process of the

year 1990 wherein the name of the petitioner has been shown at

Serial No.171 and private respondents No. 3 to 5 have been

shown at Serial Nos. 159,157 and 161 respectively. It is in the

light of such brief factual background that the present writ

petition impugning the order dated 28.12.2010 at Annexure P8

has been filed.

6. I have heard Mr.Rajiv Atma Ram, learned Senior

Advocate, Mr.DS Patwalia, Advocate, Mr.Amol Rattan Singh,

Additional Advocate General, Punjab, Mr.RK Malik, learned Senior

Advocate, Mr.Gurminder Singh, Advocate and Mr.Anupam Gupta,

learned Senior Advocate at length.

7. The order dated 28.12.2010 has been assailed by the

petitioner in terms of making following submissions:

i) It is contended that the merit of the qualified CIVIL WRIT PETITION NO.7850 OF 2011 -5-

candidates was determined on the basis of letter

dated 2.12.1992, Annexure P1, and it was on the

basis of such merit list that the names of the

petitioner and private respondents were entered in

Register 'B' as per Rule 14 of the 1976 Rules. Such

merit position on the basis of which seniority stood

determined, was settled in the year 1992 itself and

as such, in terms of the impugned order, the

seniority inter se the candidates is sought to be

disturbed and the same is unsustainable in law.

ii) The impugned order dated 28.12.2010 is liable to be

set aside on the short ground that in terms thereof,

the settled position of seniority is being re-opened

and altered after a period of about 19 years. It has

been urged that the rights inter se the parties stood

already crystalized and as such, cannot be re-

opened after the lapse of such a long period. In

support of such contention, reliance has been placed

on the judgments of the Hon'ble Supreme Court in

BS Bajwa v. State of Punjab, 1998(1) SCT 670:

Shiba Shankar Mohapatra & others v. State of

Orissa and others, (2010)12 SCC 471 and

H.S.Vankani and others v. State of Gujarat and

others, (2010)4 SCC 301.

iii)Another limb of the submission made at (ii) above

was that the principles of waiver and acquiescence

would be applicable as the private respondents had CIVIL WRIT PETITION NO.7850 OF 2011 -6-

accepted the seniority since the year 1992. The

merit position having been determined in terms of

order dated 2.12.1992 and the names having been

entered into Register 'B' in the year 1992 itself, such

order of merit had never been challenged by the

private respondents and the same, accordingly, had

attained finality. The respondents having accepted

such position as regards merit as also seniority could

not alter such position in terms of passing of the

impugned order dated 28.12.2010.

iv)The impugned seniority has been issued in terms of

wrongfully placing reliance on the judgments of the

Hon'ble Supreme Court in Ajit Singh Januja's case as

the same would have no application to the facts of

the present case inasmuch as the petitioner belongs

to the general category and respondents No.4 and 5

belong to the ex-Serviceman category.

v) It has been argued that the private respondents

belonging to the ex-Serviceman category had

appeared in the open competitive examination in

terms of having availed relaxed standards as they

had not appeared in the optional subjects and as

such, they could not have competed with the

candidates belonging to the general category like

the petitioner who had appeared in all the papers.

The submission raised was to the effect that a level

playing field would be of candidates who have not CIVIL WRIT PETITION NO.7850 OF 2011 -7-

availed of any concessions or relaxation. All things

have to be equal for all the candidates. On the

strength of such submission, it was contended that

candidates belonging to the ex-Serviceman category

i.e. respondents No.4 and 5 would necessarily have

to rank below the general category candidates as

there could be no determination of merit inter se.

Towards such submission, reliance has been placed

upon two judgments of the Hon'ble Apex Court in

Jitendra Kumar Singh and another v. State of Uttar

Pradesh and others, (2010)3 SCC 119 and Union of

India v. Ramesh Ram and others, (2010)7 SCC 234.

vi)The criteria adopted by the Punjab Public Service

Commission towards preparation of combined merit

list i.e. on the basis of marks secured in the papers

by the candidates of different categories in which

they appeared as per Rules and by working out the

percentage of marks obtained in these papers as

well as viva voce was totally alien to the provisions

of the 1976 Rules. Reliance in this regard was

placed upon Naraindas Indurkhya v. The State of

M.P. and others, AIR 1974 SC 1232 to contend that

any executive action taken by the State Government

would have to be supported by legislative authority.

It was urged that there was no legislative sanction

insofar as adoption of such criteria whereby a

combined merit list of the general category CIVIL WRIT PETITION NO.7850 OF 2011 -8-

candidates as also candidates belonging to the ex-

Serviceman category having availed the benefit of

relaxed candidates has been prepared and on the

basis thereof, the impugned order dated 28.12.2010

determining the seniority inter se had been issued.

vii)In terms of placing reliance upon Mohinder Singh

Gill and another v. The Chief Election

Commissioner, New Delhi and others, AIR 1978 SC

851, it was contended that the validity of an order

has to be adjudged by the reasons so mentioned

therein and such order cannot be supplemented by

fresh reasons in the shape of an affidavit or

otherwise. In this regard, it was argued that the

impugned order was cryptic and non-speaking and

the same was sought to be defended in terms of

relying upon the merit list dated 21.4.2005 which

does not even find mention in such impugned order.

viii)Lastly, malafides were attributed to respondent

No.3 who was stated to be posted as Secretary of

the Punjab Public Service Commission and it was

urged that the order inviting objections to the

tentative seniority list issued in March, 2008 and the

entire action of unsettling the settled position of

seniority was done at her behest, she being an

interested party.

