Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (civil) 6046-58 of 2003
PETITIONER:
State of Punjab & Ors.
RESPONDENT:
Satnam Kaur & Ors.
DATE OF JUDGMENT: 16/12/2005
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
The State of Punjab is in appeal before us being aggrieved by and
dissatisfied with a judgment and order dated 10.01.2002 passed by a
Division Bench of the Punjab & Haryana High Court allowing the writ
petitions filed by the Respondents herein.
On or about 07.05.1997, the Civil Surgeon, Nawanshahr issued an
advertisement in ’New Zamana’, Jalandhar, inviting applications for the
following 31 posts :
(1) Ward Servant 15
(2) Sweeper 08
(3) Mali 02
(4) Cook 04
(5) Aaya 01
(6) Dental Attendant 01
A large number of candidates being more than 9000 applied for
appointments in the said posts pursuant to or in furtherance of the said
advertisement. Interviews of about 1000 persons were conducted on
12/13.05.1997. Appointment letters to the so-called candidates were
despatched on 05.06.1997 and they were allowed to join on 06.06.1997.
A writ petition was filed by some unsuccessful candidates, which was
marked as Civil Writ Petition No.11116 of 1997, wherein 18 of the selected
candidates were made parties. The entire selection process as well as the
selection of the said respondents were questioned, inter alia, on the ground
that their names were recommended by one or the other influential persons
or they had otherwise access to the Civil Surgeon concerned. In the said
writ petition, it was, inter alia, prayed :
"i) to issue a writ in the nature of certiorari for
quashing the selection of Class IV employee in the civil
hospital Nawanshahr vide selection list Annexure P/3 and
further to order quashing the appointment of respondent
No.4 to 21 against the post (in class IV) and to issue writ
of mandamus directing the respondents No. 1 to 3 to
appoint the petitioner as Class IV employees in the civil
hospital, Nawanshahr."
A Division Bench of the High Court by a judgment and order dated
10.11.2000 perused the records pertaining to the process of selection and the
results thereof and was of the opinion that although no criteria whatsoever
was fixed for evaluating the marks which were to be given to each individual
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
candidate but despite the same 5 marks had been awarded for the purported
qualification and experience to each candidate while 20 marks had been
fixed for interview. It was noticed :
"\005It may also be mentioned here that according to the
notification which was issued on 7th May, 1997, it was
indicated that (i) the candidate should be able to read
write, Punjabi and (ii) the experience shall be given
preference. In view of this it is apparent that the
committee which was conducting the interview was
given no guidelines which were to be followed by them
by evaluating the worth of any candidate it had an
absolute and arbitrary discretion regarding how they were
to access and award marks during the time of interview
Further more it is also evident that out of a total of 30
marks that were to be awarded, 20 marks have been
earmarked for the interview which shows that more than
66% marks were to be given by the member of the board
without any parameter having been fixed awarding
thereof. No material has been placed before us to show
that how 20 marks were to be awarded by the five
members of the Board nor it is clear that how the marks
have actually been awarded\005"
The High Court further noticed the manner in which discriminatory
treatment had been made in awarding the marks to the persons similarly
situated. It was also not clear to the High Court as to how the merit list was
prepared. It was observed :
"\005One fails to see how a person been the basic
qualifications, above to read and write Punjabi could
have been awarded 1 marks not here is anything to
indicate that on what basis various candidates have been
awarded more marks once the advertisement did not
provide for preference being given to candidates having
higher qualifications."
It was noticed that even while awarding marks for experience
candidates were awarded marks from 0 to 15. It was further held :
"\005It is also not clear from the lists, as already indicated
above by us, as to how the member of the Board had
awarded marks and the participations made by each of
those members during the interview as would have been
the case if each of them had been required to give their
assessment out of 4 marks or each of them had been
required to evaluate each candidate after giving him
marks of 20 and then an average had been drawn up\005"
The High Court wondered that even if one minute was spent on one
candidate and if one more minute was required for another candidate to
come in and go out, at least 2000 minutes would be required for
interviewing 1000 candidates and, thus, there was no reason as to why only
2 dates had been fixed for interview; and even if the members of the
Selection Board sat for 5 to 6 hours a day, they would not have been able to
finish the interview of so many candidates, observing :
"\005.This would bring the projected time which the Board
wanted to spend on interview of one candidate to less
than 30 seconds, which would include the time for
calling in of a candidate, making him sit down, ask him
questions and then requesting him to leave."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
The High Court, therefore, set aside the selection made by the Board.
