Chiranjeev Singh and Others vs State of Punjab and Others

Rajiv Narain Raina, J.—This order will dispose of CWP No. 14686 of 2012 titled Chiranjeev Singh and others vs. State of Punjab and others, CWP No. 14825 of 2012 titled Gurvinder Singh and others vs. State of Punjab and others & CWP No. 16546 of 2012 titled Sita Devi and another vs. State of Punjab and others as common questions of law and fact are involved in the three cases which can conveniently be decided by a single order. The facts are taken from CWP No. 14686 of 2012.

The brief facts are that the Subordinate Services Selection Board issued an advertisement on July 15, 2011 inviting applications for filling up 225 posts of Junior Coaches in different sports and games sponsored by the State Government in its sports facilities in different Districts in the State of Punjab. The advertisement stipulated that selection would be made on the basis of merit to be prepared on the basis of marks obtained by the candidates in Diploma in Coaching awarded by the National Institutes of Sports. There was a stipulation in the advertisement that no interview would be held in the selection process.

The present petitioners were serving as Junior Coaches in the Sports Department of Punjab for about two and half years prior to the appearance of the public advertisement. The Sports Department had appointed them by outsourcing the recruitment process to a private agency being a private company called Accenture Management Services Pvt. Ltd. (presently known as M/s. Gretis India Pvt. Ltd.) The Selection Committee comprised the Director Sports, Punjab (Sh. Pargat Singh) and certain other Sports Officers, apart from one representative of the private company on board. The letters of appointment were not issued by the Government but by the Sports Management Company. The petitioners were deployed to work under various District Sports Officers on the directions of the Director Sports, Punjab. They were all qualified to qualify the test of Junior Coaches in terms of the statutory rules known as the Punjab Sports (Group-C) Service Rules, 2001 ("2001 Rules"). They possessed the degree of B.P. Ed. and M.P. Ed. and possessed Diploma in Coaching in different field games acquired from the National Institute of Sports, Patiala. They had all participated in various National and International tournaments as Coaches and many of them were members of various Committees set up to organize tournaments. They were called in as experts for conducting fitness trials in recruitment of Police Constables during their engagement as Junior Coaches. They were still in position when the advertisement dated July 15, 2011 was issued in newspapers calling applications from eligible candidates from the open employment market.

The advertisement laid down the following educational/technical qualifications:-

"(i) should have passed Matriculation Examination in Second Division or should have passed Senior Secondary Part II Examination from a recognized university or institution;

(ii) should possess Diploma in Coaching from National Institute of Sports;

Provided that in case of games in which regular courses are not available at National Institute of Sports, candidate should possess Diploma in Physical Education or should be Bachelor of Physical Education from a recognized university or institution; and

should be position holder of Open National or First position holder of All India Inter-University meet."

The mode of selection was prescribed as below:-

"Mode of Selection: No interview shall be conducted during recruitment process. The candidates possessing essential qualification/Technical qualification and achievement in sports shall only be called for counseling for verification of their documents/certificates. After Counseling, the merit of different categories shall be prepared for different games (the detailed particulars where of have been given in the advertisement) on the basis of percentage of marks obtained by the candidates in technical qualification of candidates (Diploma in Coaching from National Institute of sports or Diploma in Physical Education or Degree in Physical Education, whichever be applicable."

In order to match the advertised qualifications and the qualifications laid down in Appendix ''B'' to the 2001 Rules it would be appropriate to notice rule position for appointment to the post of Junior Coaches:-

"(i) should have passed Matriculation Examination in Second Division or should have passed Senior Secondary Part II Examination from a recognized university or institution;

(ii) should possess Diploma in Coaching from National Institute of Sports;

Provided that in case of games in which regular courses are not available at National Institute of Sports, candidate should possess Diploma in Physical Education or should be Bachelor of Physical Education from a recognized university or institution; and

should be position holder of Open National or First position holder of All India Inter-University meet."

The method of appointment, qualifications and experience is prescribed in Rule 5 of the 2001 Rules which reads as follows:-

"5. Method of appointment qualifications and experience.

