Sunita vs State of Punjab and Others

Augustine George Masih, J.—Petitioner, in response to Advertisement No. 6 dated 11.08.2001 issued by respondent No. 3-Punjab Public Service Commission, Patiala (hereinafter referred to as ''the Commission'') inviting applications for 274 posts of Lecturer (College Cadre) which included two posts for Lecturer in Music (Instrumental), out of which one post was reserved for the scheduled caste category, applied for the same belonging to the Balmiki Community, which is recognized as a scheduled caste and she being eligible for the post. She was called to appear for interview vide letter dated 22.02.2002 to be held on 06.03.2002 in the office of the Commission. Result of the selection was published on 12.03.2002 and the petitioner was shown to be selected in the scheduled caste category in the subject of Music (Instrumental). She was asked to attend office of the Commission on 20.03.2002 along with the scheduled caste certificate issued under her father''s name. She appeared and submitted the requisite certificate. In the meanwhile, the then Chairman of the Punjab Public Service Commission, Mr. Ravi Sidhu was arrested by the Vigilance Bureau, Punjab for taking bribe and committing illegalities and irregularities in making the various selections. All appointments made under his chairmanship since 1996 came under cloud. A press note was published on 25.07.2002 by the Government of Punjab, according to which, it was decided to cancel 600 tainted recruitments made on the basis of selection conducted by the Commission identifying 41 categories of posts which, in the opinion of the Government, was made not on the basis of merit and money had presumably changed hands. The category, in which the petitioner had applied for in pursuance to the advertisement dated 11.08.2001, did not find mention therein but appointment letters were not issued. While hearing CWP No. 7584 of 2003 titled as Dr. Mohinder Kaur v. State of Punjab and others and other connected matters, wherein challenge was to the decision of the Government cancelling all selections made by the Commission in the year 2002, an observation was made that the Government may consider if selection of the posts of 2002, which were annulled, could be scrutinized by a Select Committee. On the basis of these observations of this Court, the Government constituted a committee and after consideration, accepted the report of the Select Committee in principle. The report dated 07.06.2005 concluded that the selection of candidates of 35 posts including 16 categories was non-tainted and accordingly, vide notification dated 06.02.2006, the Government decided to amend the earlier notification dated 16.05.2003 to the extent of omitting these categories from the earlier notification having found them to be non-tainted. The Government thereafter re-conducted the interview of the candidates of these omitted categories who had applied in response to the advertisement issued in the year 2001. After re-conducting of the interview, the 88 candidates, who were found suitable, were issued appointment letters but kept the file of 265 candidates with it. A common appointment order dated 11.09.2007 issued to 52 Lecturers in English has been appended as Annexure P-11. Petitioner and some other candidates, who had been duly selected in the year 2002 but were not issued appointment orders on account of Sidhu Scam, approached the respondents for issuance of appointment orders to them as in the case of 88 Lecturers and were assured that they would take necessary steps in this regard. However, to the utter surprise and shock of the petitioner, Advertisement No. 1 was published in the press by the Commission on 04.04.2008 inviting fresh applications for recruitment to 265 posts of Lecturer in the Higher Education Department, which included one post of Music (Instrumental) in the category of scheduled caste, for which the petitioner stood selected earlier in the year 2002. This action of the respondents stands challenged by the petitioner through the present writ petition assailing the advertisement issued by the respondents inviting applications to the post, on which the petitioner stands already selected.

Counsel for the petitioner submits that initially two posts of Lecturer in Music (Instrumental) were advertised, out of which, one was reserved for the scheduled caste category. There is no competition or comparison between the general category and scheduled caste category candidates so far as the reserved post for the scheduled caste is concerned.

In the reply, which has been filed by the respondents, it has been asserted that as per the report of the Screening Committee constituted vide Punjab Government Order dated 23.12.2004, the selection of Lecturer in Music (Instrumental) was not found fair as application of one candidate, namely, Neerja Sharma had been wrongly rejected on the ground that she was ineligible whereas she was eligible and possessed the requisite qualification prior to the cut off date. An eligible candidate was deprived of the chance to participate in the process of selection by wrong rejection of her candidature and thus, the selection was unfair. Counsel for the petitioner contends that this pertains to the general category candidates alone and there is nothing against the selection of the petitioner as Lecturer in Music (Instrumental) under the scheduled caste category. The selection thus of the petitioner cannot be said to be tainted or unfair and, therefore, the decision of the respondents in declaring the whole selection in the subject of Music (Instrumental) to the two advertised posts is unsustainable and deserves to be set aside.

It has been contended further by the counsel that despite specific directions issued by this Court with regard to appraising the Court whether the selection to the category, to which the petitioner had applied for, has been found to be not fair, there is no specific response denying the fact that the selection of the petitioner under the category of Lecturer in Music (Instrumental) scheduled case was tainted. What has been stated by the respondents in their reply is that no candidate in the subject of Music (Instrumental) has been given appointment as a regular Lecturer after the selection made by the Punjab Public Service Commission in the year 2002. Respondents are avoiding straight answers to the questions posed by this Court with regard to the selection to the post of Lecturer in Music (Instrumental) under the scheduled caste category. He, accordingly, contends that the writ petition deserves to be allowed.

