Jasvir Kaur vs State of Punjab and Others

Rajiv Narain Raina, J.—Public Advertisement No. 1 of October, 2006 was issued in the Press calling applications eligible candidates to fill 431 posts of Headmasters in the Education Department, Government of Punjab. Of that number 21 posts were reserved for the Backward Class (Female) reserved category against which the petitioner applied within time frame and in due course of the selection process she secured to her credit 61.715 marks on the basis of credit marks assigned for academic and professional qualifications calculated as per the criteria laid down. The first round of counselling was conducted on 3rd November 2006 followed by a second one in the same month. She participated in the counseling process. Later, she was informed that she had failed to make the grade while the 4 posts remaining in her reserved category had been filled up by the successful candidates. It is the say of the petitioner that the appointments were offered to the successful candidates in the year 2008 and they joined service which was offered. It is stated that the selection was challenged by unsuccessful candidates as had competed for the posts advertised in the Physical Training Instructor category in 2008 and then again by a fresh wave of unsuccessful candidates approaching this Court in writ petitions filed in 2012. Apart from those, in 2013 some persons/other candidates filed CWP No. 18679 of 2013 before this court in which serious allegations are levelled against the Chairman of the Selection Committee for using unfair and corrupt means in making appointments of ineligible and undeserving candidates. An FIR has also been registered by the police in this regard and this Court is presently seized of those proceedings which are pending adjudication.

The story built by the petitioner to cover the delay in approaching court is that in March, 2014, the petitioner all of a sudden had received a telephone call from the office of the first respondent enquiring from the petitioner why she had not joined duty despite selection in the second counselling process and consequential appointments offered in 2007-08 to others. On this premise her hope was rekindled. She probed further in the matter with the official respondents to elicit information from them as to the status of her case but was not provided any information.

Admittedly, the petitioner made no grouse of her non-selection for all these years nor did she express any grievance in writing to the respondents demanding justice after the appointments were offered to the selected candidates during 2007-2008. She was not also a party to any of the earlier court proceedings and today depends on the litigation filed by Physical Training Instructors and in another petition bearing CWP No. 18679 of 2013 (supra) where as noticed above allegations of corruption have been levelled against the Chairman of the Selection Committee in making the selection in which the petitioner participated.

Assuming argued, if the pending petition is allowed and the entire selection is set aside as vitiated by corruption, taint and nepotism even then the petitioner can get no relief by way of appointment since the advertised posts on nullification of the selection process would normally have to be re-advertised where she would only have a right to compete again on merit either from the stock that applied or in the expanded recruitment process where persons who have become in the meanwhile eligible are called upon to compete against the old vacancies. In case the Court holds to the contrary and saves the selection and appointments, even then the petitioner would can have no relief when hit by the bar of limitation, or principles of delay and laches since she did not agitate her rights, if any, within time and at least within the period of limitation prescribed for filing a suit. Her cause of action, if any, arose in 2008 and after the expiry of six years of slumber no life can be breathed into this petition when a suit would be barred by limitation when not instituted till 2011 or thereabout. Where the suit is barred, the writ court would normally as a rule of prudence refuse to interfere. See the Constitution Bench ruling of the Supreme Court in State of Madhya Pradesh Vs. Bhailal Bhai and Others, , where it was observed:-

".the special remedy provided in Art. 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Art. 226 is a discretionary power. "It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy. But where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable."

Therefore, I do not find any reason to interfere in such a stale claim or to accept the request of the petitioner that her pending representation filed too late in the day should be directed to be decided by the Administrator within a time bound period as any such direction may indicate or be misconstrued that the Court order itself is an acknowledgment of a subsisting right to appointment or has postponed the cause of action which has expired and is not possible to revitalize in extra ordinary writ jurisdiction to make declaratory decrees.

Besides, CWP No. 18679 of 2013 is restricted in its prayers made by agitating Physical Training Instructor category candidates and has nothing to do with the selection of Headmasters which aspirants are not before the Court complaining of a selection process corroded by vice of corruption or vitiated by fraud practiced on public appointments.

The story concocted to cover culpable delay in approaching Court is sought to be sanctified on solemn affirmation in paragraph 15 of the petition which reads as follows:-

"15. In this process of reinvestigation or re-inquiry into the entire selection in fact the petitioner in the month of March 2014 received a telephonic call from the office of respondent No. 1 that why she did not join her duty when her selection was made way back in the year 2007 after participating in the second round of counseling. The petitioner was surprised with the said telephonic call or message received from the office of respondent No. 1 that she never received any message of her appointment from the office of the respondent No. 1 to join the posting in 2007 and 2008."