(1) All appointments to the service shall be made in the manner specified in Appendix ''B''.

Provided that if no suitable candidate is available for appointment by promotion or by direct recruitment, as the case may be, appointment to the Service shall be made by transfer of a person holding a similar or identical post under the Punjab Govt, other State Govts. of Govt. of India.

(2) No person shall be appointed to a post in the Service unless he possess the qualification and experience as specified in Appendix B''."

The qualification and experience is not relaxable as per Rule 5(2).

It is the case of the petitioners that the terms of the advertisement issued by the Board deviates from the position in Rule 5 of the 2001 Rules and due regard and weightage to the principle of suitability of candidates as laid down in the 2001 Rules was not given. The Board is accused of not devising any criteria for determining the suitability of the candidates for the post. The Board was criticized of abrogating the element of experience of the petitioners earned in service as Junior Coaches although appointed to serve Government through a private agency. This experience earned far outweighed other considerations and has jeopardized the interest of the State in not selecting experienced Coaches by preferring raw hands to be evaluated only on marks obtained by them on paper in the Diploma in Coaching which was the essential educational qualification while many of them hold advanced education and by this they should be preferred to fresh hands. It is complained that the criteria evolved by the Board is illogical and totally arbitrary and is against the larger public interest in the field of Sports of which Punjab has a long and rich tradition and special place in the comity of States that make the nation. If the selection is based on marks alone then the selection through the Board becomes the meaningless exercise since the computer can do the same work of selection and more accurately by a programme based result declaration since interview was not made a part of the advertised criteria. The role of the Board is hardly creative and is played without the human touch. If the State is set out to find the best available talent and invigorate sports in Punjab the result cannot be achieved by scores in examinations and certificates in field of sports and games.

Aggrieved by the abridged criteria, the petitioners in the first instance approached this Court by CWP No. 13688 of 2011 titled Chiranjeev Singh and others vs. State of Punjab and others seeking issuance of writ of certiorari praying for quashing of the advertisement dated July 15, 2011 on various grounds of challenge. The writ petition was disposed of vide order dated August 01, 2011. This Court noticed that serious contentions have been raised which required consideration by the competent authority before proceeding further with the selection process. The Court noticed the arguments addressed before it on the point that the advertisement was contrary to statutory service rules. It ordered reconsideration. In the consideration which took place at the level of Secretary, Government of Punjab, Department of Sports and Youth Services there resulted a decision of the Government dated January 17, 2012 agreeing with the petitioners that there were defects in the advertisement which required nullification of the recruitment process and issuance of a fresh advertisement to make recruitment in accordance with the rules. This is how the fresh advertisement dated July 15, 2012 was born. In the fresh recruitment process, the advertisement lays down the following method of selection:-

"Method of Selection"

"No interview shall be conducted during recruitment process. The candidates on the basis of their educational/technical qualification and achievement in sports, shall be called for scrutinizing their documents (Certificates).

After counseling, on the basis of merit prepared for concerned games for each category (the details whereof have been given in the advertisement), the merit list shall be prepared on the basis of marks obtained by concerned candidates in their technical qualification (diploma in coaching from National Institute of Sports, or diploma in physical education, or degree of Bachelor of Physical Education, which ever may be applicable. The candidates with qualification of Bachelor of Physical Education shall be given preference over candidates with Diploma in Physical Education."

It is against this advertisement that the present petition has been filed by the incumbent Junior Coaches recruited through private agency but working with Government. The petitioners complain that the terms and conditions of the fresh advertisement suffer from same vices as in the earlier advertisement and no real change has been brought about in the method of selection since the advertisement still suffers from the same legal defect or lacuna which vitiated the earlier advertisement dated July 15, 2011 which was quashed by the Secretary to Government, Department of Sports and Youth Services vide Annexure P-8 dated January 17, 2012. The advertisement dated July 15, 2012 has done no better. A writ of certiorari has again be sought to quash the selection criteria as suffering from the same defects as the earlier advertisement portrayed and is not in accordance with the 2001 Rules.