8. On the contrary, the order dated 28.12.2010 was

defended on behalf of respondents in terms of taking a stand that CIVIL WRIT PETITION NO.7850 OF 2011 -9-

the petitioner as also the private respondents were allocated by

the Department of Personnel and Administrative Reforms (PP-III

Branch) vide letter dated 2.12.1992, Annexure P1, and such

category-wise allocation was not as per combined merit. A

positive stand was taken on behalf of the respondents that the list

at Annexure P1 not being in the nature of a combined merit, the

seniority inter se the candidates had never been determined in

the year 1992. It was stated that the gradation lists that were

issued from time to time by the State Government did not reflect

the inter se seniority of the Officers. Such gradation lists at

Annexures P3 and P4 could not be termed as seniority lists for the

precise reason that the same were not based on a combined

merit prepared by the Punjab Public Service Commission. It was

contended for the respondents that the Government of Punjab

issued circulars dated 22.10.1999 and 23.10.2000 towards

implementation of Ajit Singh Januja's judgment whereby the

Government had taken a decision that seniority would be required

to be determined by not treating roster points as seniority points

but rather the same was to be determined as per merit list

prepared by the Punjab Public Service Commission. It was in

pursuance thereto that a combined merit list for the years 1987 to

1990 was prepared by the Punjab Public Service Commission and

forwarded to the Government to facilitate the preparation of

seniority of PCS (Executive Branch) Officers. Such combined

merit list pertaining to PCS (Executive Branch) and other Allied

Services Examination was prepared and sent first at point of time

by the Punjab Public Service Commission to the State Government CIVIL WRIT PETITION NO.7850 OF 2011 -10-

vide letter dated 4.7.2001. Such combined merit list was further

revised in terms of letter dated 21.4.2005 and it was in pursuance

thereto that the tentative seniority list was issued in March, 2008

inviting objections and thereafter finalized in terms of order dated

28.12.2010. Accordingly, it has also been urged on behalf of the

private respondents that since the order dated 2.12.1992,

Annexure P2, was not an inter se seniority and seniority, in fact,

had never been determined at that point of time, the question of

challenging the same never arose.

9. Still further, it has been argued on behalf of the private

respondents that the judgments relied upon on behalf of the

petitioner pertaining to the ex-Serviceman candidates having

availed of concessions/relaxed candidates would have no

applicability in the light of the peculiar facts of the present case.

The stand taken by the official respondents is that the seniority

finalized in terms of order dated 28.12.2010 was in terms of the

mandate of statutory provisions contained in the 1976 Rules.

Furthermore, it has been urged on behalf of the respondents that

every act of the State Government exercising its executive power

would not require legislative sanction. The executive power of

the State under Article 162 of the Constitution of India is co-

extensive with its legislative power.

10. Before considering the rival contentions raised on

behalf of the parties, it would be apposite to refer to the statutory

provisions relevant for determination of the controversy arising in

the present case. Rules 4,7,8,12,13-A,14,18,19 and 21 of the

1976 Rules read as follows:

CIVIL WRIT PETITION NO.7850 OF 2011 -11-

"(4). All appointments to the Services shall be made by

the Government in consultation with the Commission.

(7). Appointment to the Service shall be made in

manner herein provided from amongst accepted

candidates whose names have been duly entered in

accordance with these rules in the Registers of

accepted candidates to be maintained under these

rules.

(8). The following Registers of accepted candidates

shall be maintained by the Chief Secretary to

Government, Punjab namely:-

(1) xxxxxxxx

(2) xxxxxxx

(3) xxxxxxx

(4) register B in which shall be entered the name

of persons accepted as candidates as a result of

the (the main competitive examination), and

(5) xxxxxxx

(12). (1) A preliminary competitive examination, the

regulations of which are contained in Appendix II of

these rules, shall be held at any place in the State of

Punjab as and when notified by the Government

through the Commission for the purpose of selection of

candidates for admission to the main competitive

examination as specified in rule 13-A.

(2) Notice of the date fixed for the (preliminary

competitive examination shall be published in the CIVIL WRIT PETITION NO.7850 OF 2011 -12-

Punjab Government Gazette).

(13-A). (1) A main competitive examination, the

regulations of which are contained in Appendix III of

these rules, shall be held at any place in the State of

Punjab as and when notified by the Government

through the Commission for the purpose of selection

by competition of as many candidates for the service

as Government may determine.

(2) Notice of the date fixed for the main

competitive examination shall be published in the

Punjab Government Gazette.

(3) No candidate shall be allowed to sit in the

main competitive examination, unless she has

qualified the preliminary competitive examination

in terms of the provision of rule 12.

(4) the total number of candidates to be admitted

to the main competitive examination shall not

exceed thirteen times the total number of

vacancies determined by the Government under

sub-rule (1).

