Gurmel Singh vs State of Punjab and others

R.S. Narula, J.—This is a petition under Article 226 of the Constitution for the issue of a writ in the nature of quo warranto for quashing the order of the Punjab Government dated January 30, 1970, appointing S.C Chadha, respondent No. 3, as the Senior Technical Officer (Textiles) in the Government Industrial Development cum-Service Centre for Textiles, Ludhiana (Annexure ''D'' to the writ petition) and the further order of the Government dated July 21, 1970 (Annexure ''H'') extending said appointment of respondent No. 3 for a further period of six months. The petitioner has also prayed under Articles 226 and 227 of the Constitution for a direction being issued to respondents 1 and 2 (The State of Punjab and the Director of Industries, Punjab) to fill in the post in question by departmental promotion instead of advertising the same. The brief facts leading to the filing to this petition may first be surveyed.

Gurmel Singh petitioner is admittedly a member of one of the scheduled castes, as recognized by the Punjab Government as well as by the Government of India. He had been appointed as an Assistant Superintendent, Quality Marking Centre (Textiles) on July 1, 1965, in the composite State of Punjab. As disclosed in the State''s return, the petitioner was allocated to the Union Territory of Himachal Pradesh consequent on the bifurcation of the Punjab State under the Punjab Re organisation Act, 1966, Thereafter, he applied for the post of a Technical Manager (Textiles) Finishing Plant, Ludhiana, for which he was selected through the Punjab Public Service Commission.

petitioner joined that post on August 1, 1968, in the time scale of Rs. 250-25-500. The petitioner is still working in that post According to the respondents, the lien of the petitioner on his earlier post in the erstwhile Punjab State stood terminated on his leaving the service of the Himachal Pradesh Administration and on his being appointed to a new post on being selected by the Public Service Commission for the same. For the purpose of deciding this case, it is unnecessary to travel into the merits of that contention. I proceed to decide this petition on the assumption that the petitioner''s appointment to the post of Technical Manager in the Finishing Plant at Ludhiana was a new appointment. petitioner has filed, as Annexure ''A'' to the petition, copy of letter dated April 26, 1969, from the Director Industries to the Senior Technical Officers, etc. with which the gradation list of the employees allocated to Punjab was sent for the information of the officers concerned. In the said gradation list showing the position as it stood on September 30, 1968 (Annexure ''A/1'') the petitioner is shown as the solitary Technical Manager in the grade of Rs. 250-25-500.

The post of a Senior Technical Officer was created by the Punjab Government in or about May. 1969. The petitioner represented to the Government for being promoted to that post. In Government''s reply dated September 8, 1969 (Annexure B'') the petitioner was informed that the appointment of the Senior Technical Officer was to be made through the Punjab Public Service Commission and the Commiss on was being requested to advertise the post. petitioner was, therefore, advised to apply for that post through proper channel as and when the Public Service Commission invites applications. On September 10, 1969, the petitioner represented to the Government that instead of issuing an advertisement for the same the post should be filled by departmental promotion as one post of Senior Technical Officer already stood filled by direct appointment. After petitioner had issued a reminder dated December 23, 1969, in that connection, he received Government''s reply dated January 9, 1996 (Annexure ''C'') wherein it was stated that the matter was under consideration and that the petitioner would be informed of the decision taken in respect thereof. The question of filling the post by promotion is out of question, so far as I am concerned, as the Government has definitely averred in its return that the post is to be riled by direct appointment through the Public Service Commission and it is no one''s right to compel the Government to change the mode of appointment unless the mode adopted by the Government is contrary to same statutory rules or established practice. The fact, however, remains, that the Government did not take appropriate legal steps to have the post in question filled by direct appointment through the Public Service Commission, Admittedly, no advertisement for the post has been issued till now. In all probability, the Public Service Commission was never actually asked to advertise for the post or to recommend any one for filling the same. What happened was that by keeping the petitioner at bay by telling him that the matter was under consideration and he would be informed of the Government''s decision, the Government made appointment of respondent No. 3 on an ad hoc basis by letter dated January 30, 1970, (Annexure ''D'') for a period of six months or till a candidate was recommended by the Public Service Commission, whichever was earlier. The petitioner was naturally upset by this under-hand dealing on the part of the Government and served a legal notice dated April 8, 1970, (Annexure ''E'') on the Secretary to the Punjab Government in the Industries Department. In paragraph 12 of that notice the petitioner stated (through his counsel) that the facts disclosed in the notice showed that the Government was playing a fraud with him and also had kept him in dark white appointing respondent No. 3 on January 30, 1970, when the petitioner had been informed on January 9, 1970, that his case was under consideration. It was alleged that the impugned appointment was based on nepotism and favouritism and was, therefore, illegal, arbitrary and unconstitutional. In the notice, he claimed for being promoted and also desired that respondent No. 3, who was described as an illegal occupant of the post, should be removed from the post in question. The receipt of the notice was acknowledged in the letter of the Director of Industries dated June 11, 1970 (Annexure ''E/1'') wherein the petitioner was informed that "the matter is under consideration of the Industries Department." The petitioner has also tried to show that respondent No. 3 was not fit for the job on which he had been appointed on extraneous considerations. In support of that claim the petitioner has filed, as Annexure ''F'' to the petition, a copy of the order dated July 14, 1970, passed by Shri S.S Gill, Industrial, Adviser, Directorate of Industries, Punjab, reading as follows:

