Miss Rekha Rani vs The State of Punjab and Others

G.S. Singhvi, J.—The petitioner, who was appointed as Clerk on purely ad hoc basis in District Consumer Disputes Redressal Forum, Mansa (hereinafter referred to as the District Forum) for a period of 89 days by an order dated 9.6.1995. issued by the Food and Supplies Department, Government of Punjab and who was given re-employment with similar status vide orders dated 20.10.1995 and 12.1.1996, has instituted this petition for issuance of a writ to declare that the termination of her service is illegal and she is entitled to be reinstated as Clerk. She has also prayed for issuance of a writ to quash the appointment of the respondent No. 4.

A perusal of the record shows that the petitioner was given appointment as ad hoc Clerk keeping in view the order passed by the High Court on 20.3.1995 while disposing of Civil Writ Petition No. 5477 of 1994 which was instituted for issuance of a direction to the State Government to appoint staff in all the District Forums to make them functional. It is also clearly borne out from the record that before appointing her in the service, the official respondents did not make selection by advertising the post or by sending requisition to the employment exchange, so as to enable other eligible persons to compete for appointment. Therefore, the only possible view which can be taken regarding the petitioner''s appointment is that it was purely fortuitous in nature and no right, much less a vested legal right, accrued in her favour on the basis of ad hoc and fortuitous appointment as Clerk.

The petitioner has challenged the non-extension of the tenure of her service on the ground of arbitrariness and violation of her fundamental right to equality by contending that the official respondents have done so with an oblique motive to accommodate the person of their choice. She has also assailed the appointment of the respondent No. 4 on the ground that in view of the provisions of the Consumer Protection (Punjab) Rules, 1987, the State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) does not have the jurisdiction to appoint staff in the District Forums.

The respondent have opposed the prayer of the petitioner for issuance of a direction that she be allowed to continue in service. In the detailed written statement filed on behalf of respondents No. 2 and 3, it has been averred that u/s 24B(1)(iii) read with Section 24B(2) of the Consumer Protection Act, 1986, (hereinafter referred to as the 1986 Act), the administrative control over the functioning of the District Forums vests in the State Commissioner and in view of the directions given by the State Government vide letters Annexures R.1 and R.2, the District Forum has appointed the respondent No. 4 after advertising the post and after considering comparative merit of the eligible candidates. They have also averred that the petitioner had also appeared in the selection but she failed to clear the typing test. The photo copy of sheet of the typing test of the petitioner has been placed on record as Annexure R.3.

After hearing learned counsel for the parties, the Court had dismissed the writ petition on 20.11.996 on the basis of the statement made by the counsel appearing for the respondents regarding the selection and status of respondent No. 4. However, while dictating the reasons, we felt that the matter requires reconsideration. Therefore, the order dismissing the writ petition was recalled on 19.12.1996 and the case was listed for re-hearing.

Further arguments have been heard and the record perused. Learned counsel for the petitioner strongly relied on Rule 4(6) of the Consumer Protection (Punjab) Rules, 1987 and submitted that the power to make appointment of staff in the District Forum vests in the State Government and not the State Com- mission or the District Forum and, therefore, the selection and appointment of respondent No. 4 and the consequential termination of petitioner''s service should be declared as without jurisdiction. He argued that the amended Section 24, which empowers the State Commission to exercise administrative control over the District Forums does not entitle it to issue directions for making appointment of the staff in the District Forums. The learned Deputy Advocate General argued that the petitioner is estopped from challenging the appointment of respondent No. 4 and the termination of her service because she had taken part in the process of selection initiated by the District Forum with full knowledge that her failure to pass the test will result in her non-selection and consequential termination of her service.

We have given serious thought to the respective submissions and are in-| dined to agree with Shri Khosla that after having taken a chance to be selected for appointment in pursuance of the advertisement issued by the District Forum, the petitioner cannot turn around and challenge the jurisdiction of the State Commission and the District Forum to make recruitment of the staff in the District Forums. In our opinion, by her conduct the petitioner will be deemed to have waived her objection to the jurisdiction of the District Forum to make selection. In G. Sarna v. University of Lucknow AIR 1976 S.C. 2728 and Madan Lal and Others Vs. State of Jammu and Kashmir and Others, , the Apex Court held that a person who competes for selection cannot later on challenge the jurisdiction of the selection authority and seek invalidation of the recommendations made by it.

Applying the ratio of the decisions mentioned herein above, to the facts of this case, we hold that after having appeared in the test held by the District Forum and having taken a chance to be selected for regular appointment, the petitioner cannot question the authority of the State Commissioner and the District Forum to make selection for appointment on the post of Clerk.

he documents placed on record depict dismal performance of the petitioner''s type test. In our view, it will be wholly unreasonable and unwarranted to direct the respondents to reinstate the petitioner in service despite her extremely poor result.

The petitioner''s prayer for being allowed to continue in service also merits rejection because her initial appointment was made without any selection. In fact, the orders issued by the department were per se contrary to the doctrine of equality embodied in Article 14 and 16 of the Constitution because no opportunity of competition was given to other eligible persons by issuing advertisement or sending requisition to the employment exchange. Issuance of a writ in a case like this will tantamount to direct the public authorities to perpetuate the illegality committed at the time of petitioner''s initial appointment and, in our opinion, there is no reason why we should exercise writ jurisdiction of this Court for directing the respondents to act in violation of the provisions of the Constitution.

For the reasons mentioned above, the writ petition is dismissed. However, the petitioner shall be entitled to be considered in the future recruitment to be made by the State Commission and the District Forums. We also hope that the State Government will take notice of the anomaly between Section 24-B of the 1986 Act and the Consumer Protection (Punjab) Rules, 1987 and make suitable amendment in the Rules to remove the doubts regarding the power of the State Commission and the District Forums to recruit their staff.