(14). Subject to the provision of (rules 13 and 13-A)

Government shall include in Register 'B' in order of

merit determined by the Commission, the names of

such number of candidates as it may, from time to

time, determine, from amongst those who have been

declared as qualified in the (main competitive

examination) by the Commission.

CIVIL WRIT PETITION NO.7850 OF 2011 -13-

(18). The Government shall make appointments to the

Service in pursuance of rule 7 from amongst the

candidates entered on the various Registers in a slab

of 100 vacancies as follows :-

i) the first vacancy and thereafter every alternative vacancy shall be filled from amongst candidates borne on Register 'B'.

ii) the 2nd, 8th, 14th, 20th, 26th, 32nd, 38th, 44th, 50th, 56th, 62nd, 68th, 74th, 80th, 86th, 92nd, 96th and 100th vacancy shall be filled from amongst the candidates borne on Register A-I;

iii)the 4th, 10th, 16th, 22nd, 28th, 34th, 40th, 46th, 52nd, 58th, 64th, 70th, 76th, 82nd, 88th and 98th vacancy shall be filled from amongst candidates borne on register A-II.

iv)The 12th, 30th, 42nd, 54th, 66th, 78th and 90th vacancy shall be filled from amongst the Excise and Taxation officers accepted as candidates on Register A-III.

v) The 18th, 36th, 60th and 84th vacancy shall be filled from amongst the District Development and Panchayat Officers or Block Development and Panchayat Officers accepted as candidates on Register A-III; and

vi)the 6th, 24th, 48th, 72nd and 94th vacancy shall be filled from amongst the candidates on register 'C'.

(19). Candidates on the same Register shall be

appointed to the Service in the order of merit assigned

to them by the Commission while selecting as a batch

for that particular Register.

(21). The seniority of officers appointed to the Service

shall be determined in accordance with the order of CIVIL WRIT PETITION NO.7850 OF 2011 -14-

their appointment to Service; provided that -

a) if the order of appointment of any candidate is cancelled under the provisions of rule 20 and such candidate is subsequently appointed to the Service, the order of appointment for the purpose of this rule shall be determined by the date of such subsequent appointment;

b) if any officer appointed to the Service fails to qualify himself for substantive permanent appointment within the prescribed period of probation, the Government may determine whether the date of his appointment for purpose of this rule shall be postponed by a period not exceeding the period by which such officer's substantive permanent appointment is delayed beyond the prescribed period of probation;

c) the persons appointed as a result of earlier selection from a Register shall be senior to those appointed as a result of subsequent selection from the same Register."

11. A perusal of the above produced relevant provisions of

1976 Rules would make it apparent that all appointments to the

service shall be made by the Government in consultation with the

Punjab Public Service Commission. In terms of Rule 7 of 1976

Rules, the appointment to the service is to be made from amongst

accepted candidates whose names have been duly entered in

accordance with the Rules in the registers of accepted candidates.

In relation to the present controversy, Rule 8(4) of 1976 Rules

governs Register 'B' wherein names of persons are to be entered

as accepted candidates in pursuance to the result of the main

competitive examination. Rule 12 postulates the holding of a

preliminary competitive examination to be conducted through the CIVIL WRIT PETITION NO.7850 OF 2011 -15-

Punjab Public Service Commission for purposes of selection of

candidates for admission to the main competitive examination as

specified in Rule 13-A of 1976 Rules. As per the mandate of Rule

14 of 1976 Rules, the Government shall include in Register 'B',

the names of such candidates strictly in order of merit determined

by the Punjab Public Service Commission who have been declared

as qualified in the main competitive examination by the

Commission. Under Rule 19 of 1976 Rules, the candidates on the

same Register shall be appointed to the service in the order of

merit assigned to them by the Commission while selecting as a

batch for that particular Register. Rule 21 of 1976 Rules

regulates seniority and mandates the same to be determined in

accordance with the order of the appointment of such Officers to

service.

12. Rules 3,4,5 and 9 of the Punjab Recruitment of ex-

Serviceman Rules, 1982 Rules (hereinafter to be referred as '1982

Rules') read in the following terms:

"(3). Extent of Application. - These rules shall apply to

all the State Civil Services and Posts connected with

the affairs of the State of Punjab, except the Punjab

Vidhan Sabha Secretariat Service and the Punjab

Superior Judicial Service.

(4). Reservation of Vacancies. - (1) Subject to the

provisions of rule 3, fifteen per cent of the vacancies to

be filled in by direct appointment in all the State Civil

Services and Posts connected with the affairs of the

State of Punjab shall be reserved for being filled in by CIVIL WRIT PETITION NO.7850 OF 2011 -16-

recruitment of Ex-Servicemen:

Provided that the total number of reserved

vacancies including those reserved for the candidates

belonging to the Scheduled Castes, Scheduled tribes

and Backward Classes shall not exceed fifty per cent of

the posts to be filled in a particular year.