It has been observed that the progress of the Textile Finishing Plant, Ludhiana, is deteriorating day by day since Shri S.C. Chadha has taken over the control of the Centre as Senior Technnical Officer. It is, therefore, desired that Shri N.S. Sidhu, Senior Technical Officer, Quality Marking Centre (Textiles) Ludhiana should have over-all control (Technical control) of the Textile Finishing Plant, Ludhiana as done earlier. He should ensure that the monthly turn over is brought up to the same level as few months ago if not better.

According to the averments in the petition, Mr. N.S. Sidhu referred to in the above quoted order, is still having charge of the post in question though salary for the same is being paid to respondent No. 3. The stand of the State in respect of these allegations is that the Industrial Advisor had no jurisdiction to pass order Annexure ''F'' and that the Government has already directed the Industrial Advisor to withdraw the said order. The fact, however, remains that the order was passed and was actually implemented and. according to the averments in the replication filed by the petitioner, the said order has not been withdrawn by the Industrial Advisor. Be that as it may. I am not concerned with a question of the efficiency or otherwise of respondent No. 3 It is for the Government to prefer an incompetent person over an available competent candidate or not to do so.

The period of six months for which the ad hoc appointment of respondent No. 3 had been made expired on July 30, 1970 Despite the storm which had been raised by the petitioner and the admitted orders passed by the Minister In charge of the Industries Department (Annexure ''G''), which are quoted below, the Secretary to the Government issued the second impugned order (Annexure ''H''), in the name of the Governor, extending the appointment of respondent No. 3 for another period of six months:

MIH (Minister, Industries and Health) his desired that further appointments of any candidates on adhoc basis should be stopped.

Office should ensure that appointment orders are not issued on any application, on which previously orders may have secured for appointment.

The term of appointment of adhoc appointees appointed in the past should not be renewed. A list of adhoc appointees should be prepared at once for submission to MIH, showing the dates of appointment and the dates on which six months period has expired/will expire.

Immediate steps should be taken to fill such posts on regular basis through competent authority. Adhoc appointees may as well be considered for regular appointments along with other applications which may be received in this connection, provided they fulfill the qualification.

In Annexure ''H'' again, it was staled that the extension of the appointment of respondent No. 3 to the post in question was for a further period of six months with effect from July 31, 1970, "or till a candidate is recommended by the Punjab Public Service Commission whichever is earlier." In the written statement filed by the Government, it is stated that papers have been sent to the Punjab Public Service Commission for approving the ad hoc extension of the appointment of respondent No. 3. It has, however, not been disclosed as to what was the result of that reference. It was in the background detailed above that this petition was filed in the end of July, 1970. While admitting the petition on July 29, 1970, the Motion Bench directed maintenance of status quo till further orders. Orders for maintenance of status quo were passed on the prayer of the petitioner in the closing lines of the petition for stay of operation of the impugned order and for not permitting respondent No. 3''s appointment to be continued beyond July 30, 1970. In fact, Government had already passed the order dated July 21, 1970, before the interim order dated July 29, 1970, was passed by this court, petitioner, therefore, withdrew the application for stay which was accordingly dismissed on September 11, 1970, and the stay order granted on July 29 was vacated.