The fresh selection process has also been questioned on the ground that since the petitioners have worked for the last few years in the Sports Department to the satisfaction of their superiors they are to be treated as a separate class and cannot be mingled with first time aspirants to secure regular public appointment as Junior Coaches. The petitioners cite authority in State of Bihar vs. Bihar Rajya Sahkarita Prabandhak Sewa Sangh, 1998(4) SCT 378 to buttress their argument that they deserve to be treated as a separate class. In this case, selection of Managers of various Cooperative Societies was considered by the Supreme Court. Candidates already working on the said post were also called to appear for the examination along with new entrants. The Supreme Court observed that candidates already working were to be considered as a separate class and in the facts and circumstances either a separate examination should be held for them for determining their suitability for absorption or a reasonable number of posts available may be set apart for being filled up by such already working employees. It was further directed that the question papers should be separately set up for them keeping in mind the conditions of such already working employees with respect to age and past service etc. However, the distinguishing feature is that in the aforesaid case in State of Bihar (supra) the incumbent Managers were appointed directly by the Department of the Government in the State of Bihar unlike in the present case where the recruitment process was outsourced and the appointment letters issued by the private company albeit to serve as Junior Coaches under the administrative control of the District Sports Officers in the various Districts of the State of Punjab. The petitioners complain that the number of years spent in service as Junior Coaches will be lost to them as some of them would become overage by the time of the next recruitment if they have not already.

The moot question is whether the test of suitability is express or implied in Rule 5 of the 2001 Rules and whether the infirmity pointed out by the petitioners in the earlier writ petition and accepted by the Secretary to Government, Department of Sports and Youth Services is a debilitating factor on the basis of which the impugned advertisement should be quashed and the State ordered to carry out fresh exercise of recruitment after laying down an objective criteria which is reasonable and not discriminatory and serves the larger public interest of experience over raw hands.

In order to answer the above questions the discussion of the rule position is necessary. The post of Junior Coaches is to be filled 100% by direct recruitment. A candidate should have passed the Matriculation Examination in the Second Division or should have passed Senior Secondary Part II Examination from a recognized university or institution. This means that either of the two is an essential qualification but not necessarily both existing at one and the same time. The second condition is that the candidate should possess Diploma in Coaching obtained from the National Institute of Sports, Patiala.

There is no dispute on facts that the petitioners possess the aforesaid Diploma. The proviso to Clause IV of Appendix ''B'' to the 2001 Rules provides that in case of games in which regular courses are not available at the National Institute of Sports then such candidate should possess Diploma in Physical Education or should hold a Bachelor of Physical Education degree from a recognized university or institution but in both the cases in the proviso person should be a position holder in Open National or First position holder of an All India Inter-University meet. In other words, a Matriculate in Second Division who holds Diploma in Coaching from National Institute of Sports is eligible provided a regular course in the game is not available at the National Institute of Sports then D.P. Ed. or B.P. Ed. is essential with the embargo that in either of the cases candidate should be a position holder in either of the two types of athletic meets in Open National or First position holder in All India Inter-University meet. The formula adopted in the 2001 Rules is in straitjacket. The rule searches person who is educationally qualified at school and post school education of the special type required but should not be a mere participant in an Open National or Inter-University meet. The rule is designed intrinsically on merit in field and track games and school level Matriculation in Second Division have been equated with Senior Secondary Part II Examination. The diploma or degree as the case may be is only a qualifier. The concept of suitability depends on the rule-makers design but not evaluated through any extrinsic aid such as interview or vive voce. This being the rule position in Appendix ''B'' it requires to be juxtaposed with the advertisement of July 15, 2012. The method of selection in the advertisement declares in the first line that no interview shall be conducted during the recruitment process. The documents of the candidates will be scrutinized to test eligibility with respect to educational and technical qualifications and achievement in sports. The candidates who qualify the scrutiny test are put through counselling and the merit list would be prepared subject-wise in the game for each category as have been earmarked in the proportion advertised. The two equivalent school level examinations and the two separate technical qualifications of D.P. Ed. or B.P. Ed. are to be evaluated inter se the competitors on the basis of marks obtained in these examinations. Higher marks being preferred to lower marks with the further prescription that the qualification of B.P. Ed. will be given preference over candidates with D.P. Ed. The conditions precedent other than in Clause IV of Appendix ''B'' of the rules and the advertised qualifications stipulated for the post are both to be tested on Rule 5 which is the statutory in nature. Rule 5 prescribes that all appointments to the service shall be made in the manner specified in Appendix ''B''. Rule 5(2) prescribes that no person shall be appointed to a post in the service, unless he possesses the qualifications and experiences as specified in Appendix "B". The counsel for the respondents have read out the vernacular of the advertisement from where in Clause 3 where the word "ate" has been employed which is ambiguous "and" or "or" and, therefore, it cannot be said that advertisement of 2012 is not in sync with the 2001 Rules.