(2) Where a reserved vacancy remains unfilled

for non-availability of a suitable Ex-Serviceman, such

vacancy may be filled in, temporarily from any other

source in accordance with the rules regulating the

recruitment and the conditions of service of persons

appointed to such posts as if the vacancy was not

reserved:

Provided that the reserved vacancy so filled in

shall be carried forward for the subsequent occasions

for recruitment spreading over a period not exceeding

four years, whereafter the vacancy in question shall be

treated as unreserved.

(5). Appointment through competitive examination. -

Notwithstanding anything contained in the concerned

Service Rules, in case an appointment to any post

governed by those rules is made through competitive

examination, -

i) the maximum chances to be given to an Ex-

Serviceman for appearing in the said examination shall not exceed three; and ii) the Ex-Serviceman shall not be required to

appear in the optional subject, if any, specified for that examination.

CIVIL WRIT PETITION NO.7850 OF 2011 -17-

(9). General. - (1) In matters not specifically provided

for in these rules, a person appointed against a

reserved vacancy shall be governed by the concerned

Service Rules.

(2) All concerned Service rules shall be subject to

the provisions of these rules and the said rules shall be

construed accordingly.

(3) Nothing in these rules shall be construed as

depriving any person to whom these rules apply of any

right which had accrued to him under the rules,

notifications or orders in force immediately before the

commencement of these rules."

13. In terms of Rule 3 of 1982 Rules, such Rules apply to

all State Civil Services and Posts connected with the affairs of the

State of Punjab except Punjab Vidhan Sabha Secretariat Service

and Punjab Superior Judicial Service. In terms of Rule 4 of 1982

Rules, 15% of the vacancies to be filled in by direct appointment

in all the State Civil Services and Posts connected with the affairs

of the State of Punjab stand reserved for being filled in by

recruitment of ex-Serviceman. Rule 5 of 1982 Rules opens with a

non-obstante clause to the effect that notwithstanding anything

contained in the concerned Service Rules, in case an appointment

to any post governed by those Rules is made through competitive

examination, the ex-Serviceman shall not be required to appear in

the optional subjects, if any, specified for that examination. Rule

9 of 1982 Rules crystalizes the matter further and it is provided

that in matters not specifically provided for in these Rules, a CIVIL WRIT PETITION NO.7850 OF 2011 -18-

person appointed against a reserved vacancy shall be governed

by the concerned Service Rules and further mandates that all

concerned Service Rules shall be subject to the provisions of

these Rules and the said Rules shall be construed accordingly. In

terms of the repealing clause, the Punjab Government National

Emergency (Concession) Rules, 1965; the De-mobilised Armed

Forces Personnel (Reservation of Vacancies in the Punjab State

Non-Technical Services) Rule, 1968; the De-mobilised Indian

Armed Forces Personnel (Reservation of Vacancies in the Punjab

Civil Services) (Executive Branch), Rules 1972; and the Released

Indian Armed Forces Personnel (Determination of Eligibility for

Promotion) Rules, 1977 stand repealed.

14. The first question that arises for consideration before

this Court is as to whether the list at Annexure P1 issued in the

year 1992 can be construed as a combined merit list depicting

comparative merit of all the candidates belonging to various

categories including the petitioner and the private respondents so

as to determine seniority in terms of the 1976 Rules?

15. In the reply filed on behalf of respondent No.2- Punjab

Public Service Commission, Patiala, it has been stated that a

recommendation in the form of category-wise merit list was sent

to the State Government vide letter dated 3.7.1992. On the basis

thereof, the names of the petitioner as also private respondents

were allocated by the Department of Personnel and

Administrative Performance in terms of letter dated 2.12.1992,

Annexure P1, and such category-wise allocation was not in

pursuance to any combined merit sent by the Punjab Public CIVIL WRIT PETITION NO.7850 OF 2011 -19-

Service Commission. This is the specific stand taken in the reply

filed on behalf of the State Government. Letters dated 31.5.2000

and 22.3.2001, Annexures R2 and R3 respectively, appended

along with the reply filed on behalf of respondent No.1 would

clearly reveal that the combined merit list of all categories of

candidates whose names were recommended by the Public

Service Commission on the basis of 1984 examination and

subsequent examinations were still awaited from the Public

Service Commission. Still further, in terms of letter dated

22.3.2001, Annexure R3, addressed to the Secretary, Punjab

Public Service Commission, it was clearly recited that in

pursuance to the law laid down by the Hon'ble Supreme Court in

Ajit Singh Januja and Ajit Singh-II, a combined merit list of PCS

Officers recruited to the PCS (Executive Branch) from 1989 to

1999 be sent by the Commission. It is in response thereto that

vide letter dated 4.7.2001, Annexure R1, the combined merit list

of all categories prepared on the basis of merit of PCS (Executive

Branch) and other Allied Services Examination for the years

1987,1988,1989,1990 and 1998 were sent by the Punjab Public

Service Commission to the State Government. A perusal thereof

would reveal that the criteria adopted by the Commission for the

preparation of the combined merit list including the one

pertaining to the recruitment process of the year 1990 was also

disclosed inasmuch as it was stated that such combined merit list

had been prepared by the Commission on the basis of marks

secured in the papers by the candidates of different categories in

which they appeared as per Rules and by working out the CIVIL WRIT PETITION NO.7850 OF 2011 -20-