In the State''s return filed by the Deputy Secretary, Industries, it has been stated that after the expiry of the first term of six months the case of respondent No. 3 was considered on merits and the Government decided to extend his term of ad hoc appointment for a further period of six months beyond July 30, 1970 and that reference was also made to the Public Service Commission for their approval to the continued appointment beyond the first period of six months. It has been repeatedly emphasised in the return that the post in question is reserved for direct recruitment and that the Government is fully competent and within its right to appoint deserving candidate against any vacancy on an ad hoc basis in the interest of the Government work. respondent No. 3 has not filed any separate return though he is represented by counsel Mr. Karampal Singh Sandhu, learned counsel for respondent No. 3 submits that he adopts the return filed by the State In petitioner''s replication, he has averred that even if the petitioner''s lien on his previous post held by him since 1965 was terminated yet after his appointment to the post of Technical Manager his previous experience of that post was to be taken into account and some weight age has to be given to the service rendered by him previously considering the merits of the petitioner even though the said previous service may not be counted for seniority. In paragraph 4 of the replication, he has made it clear that the order passed by the Industrial Advisor (Annexure ''F'') had. not yet been withdrawn so far and that Shri N.S. Sidhu (named in that order) was still continuing as over-all incharge having the technical control of the Centre. Regarding the petitioner''s claim for being promoted to the higher post as he is a member of a scheduled caste, the State''s position is that the petitioner is holding an isolated post, that the post in question is not to be tilled up by promotion, that the post in question is also a Solitary post and that the question of giving representation to a member of the scheduled caste does not arise. petitioner''s reply, in this regard, in his rejoinder is that regarding his eligibility and suitability for the post as a member of a scheduled caste, it. is significant that out of line relevant posts in the department not a single one is manned by a member of a scheduled caste.

Mr. M.R. Agnihotri, learned counsel for the petitioner, has firstly submitted that the appointment of respondent No. 3 is liable to be set aside as it has been made in violation of regular on 3 (d) of the Punjab Public Service Commission (Limitation of Functions) Regulations, 1955 (hereinafter called the 1955 Regulations), it is the common case of both sides that the post in question hat. not been excluded from the jurisdiction of the Public Service Commission and cannot be filled by the Punjab Government on a regular basis except by a selection through the Public Service Commission. Regulation 3 (d) of the 1965 Regulations states that it shall not be necessary for the Government to consult the Commission on the suitability of candidates for appointment to a permanent post of a person temporarily for a period not exceeding six months, if owing to an emergency having arisen, it is necessary in the public interest to fill the vacancy immediately and there is likely to be undue dalay in making the appointment after consultation with the Commission. Mr. Agnihotri has pointed not that a similar provision is contained in clause for. of Regulations to the effect the it is not necessary for the State Government to consult the Public Service Commission for appointment to a temporary post, the necessity for which is declared at the time of its creation to be unlikely to continue for more than 6 months. It is not necessary to refer to Clause (c) of Regulation 3 as. the State has not taken up the stand about the post in question being temporary. There is no doubt that in the circumstances mentioned in Regulation 3 (d) Government has the absolute right to make an ad hoc appointment for a period not exceeding 6 months to meet an emergency of the kind referred to in the rule. The facts and circumstances of the present case do not, however, reveal the existence of any such emergency at the time when the appointment was initially made and more so at the time of extension of the appointment of respondent No. 3. Nor has the Government made out any case for any such emergency in its return. No facts have been disclosed or suggested in the State''s return from which it could be possible to infer that in fact it was necessary in the Public interest to fill the vacancy immediately and that there was likely to be undue delay in making the appointment after consultation with the Commission. In any event, no such eventualities and circumstances can be pleaded in support of the order extending the appointment of respondent No. 3. The original period of six months, for which respondent No. 3 had initially been appointed, was more than sufficient for the Government to get the selection for the post made through the Public Service Commission. Giving every possible benefit of doubt to the State, which is normally in the best position to decide its course of action in such matters, I would hold that the initial appointment of respondent No. 3 for a period not exceeding six months has not been shown to be illegal particularly when, as emphasised by the learned counsel for respondent No. 3, it is not shown that respondent No. 3 lacked any inherent qualification to man that post.