In the present case, we are not concerned with proviso to Rule 5(1) or Rule 5(3) or Rule 5(4). We are not concerned with appointment to service by promotion in this case which shall be made on the basis of seniority-cum-merit since the post is at level 1 of the pyramid meant for direct recruitment. The word "suitable" has relevance only when the proviso to Rule 5(1) has to be resorted to. When the proviso speaks of direct recruitment it only refers to a situation where no suitable candidate is found by direct recruitment then the Department can draw suitable candidates by transfer of a person holding similar or identical post either under the Punjab Government or other State Governments or the Government of India. I do not read however hard I try that suitability applies to direct appointment to be measured by the formula in Appendix "B". Experience has no place in the scheme of Appendix "B" while it deals with Junior Coaches. It is, therefore, a misnomer and a false hope that experience is part of the apparatus of the mode of recruitment and the term "experience" in Rule 5(1) can refer to other posts other than Junior Coaches for example in the case of Clause 3 of Appendix "B", Senior Scale Stenographers'' promotions can be made from feeder cadre of Junior Scale Stenographers, who have experience of working as such for a minimum period of five years etc. and who qualify the test of Stenography in English and Punjabi languages. There may be other posts which need not be adverted to here since Clause IV of Appendix "B" read with Rule 5 is the complete prescription to make direct recruitment as Junior Coaches. In this line of reasoning, it appears to this Court that neither experience nor age nor past experience in Punjab Government is mandatory or the better option. It is quite another matter if the Government decides to give weightage to past service in the Department of Sports and Youth Services earned by the petitioners albeit through outsourcing appointments it is always free to do so. I am not in a position to uphold or castigate the method of recruitment resorted to by the Government through the aegis of M/s. Gretis India Pvt. Ltd. but one thing is certain that the method adopted prevented regular recruitment for years. The reasons for such recruitment are not known on the judicial file.

When the petitioners joined the Sports Department as Junior Coaches under appointment orders issued by a Private Limited Company they would be understood as having read Rule 5 and Appendix "B" to the 2001 Rules as ignorance of the law is no excuse. To understand the case even better we would need to acquaint ourselves with the appointment letter issued by M/s. Gretis India Pvt. Ltd. to petitioner Chiranjeev Singh by way of an example since similar appointment letters were admittedly issued to the rest of the petitioners. By the appointment letter dated October 03, 2008 service was offered when the candidature of Chiranjeev Singh was found suitable for the post of Executive Coach-2. The terms and conditions in the appointment letter (P-1) informed them inter alia that:-

"1. You will paid a consolidated salary of Rs. 12,280/- per month.

Your Salary will be subjected for statutory/other deductions viz., P.F., E.S.I., T.D.S. or SSS (Salary Saving Scheme), if any etc. applicable to you.

You will be entitled for re-imbursement of expenses and allowances, if any, attached to your job functions.

You will carry out all the jobs which may be assigned to you from time to time by the management of the company on a job work basis. Further you shall carry out all the jobs which may be assigned to you by the clients of the company for rendering support services to whom you may be deployed.

You will bear in mind fully well that the company is employing you for the exclusive purpose of deploying you for rendering support services to its clients. Your employment is on a temporary basis. Upon your profile not being found suitable by any other clients of the company or due to any other reason, your services can be dispensed by the company at any stage at its sole discretion.