percentage of marks obtained in these papers as well as in viva

voce. The reply on behalf of the Commission-respondent No.2

would further reveal that such combined merit list pertaining to

the recruitment process of the year 1990 sent vide letter dated

4.7.2001 stood further revised on account of the inclusion of the

name of one Shri Bakhtawar Singh, a candidate of 1990

examination and as such, the revised combined merit list was

sent vide letter dated 21.4.2005 which stands appended as

Annexure P7 along with the writ petition. As such, it is on the

basis of such combined merit list submitted first in point of time

on 4.7.2001 by the Commission and thereafter revised in terms of

letter dated 21.4.2007 that has formed the basis of the issuance

of tentative seniority list in March 2008 and thereafter finalized

after inviting objections in terms of the order dated 28.12.2010.

16. Such factual position would clearly demonstrate that

the letter dated 2.12.1992, Annexure P1, was merely an order of

allocation issued by the Personnel and Administrative Reforms

Department of the State Government, but did not contain the

names of the candidates in the order of merit. That apart, even a

perusal of such list dated 2.12.1992 would reveal that general

category candidates were placed enbloc from Serial Nos.1 to 15,

candidates belonging to SC (Balmiki/Mazhabi Sikh) were placed at

Serial Nos.16 and 17, thereafter candidates belonging to SC,

other categories were placed from Serial Nos.18 to 21 followed by

candidates belonging to ex-Serviceman category from Serial

Nos.22 to 25 and at the very end, a candidate belonging to the

Freedom Fighter category was reflected at Serial No.26. Even the CIVIL WRIT PETITION NO.7850 OF 2011 -21-

gradation lists that were issued from time to time by the State

Government at Annexures P3 and P4 would clearly reveal that the

same had been marked to the effect that the seniority of the

Officers of the batch of 1990 i.e. the present petitioner and

private respondents is yet to be fixed and the same would be

evident from the mark (*) that was specifically indicated on the

bottom of each page of the gradation list. Such gradation lists

issued from the year 1993 to the year 2010 could not be

construed as being reflective of the seniority position. In the

order dated 2.12.1992, Annexure P2, it had been specifically

stipulated that the appointments were subject to the conditions of

adjustment with regard to the eligibility of a candidate and the

inter se seniority of the candidates belonging to the same

category. In the light of the facts of the present case, the

expression "same category" as contained in the order dated

2.12.1992 would be construed to mean relating to Register 'B'.

Furthermore, under Rule 21 of the 1976 Rules, the seniority of the

Officers has to be determined in accordance with the order of

their appointment and such Rule is required to be read with Rule

18 and, accordingly, the inter se seniority has to be fixed in

accordance with the order of appointment by applying the roster

provided under Rule 18. The expression "in accordance with the

order of their appointment" would mean the order of merit

determined by the Commission. Such merit had clearly not been

determined in terms of the order dated 2.12.1992.

17. As such, it is clear that in terms of the list at Annexure

P1 dated 2.12.1992, the names furnished therein were not in CIVIL WRIT PETITION NO.7850 OF 2011 -22-

order of merit in pursuance to any exercise or determination of a

combined merit list of the candidates belonging to different

categories and as such, the assertion made on behalf of the

petitioner that seniority inter se stood determined in the light of

Annexure P1, is based on a factually incorrect premise. Having

so held, even the contention raised on behalf of the petitioner

that in terms of the impugned order, the settled position of

seniority that had held good for 19 years was sought to be re-

opened pales into insignificance.

18. Learned counsel for the petitioner has made a pointed

reference to memo dated 29.3.2011 appended as Annexure R-4/2

along with the reply filed on behalf of respondent No.4 whereby

information had been provided under the provisions of the Right

to Information Act which would show that the private respondents

No.4 and 5 belonging to the ex-Serviceman category had not

appeared in the optional subjects. Relying upon such document,

the argument was raised that a reserved category candidate

cannot compete with the open category candidates having

availed relaxation pertaining to the prescribed standards.

Consequently, it has been urged that such ex-Serviceman

candidates would have to rank below the general category

candidates in any process of determination of merit and

consequently, cannot steal a march as far as seniority inter se is

concerned.

19. Such submission would require examination in the light

of the statutory provisions. Under Rule 8(4) of the 1976 Rules,

the Registers of accepted candidates are to be maintained and in CIVIL WRIT PETITION NO.7850 OF 2011 -23-

Register 'B', the names of persons accepted as candidates are to

be entered pursuance to a result of the main competitive

examination. Rule 12 of the 1976 Rules contemplates a

preliminary competitive examination to be held for the purpose of

selection of candidates for admission to the main competitive

examination as specified in Rule 13-A of the 1976 Rules. Under

Rule 13-A, the main competitive examination is to be conducted

by the Commission in the light of the regulations which are

contained in Appendix III of the 1976 Rules. Under Appendix-III

which laid down the regulations relating to the subjects and

standards of the main competitive examination, it is stipulated

that such main competitive examination shall include compulsory

and optional subjects and every candidate shall take all the

compulsory subjects and not more than three of the optional

subjects.