The State did not prefer any appeal thereagainst. One Jaswinder Lal
preferred a special leave petition thereagainst and this Court by an order
dated 12.02.2001 passed in Special Leave Petition (Civil) No. 2115 of 2001,
dismissed the said petition, opining :
"We have not got the slightest doubt in the greatest
abuse of power by the officer concerned. The High
Court is entirely correct in taking the decision which it
did. The Special Leave Petition dismissed."
The State of Punjab thereafter by an order dated 23.04.2001 cancelled
the appointments of all the 31 candidates.
The respondents herein questioned the said order by filing writ
petitions before the Punjab & Haryana High Court, inter alia, contending
that as they had been appointed on an ad hoc basis long back, they were
asked to appear before the Interview Board only for the purpose of
regularization of their services. It was further contended that as they were
not parties in the earlier writ petition, they were not bound by the said
decision and in that view of the matter the State could not have cancelled
their appointments.
A Division Bench of the High Court allowed the said writ petitions
holding that the services of the respondents herein should have been
regularized purported to be under the Government instructions dated
18.01.1995, whereby and whereunder the services of ad hoc Class IV
employees were to be regularized if they had completed the period of 240
days on 31.12.1994.
Mr. Sarup Singh, the learned Senior Additional Advocate General,
appearing for the State of Punjab, in assailing the judgment, would contend
that the High Court committed a serious error in passing the impugned
judgment relying on or on the basis of a judgment of this Court in T.
Devadasan v. Union of India and Anr. [AIR 1964 SC 179], which has no
application in the instant case.
It was furthermore submitted that in view of the fact that High Court
in the writ petition quashed the entire selection process, the State had no
other option but to terminate the services of all the selected candidates,
although the respondents herein were not parties thereto.
Mr. Gurnam Singh, the learned counsel appearing on behalf of the
respondents herein, on the other hand, would support the judgment of the
High Court, contending that the respondents herein had continued in service
for a number of years after their appointment. It was urged that the
respondents herein were appointed long back and, thus, in terms of the
policy decision of the State their services were to be regularized. It was
further submitted that as the respondents herein were not parties in the
earlier writ petition, the said judgment was not binding on them. Reliance in
this behalf, has been placed on Prabodh Verma & Ors. v. State of Uttar
Pradesh & Ors. [(1985) 2 SLR 714 : AIR 1985 SC 167].
The learned counsel relying on or on the basis of a judgment of this
Court in Arun Tewari and Others v. Zila Mansavi Shikshak Sangh and
Others [(1998) 2 SCC 332] would contend that in all cases, it is not
necessary to follow all the procedures laid down in the rules.
It was not a case where the High Court, in our opinion, could have
interfered with the order dated 23.04.2001 passed by the appellant herein.
We have noticed hereinbefore the findings of the High Court arrived in Writ
Petition No.11116 of 1997 for the purpose of setting aside the entire
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
selection process. It is true that in the said writ petition only 18 out of 31
selected candidates were made parties, but they were made parties because
an additional ground was taken by the writ petitioners therein that their cases
were recommended by some influential persons or they were otherwise
known to the Civil Surgeon, Nawanshahr. The main prayer in the said writ
petition, however, was that the entire selection process was bad in law.
Once the High Court was of the opinion that the entire selection process was
bad in law and the said order having been upheld by this Court, in our
opinion, it was impermissible to bye-pass the same. The contention of the
respondents herein that they were entitled to be regularized in services was
not a matter which had a direct nexus with the order of termination of their
services passed by the State. Indisputably, they took part in the selection
process. Indisputably again such selection process was initiated pursuant to
the advertisement issued by the Civil Surgeon, Nawanshahr. Once the
respondents herein had participated in the selection process and became
selected, they could not have filed a writ petition on a different premise,
namely, they having been appointed on ad hoc basis long time back, their
services should have been regularized pursuant to or in furtherance of a
purported policy decision dated 18.01.1995.