You will discharge your job functions with utmost sense of austerity, honesty and personal integrity, failing which disciplinary action can be initiated against you or domestic inquiry could be held to go into the details.

You shall be on probation for a six months. During the probation period your service shall liable to the terminated by the company without giving any notice reason. After the probation period, your service shall be liable to be terminated by the company, without assigning any reason what so ever, by giving one month prior notice or paying salary in lieu of the notice period of one month. At any point of time, if you want to quit this job, you are required to serve at least two months notice to the company.

You will be required to wear Identity Card/Logo of the company while on duty.

You can be transferred from one place to another for rendering support services to the clients of the company anywhere in India.

You will abide by the service rules of the company, as applicable from time to time.

You will follow the working hours, weekly off days and holidays as per the convenience of such clients of the company for rendering support services to whom you may be deployed.

You shall not take any employment or professional association with any client organization of the company for a period of 2 years after termination of your employment or disassociation from the company under any circumstances whatsoever. In the event if you are found to be doing so, the company shall be entitled to recover from you the entire amount of salary or wages or professional fee paid to you by the company during the period of the employment or association with the company."

A reading of the appointment letter shows two important things. The petitioners were not appointed to the post of Junior Coaches but were appointed under the nomenclature Executive Coach-2, a post not mentioned in the Rules. It is a different matter if the job content of Junior Coach and Executive Coach-2 may be similar or identical but it is not one and the same thing when read with the other conditions of service in the letter dated October 03, 2008. There is no prayer in the petition that the letters of appointment were in abuse of authority to appoint the petitioners to public post through the method of outsourcing to achieve the same result in the context of the relief sought in this petition. When this is the formulated position in appointment offers accepted by the petitioners then there are only two possible ways to come out of the situation; firstly, the department embraces the petitioners as their own employees by removing the intermediary Company from the way and converting the appointments made in the year 2008 and treating them as direct recruits. The difficulty in this course of action would be that the entry of the petitioners via the private company would not be legal and valid appointment to a post under the State though they may be working in the affairs of the State and such appointments may not pass the test of Articles 14 & 16 of the Constitution of India of equal opportunity protections. Many eligible persons may not have responded to the advertisement in 2008 or have applied to serve Government through this convoluted process of recruitment in deviation of the responsibility to appoint regular hands through direct recruitment after calling applications from all eligible candidates then available. Neither was there a promise held out by the Government of regularizing the services of the petitioners in Government service nor a commitment of permanent tenure service under the State. Consequently, the petitioners stand on no rule territory and on no man''s land.

The second method which might bring relief to the petitioners would be a certiorari quashing the offer of appointment itself on which basis the petitioners joined the company not the Government directly. But there are no foundations laid in the petition that the method adopted was mala fide; suffered from legal malice; was contrary to rule and the constitutional scheme of appointments or better still the rule itself was bad on a challenge laid to its vires and unconstitutionality. It is also not pleaded that outsourcing method was a dubious ploy to carry out the work of the Government at low cost, gravely prejudicing and injuring the petitioners. It is also not the case set up by the petitioners that the method adopted by the Department prevented regular recruitment while the petitioners were willing to offer themselves for the same and some of them, as I read the petition, possessed higher qualifications than the rule required and they hands on working experience discharging duties and responsibilities of the post which are akin to Junior Coaches in Government although they served as Executive Coach-2. However, Court intervention is not possible in proceedings under Article 226 of the Constitutional of India to convert the post of Executive Coach-2 to Junior Coach and to mandamus the State to change the name of the employer and the nature and character of employment. Even when such a plea may be based on the principles of equity, justice and good conscience in the first argument, the Court has no place and has only stand-by jurisdiction to monitor the rule unless shown to be grossly arbitrary and discriminatory. In the second argument, the Court is not equipped nor can it to forge new tools to grant relief prayed for of giving suitable weightage to qualifications, experience and age.