20. Under the 1982 Rules which apply to all the State Civil

Services and Posts connected with the affairs with the State of

Punjab and wherein 15% of the vacancies to be filled by direct

appointment stand reserved for ex-Serviceman, Rule 5 mandates

that notwithstanding anything contained in the concerned service

Rules in case an appointment to any post governed by those

Rules is made through competitive examination, the ex-

Serviceman shall not be required to appear in the optional

subject, if any specified for that examination. Under Rule 9 of

1982 Rules, it is postulated that the concerned service Rules shall

be subject to the provision of these Rules and the said Rules shall

be considered accordingly.

CIVIL WRIT PETITION NO.7850 OF 2011 -24-

21. The Scheme of the 1982 Rules shows that the same

are in the nature of a beneficial act of legislation for the ex-

Serviceman. The provisions would require to be interpreted in a

purposive manner so that the intent and purpose of such

statutory provisions is served. It is in terms of the mandate of

Rule 5 of the 1982 Rules that respondents No.4 and 5 belonging

to the ex-Serviceman category did not appear in the optional

subjects. The 1976 Rules and to be specific, Rule 13-A as also

Appendix-III would have to be read in the light of Rule 5 of the

1982 Rules insofar as the ex-Serviceman category is concerned.

If the contention raised on behalf of the petitioner is accepted in

relation to relaxed standards and thereby such reserved category

of ex-Serviceman candidates not to even compete with the

general category candidates, the obvious consequence that would

follow is that candidates of the ex-Serviceman category in every

eventuality would rank at the tail end. Such a conclusion would

be absurd and would negate the intention of the legislature and

frustrate the statute itself. It would also require notice that under

the Demobilised Indian Armed Forces Personnel (Reservation of

Vacancies in the Punjab Civil Services) (Executive Branch) Rules,

1972, apart from the exemption to appear in the optional subjects

for the ex-Serviceman having been provided in Rule 2, it was also

stipulated in Rule 4, sub-clause (d) that all candidates appointed

against the reserved vacancies under Rule 2 would rank below

the candidates appointed by direct recruitments in the year in

which the former candidates are allotted. The 1972 Rules stand

repealed in terms of the 1982 Rules. The acceptance of the CIVIL WRIT PETITION NO.7850 OF 2011 -25-

contention raised on behalf of the petitioner pertaining to relaxed

candidates would also have the effect of revival of a repealed

provision.

22. Still further, the reliance placed by the learned counsel

for the petitioner on the judgments of the Hon'ble Supreme Court

in Jitendra Kumar Singh v. State of Uttar Pradesh and others

and Union of India v. Ramesh Kumar (supra) would have no

applicability to the facts of the present case. In case of Jitendra

Kumar Singh (supra), the precise issue that came up for

consideration before the Hon'ble Apex Court was as to whether an

OBC who had applied exercising his option as a reserved category

candidate thus becoming eligible to be considered against

"reserved vacancy", can also be considered against an

unreserved vacancy if he/she secures more marks than the last

candidate in the general category. Likewise, in the case of Union

of India v. Ramesh Kumar (supra), the question that arose was

as to whether candidates belonging to reserved category who get

recommended against general/unreserved vacancies on account

of their merit (without the benefit of any relaxation/concession),

can opt for a higher choice of service earmarked for a reserved

category and thereby migrate to reserved category. Such

question came to be examined in the light of the relevant

statutory provisions i.e. the Civil Services Examination Rules

(amended vide notification dated 4.12.2004). The afore-noticed

two judicial precedents would not apply herein inasmuch as the

ex-Serviceman category in the present case were not seeking

migration but were selected in their own category. CIVIL WRIT PETITION NO.7850 OF 2011 -26-

23. In the light of the statutory mandate whereby

candidates belonging to the ex-Serviceman category were not to

appear in the optional subjects, under Rule 5(2) of the 1982 Rules

and, on the other hand, Rule 13-A read with Appendix-III of the

1976 Rules require the candidates pertaining to Register 'B' to

appear in the compulsory subjects as also optional subjects in the

main competitive examination, it was certainly open for the

Commission to evolve and adopt a criteria in determining merit

inter se the candidates. Under Clause 8 of Appendix-III of 1976

Rules, it is stipulated that the names of qualified and unqualified

candidates shall be arranged in the order of merit according to

the aggregate marks obtained at the main competitive

examination. Such provision would have to be read in the light of

Rule 5(2) of the 1982 Rules and would require a harmonious

construction in the light of the settled principle of interpretation

of statutes. Such principle was clearly noticed and enunciated by

the Hon'ble Supreme Court in P.Raghava Kurup and another v.

V.Anantha Kumari and others, (2007)9 SCC 179 and it was held in

the following terms:

"Therefore, the intention of the rule-framing

authority can be brought forth by reading these two

provisions harmoniously. The settled principle of

interpretation of statute is that if two rules can be read

harmoniously and the object sought to be achieved

can be achieved without violation of any rule then it

should be so read. Secondly, it may also be relevant

to mention that Note (1) to Rule 1 was inserted in1982 CIVIL WRIT PETITION NO.7850 OF 2011 -27-

subsequently knowing fully well that Rule 43-B starts

with non obstante clause. Therefore, the note which is

subsequent to the Rules of 1959 can be read

harmoniously without doing any violence to Rule 43-

B."