The High Court in its judgment and order dated 10.11.2000 clearly
noted that an advertisement was issued in a local newspaper and pursuant
thereto about 9000 candidates filed their applications. Out of the said 9000
candidates, 1000 candidates were interviewed. The respondents herein do
not say that they were not amongst the said 1000 candidates. It is not their
contentions that they were not interviewed on 12/13.05. 1997. It was further
not disputed that appointment letters in their favour were issued on
05.06.1997 and they joined their respective posts on 06.06.1997. In the
aforementioned premise, it was impermissible for the respondents herein to
file the writ petition contending that they appeared before the Selection
Board in connection with regularization of their services.
The High Court for all intent and purport, thus, sought to bye-pass its
own binding judgment as also the order of this Court. Moreover, the effect
of such judgments did not fall for discussion by the High Court. The effect
of non-joinder of the respondents would not be such which would confer a
legal right upon them to file another writ petition whereby and whereunder
the effect of the earlier judgment would be completely wiped out.
In Prabodh Verma (supra),this Court in the factual matrix obtaining
therein was of the view that the High Court ought not to have heard or
disposed of the writ petition under Article 226 of the Constitution of India.
In the instant case, 18 persons were impleaded as respondents in their
individual as also representative capacity. Even if the respondents were
aggrieved, they could have come before this Court under Article 136 of the
Constitution of India. Even a review petition at their instance was
maintainable. Prior to issuance of letter of termination dated 23.04.2001,
they questioned the order of termination only. Such order of termination
cannot be said to be in any manner vitiated in law as the same had been
issued pursuant to or in furtherance of a lawful judgment passed by the High
Court and affirmed by this Court. It was a duty of the High Court to follow
the decision of this Court.
In Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering
Works (P) Ltd. And Another [(1997) 6 SCC 450], it was held :
"When a position, in law, is well settled as a result of
judicial pronouncement of this Court, it would amount to
judicial impropriety to say the least, for the subordinate
courts including the High Courts to ignore the settled
decisions and then to pass a judicial order which is
clearly contrary to the settled legal position. Such judicial
adventurism cannot be permitted and we strongly
deprecate the tendency of the subordinate courts in not
applying the settled principles and in passing whimsical
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
orders which necessarily has the effect of granting
wrongful and unwarranted relief to one of the parties. It
is time that this tendency stops."
[See also Ajay Kumar Bhuyan and Ors. etc. v. State of Orissa and Ors. etc.
(2003) 1 SCC 707].
Yet again in M/s D. Navinchandra and Co., Bombay v. Union of
India and Ors. [(1987) 3 SCC 66], Mukharji, J (as His Lordship then was)
speaking for a three-Judge Bench of this Court stated the law in the
following terms :
"\005Generally legal positions laid down by the court
would be binding on all concerned even though some of
them have not been made parties nor were served nor any
notice of such proceedings given."
The decision of this Court in Arun Tewari (supra) relied upon by the
learned counsel appearing on behalf of the respondents herein, has no
application in the instant case. The question which was raised therein was
absolutely different and distinct. Therein the selection process was held to
be valid having regard to the fact that 7000 posts of Assistant Teachers
under a time-bound scheme were to be filled up wherein the rules were
amended. This Court in that situation observed :
"There are different methods of inviting applications.
The method adopted in the exigencies of the situation in
the present case cannot be labelled as unfair, particularly
when, at the relevant time, the two earlier decisions of
this Court were in vogue."
In the instant case, what was commended by the High Court and this
Court was not the validity or otherwise of the advertisement issued in the
press but the mode and manner in which the selection of the candidates was
held.
For the aforementioned reasons, we are of the opinion that the
impugned judgment is unsustainable in law, which is set aside accordingly.
The appeal is allowed. No costs.