On the other hand, counsel for the respondents has submitted that the appointment letter cannot be issued to the petitioner as the notification dated 16.05.2003 had rejected the selection of two appointments in the subject of Music (Instrumental), copy of this notification has been appended as Annexure R-1. Thereafter, a Screening Committee was constituted vide order dated 23.12.2004 of the Punjab Government, which, on perusal of the records, came to the conclusion that the selection of the Lecturer in Music (Instrumental) was not fair because of rejection of the candidature of one candidate, namely, Neerja Sharma. Since an eligible candidate was deprived of her chance to participate in the selection by wrong rejection of her candidature, the selection of this category was found to be not fair. This report of the Screening Committee has been accepted by the Government and, therefore, appointment letter cannot be issued to the petitioner as the selection held for the post of Lecturer in Music (Instrumental) has not been found to be non-tainted/fair. Accordingly, the prayer has been made for dismissal of the writ petition.

I have considered the submissions made by the counsel for the parties and have gone through the records of the case.

The position, which emerges from the pleadings of the parties, is that Advertisement No. 6 was published in the press on 11.08.2001 inviting applications for 274 posts of Lecturer (College Cadre) which included two posts of Lecturer in Music (Instrumental), out of which one post was reserved for the scheduled caste category. Petitioner being eligible had applied for the same and was interviewed on 06.03.2002 by the Commission. In the result published on 12.03.2002, she was shown to have been selected against the scheduled caste category seat for Lecturer in Music (Instrumental). Documents were checked on 23.03.2002 by the Commission but thereafter, the then Chairman of the Punjab Public Service Commission was arrested on 26.03.2002 by the Vigilance Bureau, Punjab and on further consideration of the facts that there were large scale irregularities and illegalities committed by the Commission under the then Chairman of the Punjab Public Service Commission, a decision was taken by the Government of Punjab vide which selections to various categories were annulled and the tainted candidates so appointed in pursuance to these selections were cancelled. A notification dated 16.05.2003 (Annexure R-1) was issued by the State of Punjab whereby a decision was taken to declare the entire selections/recommendations made by the Punjab Public Service Commission in the 67 categories mentioned therein on the basis of interviews conducted during the year 2002 as null and void. Category of Lecturer in Music (Instrumental) also found mentioned at Sr. No. 54 of the list of categories, selection of which was annulled.

Thereafter, a Division Bench of the High Court in CWP No. 7854 of 2003 titled as Dr. Mohinder Kaur v. State of Punjab and others observed that the Government may consider if selections of the posts of 2002, which were annulled, could be referred to a Screening Committee which would go into the aspect of the taint involved, if any, in the selection process. These observations of the Court were considered by the Government and accepted. A Screening Committee was constituted vide order dated 23.12.2004 who went into this aspect and submitted its report dated 07.06.2005, wherein it was opined that the selection to the post of Lecturer in Music (Instrumental) was not a fair one as candidature of one Ms. Neerja Sharma was rejected by the Commission on the plea that she has passed M. Phil Degree after the year 1993 whereas certificate of the University of Delhi, Master of Philosophy 1993, was appended with the application, according to which, the candidate was eligible and was deprived of her chance to participate in the process of selection by wrong rejection of her candidature. This report of the Screening Committee was accepted by the Government, because of which, petitioner could not be issued the appointment letter.

The plea of the petitioner that she belongs to the scheduled caste category and a taint, if any, has been found in the selection and appointment to the post of Lecturer in Music (Instrumental) general category cannot be a basis for annulling the whole selection of this category, carries weight. There is no doubt that there is no conflict and claim of the general category candidate against the post, which is reserved for the scheduled caste.

Reserved category is a class apart and, therefore, should have been separately treated as a distinct category although relating to the same subject. General category candidates cannot compete for the posts reserved for the reserved category and, therefore, both these categories have no comparison with each other as the selection operates in their individual fields. Overlapping, if any, comes into effect only in a case where a scheduled case category candidate obtains higher marks than the general category candidate and, therefore, stands appointed against the general category seats but this is not the position in this case. Here a scheduled caste candidate, who has been selected under the scheduled caste category scat, is claiming appointment on the basis of her selection against the said category and, therefore, in the absence of any material or pleadings on the record which would suggest that the selection of the scheduled caste category for the post of Lecturer in Music (Instrumental) was not fair or was tainted, cannot be made the basis for annulling the selection as such. It is admitted by the respondents that they have proceeded to re-conduct the interview of those candidates who had applied in response to the advertisement issued on 11.08.2001 and belonged to those categories in which the Screening Committee did not find any taint. Thereafter, if found suitable, they were selected and issued appointment letters to such candidates as has been done in the case of 52 Lecturers in English where the candidates were found eligible in the test re-conducted by the Commission in the year 2004, which fact has been admitted by respondents No. 1 and 2 in para No. 11 of the reply. As observed above in the category of Lecturer in Music (Instrumental) scheduled caste category, no taint has been found by the respondents. Taint, if any, was in the general category which cannot be made the basis to declare the selection of the scheduled caste category also as tainted.

In view of the above, the present writ petition is allowed. Direction is issued to the Punjab Public Service Commission to reconduct the interview of those candidates who had applied in response to the advertisement dated 11.08.2001 for the post of Lecturer in Music (Instrumental) under the scheduled caste category candidates and thereafter, proceed further in accordance with law. This exercise be completed by the Punjab Public Service Commission-respondent No. 3 within a period of three months from the date of receipt of certified copy of the order.