Mr. Agnihotri then contended that the order Annexure ''H'' extending the appointment of respondent No. 3, for a period of six months, with effect from July 31, 1970, was not only passed in Contravention of the abovementioned Regulation but in deliberate abuse of the power conferred by that rule. He also contended that the said order of extension was contrary to and in violation of the unequivocal decision of the Minister concerned. Counsel has further emphasised that the order of extension In the face of the decision of the Industrial Avisor (Annexure ''F'') was mala fide. I find great force in all these submissions of the learned counsel. The power conferred on the Government by Regulation 3(d) of 1955 Regulations to meet an emergency is not intended to be abused by extending such appointments beyond six months unless unexpected events create another emergency which could not possibly be envisaged initially. No such extraordinary circumstances have been made out in the present case. I am not prepared to believe the Government was not aware of the orders of the Industrial Advisor passed on July 14, 1970, at the time of passing the impugned order (Annexure ''H'') a week later. That the Government decided to extend the appointment of respondent No. 3 in a post from the charge of which he had in fact been removed earlier cannot be said to fulfil the requirements of Clause (d) of Regulation 3. The Minister in charge of Industrial Development had definitely directed on July 3, 1970, (Annexure ''G'') that the term of appointment of adhoc appointees, appointed in any post should not be renewed and a list of adhoc appointees should be submitted to him showing the dates of appointment and the dates on which six months period had expired or was to expire. He had also directed that immediate steps should be taken to fill such posts on regular basis through competent authority. The Secretary to the Government appears to have brazen-facedly violated those orders of the Minister and made the impugned appointment for a further period of six months. The State has not disclosed in its return the circumstances in which this Secretariat chose to do so. Under these circumstances, I have no hesitation in holding that order Annexure ''H'' extending the appointment of respondent No. 3 for a period of six months beyond July 30. 1970, amounted to a flagrant abuse of the powers vested in the State under Regulation 3 (d) of the 1955 Regulations. The order is also liable to be struck down on account of its being in violation of the definite decision of the Minister which was binding on the Secretary to the Government. Even otherwise in the circumstances, to which detailed reference has already been made, the order extending the appointment of respondent No. 3 obviously appears to be based on some extraneous consideration as there was no justification at all for adopting that course.

I also find force in the submission made by Mr. Agnihotri to the effect that the course adopted by the Government in the present case amounts to a fraud on Article 16 of the Constitution. It is nobody''s right to be appointed to any post. It is not the case of the respondents that the petitioner is not qualified to hold the post in question petitioner had offered his services for that post. Even if the post was not to be filled by promotion, the petitioner had a right to be considered for the same if he wanted to be so considered. The straight course to be adopted by the Government was to ask the Public Service Commission to advertise the post so as to enable the petitioner, and every other person who might have liked to apply for the same, to submit their respective applications and to permit the Public Service Commission to select the best candidate and to recommend him to the Government, after taking into consideration all the relevant facts including the fact that the petitioner was a member of a scheduled caste. If such. a course had been adopted, it would have been in consonance with the requirements of Article 16 of the Constitution and the petitioner could have no grievance if the Public Service Commission would not have selected him Instead of adopting that straight-forward course, the Punjab Government has, for the reasons best known to itself, adapted a devious method of abusing the power conferral on it under Regulation 3(d) of the 1955 Regulations. The appointment of respondent No. 3 is liable to be struck down for this additional reason.

What is still more significant is that the last extended period of ad hoc appointment of respondent No. 3 expired on January 31, 1971. It was on that account that I adjourned this case yesterday to enable the Deputy Advocate-General for the State of Panjab to get instructions from the Government and to inform me whether any order further extending the appointment of respondent No. 3 had since been passed or not. The learned counsel has informed me today that Government, is unable to state whether any such order has been passed or not From this, I am asked by Mr. Agnihotri to presume that no further order extending the appointment of respondent No. 3 has been passed by the Government. If the Government had taken a straight-forward attitude and told the Court that appointment has not been extended any further, this petition would have been dismissed as in fructuous. Since the Government has not adopted that attitude and is not able to say whether further extension has or has not been granted and it is admitted that respondent No. 8 is still working against the post in, dispute, I must allow this petition, set aside the order Annexure ''H'' and any other or subsequent order that might have been passed further extending the ad hoc appointment of respondent No. 3 and restrain respondents Nos. 1 and 2 from giving any such further extension to the appointment of respondent No. 3. I further direct respondents 1 and 2 to ask the Punjab Public Service Commission, if this has not already been dose, to advertise the post in question and to consider the applications of all these persons who mignt apply for the same and to recommend one man who is considered to be the best by the Public Service Commission for appointment to the post. If the petitioner submits his application for the post in question after such advertisement is issued, the Government shall forward his application to the Punjab Public Service Commission immediately and will not withhold it. The costs of the petitioner shall be paid by the State.