(underlined for emphasis)

Material facts and essential particulars of the conversation are not pleaded in the petition nor the exact or approximate date, time and place of the call and whether the caller identity/number or message was stored for cross-checking and capable of being traced. Nor was a complaint made in writing to any superior authority showing reasonable alacrity in follow-up action in prosecuting her existing rights. None of these is pleaded in the above paragraph to spur this Court to believe in them to ignite its jurisdiction. Even after the alleged conversation it has still taken the petitioner nine months to approach Court without any reasonable explanation of delay, not to speak of absence of sufficient cause shown in not agitating an infraction of rights, if any, in the meanwhile and letting time slip from 2008 till March this year. It is now too late for speculation or to allow new hands to dip in the jackpot of a lucky draw. Grant of relief in writ jurisdiction is not based on the lottery system or on the much hackneyed idiom, to wit, on the luck of the draw.

In any case or in any cause, nothing much can depend on a stray call made by an unknown person to a person unknown to the caller even if it were wired and the story believed for a single moment with a pinch of salt even then the call has to go to record for certiorari to be issued. Governments speak formally in writing and in express words which bind, deprive or create rights. Its orders and decisions have to be duly communicated in writing and upon due service of them through the prescribed mode upon those whose rights are involved or likely to be affected before they take effect and be binding. Telephone calls from functionaries of the State to members of the public which are not authorized by a chain of command from superiors or part of duty are forms of misconduct on which calls no credence can be placed more so in the absence of evidence and proof of fact.

If the conduct of the Chairman of the Selection Committee is under investigation and put to doubt then the law will take its course. But the petitioner cannot draw mileage from it unless she had unimpeachable evidential data supporting her case on the strength of a random call from person who is capable of being identified and the official record supports the conversation for whatever it is worth. Even if a call was made as claimed the chances are extremely remote if it can ever be supported or traced to the noting file or PUC on government papers to make it base for an actionable claim. This Court is not expected to make a fishing inquiry on such statements as are made in paragraph 15 of the petition and to issue notice to the State for the heck of it calling upon it to justify the authenticity of wildcat call and to what end. These can best be described as extremely disputable facts which can alone be resolved on evidence and proof in a civil trial and not the writ court for which end the petitioner was always free to make an approach to the civil court but failed to adopt the remedy. This Court is by and large convinced that the story of the telephone call has been introduced cleverly to lend colour of an acknowledgment of liability to create a fresh cause of action in trying clumsily to tide over the bar of limitation, laches and delay. But the petitioner was not apparently advised that the ingredients of section 18 of the Limitation Act, 1963 require an acknowledgment in writing and not an oral one for a fresh lease of limitation to run all over again. I would without any hesitation put paid to the yarn spun so craftily but inarticulately in paragraph 15 which appears evidently only aimed at securing relief one way or the other.

Lastly, learned counsel relies on State of Jammu & Kashmir and others v. Vijay Sharma and others; (2005) 13 SCC 403 to contend that the petitioner''s name was on the waiting list at position No. 1 and her name can still be sponsored after 6 years from the waiting list to compel the State to offer her an appointment despite inordinate and unexplained delay. Even if it is true that some vacancies remain unfilled even then the life of the waiting list must long be over with the recruitment process-2006 turning into Law 23 of the Rules of Cricket except in so far as the pending challenge remains at the hands of PTIs in the pending writ petitions. The petitioner can haul no advantage from those proceedings over the body of this petition and carry it to the relief clause with any success when the game is all but over. I am reminded I had occasion while sitting in Division Bench in Rakesh Kumar and Another v. State of Punjab and Another, LPA 1175 of 2012 decided 21st August 2012 to say on the life of waiting lists that:-

"The true purpose and scope of the waiting list is to consider, within its statutory life span or period fixed by way of executive instructions; appointment against a post which is offered to a selected candidate but not accepted and therefore, not consumed. A waiting list is not an endless rope to lasso a job whenever the urge arises or to display horsemanship. It has a life span curtailed by statutory rule or instruction or practice equivalent to rule."

The petitioner has not pleaded any such thing in the petition to indicate what the life of a waiting list would be in this case for it to be legally activated on judicial review of administrative inaction even if a post was lying vacant from the past which is highly unlikely.

For these reasons, I find no reasonable or plausible ground to interfere in the matter and would thus order the writ petition to stand declined.