This Court would need to notice the ruling of the Supreme Court in Shri Parvez Qadir Vs. Union of India (UOI), where the Supreme Court explained the meaning and purport of the word "suitability" observing:-

"It is also contended that regulation 5 of the Initial Recruitment Regulations regarding adjudging of the suitability is not valid. The word ''suitability'' itself is correlated with object of recruitment, namely, that a person has to be considered suitable for appointment to a superior service which itself furnishes the norm that he is considered suitable having regard to his service in the State Forest Service. This in turn refers only to the past records of the service in the State as an officer of the State Forest Service. The special Selection Board under regulation 5(2)(a) has to adjudge the suitability of an officer from his service records which forms the basis of the preparation of the list and the list so prepared after consideration of the records would reflect the overall assessment of the officers of the State Forest Service."

Suitability in this case refers to past service in the State Forest Department on a post in the cadre of service. The principle laid down is salutary but unfortunately cannot be applied to the case in hand where there are several missing links to connect the petitioners to the Government permanently with the intermediary standing between them. It also cannot be said that there is anything inherently bad in awarding weightage to experience and higher qualifications earned on the job while working as Executive Coach-2. There may even be fairness and justness in the cause but equity has no place when the field is occupied by statutory rules then equity must give way to the command of service rules.

Sympathy and compassion are not to be invoked by the Court as they have not of judicially manageable standards.

The State in its reply has stated and correctly so that Appendix "B" of 2001 Rules contains no provision of weightage to experience in the direct recruitment as Junior Coaches. It has been averred that the criterion to award marks in the present recruitment process is the same as it was many years ago. Therefore, nothing new was added or taken away. The result desired by the petitioners can only be achieved by an amendment to the rules and this is what the Board says in a separate reply dated November 22, 2012 to the petition. It is for the State Government to lay down criteria for filling the post and the maximum age for recruitment has been applied strictly in accordance with The Punjab Civil Services (General and Common Conditions of Service) Rules, 1994. The advertised age is between 18 to 37 as on January 01, 2011.

It has been lastly but valiantly argued by the petitioners on the strength of Annexure P-10 dated March 29, 2013 whereby Government has approved the proposal of converting the post of System Manager/Assistant System Manager (System Analyst) and 40 Data Entry Operators in the Forest and Wild Life Protection Department through outsourcing by Punjab Information & Communication Technology Corporation (Punjab Infotech) to offer employment on contract basis for two reasons; one, that the process has been discontinued since about 2005 and, secondly, Punjab Infotech had refused to provide staff for the aforesaid posts through outsourcing services and informed that in case the Forest Department wanted to continue services of these employees the Department may do so at its own level. Faced with this dilemma the Forest Department sent a proposal to the Government which was accepted by it on March 08, 2013. Those employees now are employed on contract basis directly with the Government. The petitioners claim similar treatment. This argument is not acceptable since in the case of the Forest and Wild Life Protection Department outsourcing was from Punjab Infotech which is a State Government undertaking which was incorporated in 1976 as the nodal agency of the Government of Punjab for the promotion of IT industry in the State. In the present case, the outsourcing is through a Private Limited Company. There is a reasonable classification between the two set of organizations and, therefore, the petitioners cannot draw water from this well. It will thus not be safe to draw parallels between Punjab Infotech and Accenture/Gretis.

For the foregoing reasons, it is not possible to interfere in the matter in writ jurisdiction and accordingly the petitions are dismissed. As a result, the interim order dated August 02, 2012 directing the respondents that during the pendency of the writ petition, the selection process shall not be finalized under the advertisement dated July 15, 2012 (P-9) has to be vacated.

However, the respondent-State would on principles of fair play, justice and good conscience consider the cases of eligible candidates among the petitioners in case they have applied for the post in order to balance out the equities, not from rules but from exploitation of labour since 2008 then by applying the principle of means justifying the ends then a direction is issued to the Government to consider the cases of the petitioners as are overage after they joined as Executive Coach-2 and have continued working to treat them as eligible. This would be the fair and just thing in the special facts and circumstances of the case. However, in case, they do not make it on merit without weightage of experience or have not applied for the posts advertised then the services of the petitioners will not be dispensed with till the regular recruits are offered appointment and join the posts.