24. Insofar as the ex-Serviceman category is concerned,

Rule 5 is couched in categoric terms and it starts with a non-

obstante clause to the effect that in case of appointment through

competitive examination notwithstanding anything contained in

the concerned service Rules, the ex-serviceman shall not be

required to appear in the optional subjects. Rule 9, sub-clause (2)

of 1982 Rules further mandates that all concerned service Rules

shall be subject to the provisions of these Rules. Accordingly, it is

in the light of such provisions of 1976 Rules and 1982 Rules

having been construed harmoniously that the Commission has

adopted as criteria for determination of a combined merit list

inter se all the categories of candidates pertaining to Register 'B'

on the basis of marks secured in the papers by the candidates of

different categories in which they appeared as per Rules and by

working out the percentage of marks obtained in these papers as

well as viva voce.

25. Even though, such criteria adopted by the Commission

is not a subject matter of challenge in the instant writ petition,

still it is held that the discretion exercised by the

appropriate/Competent Authority towards determination of merit

inter se the candidates would not be interfered with by this Court

in the exercise of judicial review unless the same is shown to be CIVIL WRIT PETITION NO.7850 OF 2011 -28-

perverse and illegal. It can be safely concluded that the

Commission in adopting such criteria and determining inter se

merit between various categories including general category and

ex-Serviceman category candidates in the light of the provisions

of Rule 13-A, Appendix-III of 1976 Rules and Rules 5 and 9 of

1982 Rules has indeed struck a balance and has adopted a

harmonious approach. The observations of the Hon'ble Apex

Court in the case of Chairman, All India Railway Recruitment

Board and another v. K.Shyam Kumar and others, (2010)6 SCC

614 in this regard would be most relevant:

"Proportionality requires the court to judge whether

action taken was really needed as well as whether it

was within the range of courses of action which could

reasonably be followed. Proportionality is more

concerned with the aims and intention of the decision-

maker and whether the decision-maker has achieved

more or less the correct balance or equilibrium. The

court entrusted with the task of judicial review has to

examine whether decision taken by the authority is

proportionate i.e. well balanced and harmonious, to

this extent the court may indulge in a merit review and

if the court finds that the decision is proportionate, it

seldom interferes with the decision taken and if it finds

that the decision is disproportionate i.e. if the court

feels that it is not well balanced or harmonious and

does not stand to reason it may tend to interfere.

Leyland and Anthony in Textbook on CIVIL WRIT PETITION NO.7850 OF 2011 -29-

administrative Law (5th Edn.OUP, 2005) at p.331 has

amply put as follows:

"Proportionality works on the assumption

that administrative action ought not to go beyond

what is necessary to achieve its desired results

(in everyday terms, that you should not use a

sledgehammer to crack a nut) and in contrast to

irrationality is often understood to bring the

courts much closer to reviewing the merits of a

decision."

The courts have to develop an indefeasible and

principled approach to proportionality, till that is done

there will always be an overlapping between the

traditional grounds of review and the principle of

proportionality and the cases would continue to be

decided in the same manner whichever principle is

adopted. Proportionality as the word indicates has

reference to variables or comparison, it enables the

court to apply the principle with various degrees of

intensity and offers a potentially deeper inquiry into

the reasons, projected by the decision-maker."

26. It has also been contended strenuously on behalf of the

petitioner that the action of the Commission in adopting a criteria

for determination of a combined merit list and which, in turn, has

resulted in the passing of the impugned order dated 28.12.2010,

Annexure P8, determining the seniority inter se the candidates

has no legislative sanction and as such, the impugned order CIVIL WRIT PETITION NO.7850 OF 2011 -30-

cannot sustain. Even such contention is without merit. It is by

now well settled that under Article 162 of the Constitution of

India, the executive power of a State would extend to matters

upon which the legislature of the State has competence to

legislate. The executive power of the State would not be confined

to matters which already stand governed by legislation. Such

executive power cannot be circumscribed and it would be open

for the Government/appropriate authority to carry on the

administration unless such act is violative of any provisions of

Constitution or any law. In BM Nagarajan and others v. State of

Mysore and others, AIR 1966 SC 1942, it was held by the Hon'ble

Supreme Court in the following terms:

"It would be convenient to deal with this

argument at this stage. Mr.Nambiar contends that the

words "shall be as set forth in the rules of recruitment

of such service specially made in that behalf" clearly

show that till the rules are made in that behalf no

recruitment can be made to any service. We are

unable to accept this contention. First it is not

obligatory under proviso to Art.309 to make rules of

recruitment, etc., before a service can be constituted

or a post created or filled. This is not to say that it is

not desirable that ordinarily rules should be made on

all matters which are susceptible of being embodied in

rules. Secondly, the State Government has executive

power, in relation to all matters with respect to which

the Legislature of the State has power, to make laws. CIVIL WRIT PETITION NO.7850 OF 2011 -31-

It follows from this that the State Government will

have executive power in respect of List II, Entry 41,

State Public Services. It was settled by this Court in

Ram Jawaya Kapur v. State of Punjab, 1955-2 SCR

225: (AIR 1955 SC 549), that it is not necessary that

there must be a law already in existence before the

executive is enabled to function and that the powers of

the executive are limited merely to the carrying out of

these laws. We see nothing in the terms of Article 309

of the Constitution which abridges the power of the

executive to act under Art.162 of the Constitution

without a law. It is hardly necessary to mention that if

there is a statutory rule or an act on the matter, the

executive must abide by that act or rule and it cannot

in exercise of the executive power under Art.162 of the

Constitution ignore or act contrary to that rule or act."

27. Such proposition has held the field all through and

even in a recent judgment of the Hon'ble Supreme Court in

Secretary, A.P.D.Jain Pathshala and others v. Shivaji Bhagwat

More and others, (2011)13 SCC 99, it was observed in the

following terms:

"Article 162 of the Constitution, no doubt,

provides that subject to the provisions of the

Constitution, the executive power of a State shall

extend to the matters upon which the legislature of the

State has competence to legislate and are not

confined to matters over which legislation has been CIVIL WRIT PETITION NO.7850 OF 2011 -32-

already passed. It is also well settled that so long as

the State Government does not go against the

provisions of the Constitution or any law, the width and

amplitude of its executive power under Article 162

cannot be circumscribed; and if there is no enactment

covering a particular aspect, the Government could

carry on the administration by issuing administrative

directions or instructions, until the legislature makes a

law in that behalf (See Ram Jawaya Kapur v. State of

Punjab and Bishambhar Dayal Chandra Mohan v.

State of U.P.)".

28. Yet another poser that would require to be answered is

as to whether the impugned order dated 28.12.2010 is a

reasoned order and as to whether it discloses the basis of

determination of the seniority of PCS (Executive Branch) Officers

in question. The answer is clearly in the affirmative. A minute

perusal of the impugned order would reveal that the judgments of

the Hon'ble Supreme Court in Arvinder Singh Bains v. State of

Punjab, AIR 2006 SC 2265, as also Ajit Singh Januja and others v.

State of Punjab and others, JT 1996(2) SC 727 and Ajit Singh-II

and others v. State of Punjab and others, JT 1999(7) SC 153

have been noticed for embarking upon the exercise to determine

the seniority of PCS (Executive Branch) Officers. It has also been

noticed that the seniority had not been determined earlier in point

of time. Still further, in para 16 of the impugned order, it has

been recited that the inter se seniority of the PCS (Executive

Branch) Officers recruited through various Registers is being fixed CIVIL WRIT PETITION NO.7850 OF 2011 -33-

as per merit prepared by the Public Service Commission. The

reference to the letter dated 2.12.1992 in para 17 of the

impugned order is only with reference to the allocation and not

towards determination of a combined merit inter se the

candidates. As has been already noticed, the combined merit list

pertaining to PCS (Executive Branch) and other Allied Services

Examination was prepared and sent first in point of time by the

Commission to the State Government vide letter dated 4.7.2001

and which was thereafter revised in terms of letter dated

25.4.2005. Such combined merit list (as revised) forms the basis

of the final seniority list issued vide order dated 28.12.2010. The

impugned order, Annexure P8, cannot be termed to be bereft of

reasoning.

29. Even though at the stage of arguments, the ground of

malafide was not pressed, but in the pleadings, a specific ground

has been raised that the entire action as regards issuance of a

tentative seniority list in March 2008, inviting objections thereto

and thereafter issuance of the impugned seniority list vide order

dated 28.12.2010 has been done at the behest of respondent

No.3 who had been posted as Secretary of the respondent-Punjab

Public Service Commission. Even such ground is wholly mis-

conceived and untenable. Respondent No.3 was posted as

Secretary of the Commission only in May 2007. The matter with

regard to the Commission having been called upon to furnish the

combined merit list by the State Government stood already

initiated in terms of issuance of letters dated 31.5.2000 and

22.3.2001, Annexures R1 and R2 respectively appended with the CIVIL WRIT PETITION NO.7850 OF 2011 -34-

reply filed on behalf of respondent No.1. In response thereto, a

combined merit list of the 1990 batch had been sent by the

Commission to the State Government first in point of time on

4.7.2001 which was thereafter revised on 21.4.2005. The

assertion of the petitioner attributing malafides upon respondent

No.3 insofar as issuance of the impugned order is concerned, is

absolutely baseless in the light of such uncontroverted facts.

30. For the reasons recorded above and in the light of the

fact that in the combined merit list of the 1990 batch prepared by

the Commission, the names of the private respondents have been

reflected higher in order of merit as compared to the petitioner

and which, in turn, has formed the basis of finalization of the

seniority inter se, this Court does not find any basis that would

warrant interference in the impugned order dated 28.12.2010

whereby the seniority of the petitioner as also the private

respondents in the cadre of Punjab Civil Services (Executive

Branch) relating to the recruitment process of the year 1990 has

been finally determined.

31. The petitions are, accordingly, dismissed.

( TEJINDER SINGH DHINDSA ) October 18, 2012 JUDGE SRM

Note: Whether to be referred to Reporter? Yes/No