The State of Punjab and Another vs Shri Mohan Singh Dhindsa and Another

G.S. Singhvi, J.—These appeals are directed against die order dated 22.8.1988 passed by the learned Single Judge in C.W.P. 2648 of 1986 ''Mohan Singh Dhindsa v. State of Punjab and Ors.''

Vide advertisement which was published in the Tribune dated 27.2.1985, the Government of Punjab invited applications for recruitment of Assistant District Attorneys Grade-II. The writ petition-Mohan Singh Dhindsa, Kanwajit Singh Toor who is appellant in L.P.A. No.323 of 1989 and others who had applied in response to the aforesaid advertisement, were interviewed by the Selection Committee on the recommendations of the Selection Committee, forty one persons including Kawaljit Singh Toor were appointed as Assistant District Attorneys, Grade II on temporary basis. The appointment of Kanwaljit Singh Toor was treated against the post reserved for Ex. Servicemen. In the writ petition filed by him, Mohan Singh Dhindsa challenged the appointment of Kanwaljit Singh primarily on the ground that he was not entitled to be Appointed against the post reserved for Ex-Servicemen. The State Government and the Legal Remembrancer-cum-Director, Prosecution and Litigation, Punjab defended the appointment of Kanwaljit Singh by stating that he belongs to the category of dependents of Ex-Servicemen and that he was selected against the roster point reserved for Ex-Servicemen.

Learned Single Judge held that Kawaljit Singh could have been appointed only if the Ex-Servicemen were not available. He further held that Mohari Singh Dhindsa and another person belonging to the category of Ex-Servicemen were available for appointment and, therefore, Kanwaljit Singh who was a dependent of Ex-Servicemen was not entitled to be appointed as Assistant District Attorney, Grade-II. On the basic of this conclusion, the learned Single Judge quashed the appointment of Kanwaljit Singh Toor and directed the appointment of Mohan Singh Dhindsa and the candidate who stood at no.6 in the merit list of Ex-Servicemen.

In L.P.A. No.156 of 1989, the order passed by the learned Single Judge has been challenged on the ground that the finding recorded by the learned Judge regarding de-reservation of the vacancy meant for Ex-Servicemen is erroneous. Kanwaljit Singh Toor, who is directly affected by the order of the learned Single Judge has filed L.P.A. No. 323 of 1989. He has pleaded that the learned Single Judge did not have jurisdiction to grant relief to a person who had not filed petition before the Court. He has also urged that the learned Single Judge should not have nullified his appointment without considering his plea that he had applied for appointment as a general category candidate.

We have heard the learned counsel for Kanwaljit Singh Toor and the learned Deputy Advocate General, Punjab and have carefully gone through the record of the case.

At the out-set, we deemed it appropriate to take notice of the statement made by the counsel Kanwaljit Singh Toor that after the decision of the writ petition, Mohan Singh Dhindsa has been appointed as District Attorney by direct recruitment and, therefore, the decision of these appeals will not affect him in any manner.

On the merits of the case, learned Deputy Advocate General is joined by the counsel for Kanwaljit Singh Toor in arguing that the learned Single Judge has acted without jurisdiction by directing the appointment of a person who was not petitioner before him. The learned counsel submitted that the learned Single Judge should have examined the entire matter in the light of the claim made by Mohan Singh Dhindsa and relief, if any, should have been confined to him. Learned counsel for Kanwaljit Singh Toor relied on Neelima Shangla v. State of Haryana 1986(3) SLR 389; Mohinder Sain Garg v. State of Punjab 1991(1) SLR 546 ; Pradeep Kumar v. State of Haryana 1992 (1) SLR 461; Somana Gowda v. State of Karnataka 1992(3) SLR 149 and Anu Gupta v. Haryana State Agricultural Marketing Board 1993(1) SLR 214. He then argued that the learned Single Judge should not have upset the appointment of Kanwaljit Singh Toor without considering the fact that he had applied for recruitment as a general candidate and not as an Ex-Servicemen. Learned counsel submitted that even if Kanwaljit Singh was held not entitled to be appointed against the posts reserved for Ex-Servicemen, the official respondents should have been directed to consider his case for appointment vis-a-vis other general category candidates before his appointment could be nullified after a period of three years.

On tie first question, we are unable to agree with the learned counsel for the appellants. No doubt the candidate who was placed at No.6 in the merit fist did not file writ petition but while exercising jurisdiction under Article 226 of the Constitution, the leaned Single Judge could not have ignored the fact that a candidate more meritorious than the writ petition was awaiting appointment. If the learned Single Judge had given a direction to the official respondents to appoint the writ petitioner then such direction would have been plainly unconstitutional and would have been invalidated on the ground of violation of Articles 14 and 16 of the Constitution. It is trite law that while making appointment to the public service on the basis of selection made by the recruiting agency, the appointing authority cannot violate the merit list/select list ( The State of Haryana Vs. Subash Chander Marwaha and Others, and Shankarsan Dash Vs. Union of India, ). if the appointing authority cannot violate the merit list, we find it impossible to agree with the learned counsel for the appellants that the learned Single Judge has erred in directing the consideration of the case of the candidate who stood aft no.6 in the merit list. Rather, the direction given by the learned Single Judge is consistent with the law laid down in state of State of Kerala Vs. Kumari T.P. Roshana and Another, . Although that decision relates to admissions in Medical Colleges, the principle of law laid down thereat is that while adjudicating a dispute having impact on the rights of others, the Court must not ignore the claim of more meritorious persons.

We are also of the opinion that in matters like the present one, the High Court cannot pass an order which may cause injustice to a person merely because he has not filed writ petition. In order to discharge its constitutional duty of doing justice, the Court is empowered to modulate relief and give appropriate direction having regard to the facts of a particular case. No rigid and straight-jacket formula can be laid down for exercise of jurisdiction by the Court of equity. An attempt must always be-made to do justice to all. The constitutional goals of justice and equality have to be kept in view by the Courts in the same manner in which the Legislature and the Executive have to do so while exercising their respective jurisdictions and discharging their duties. The theory that relief should be confined only to those who are able to approach the Court by paying hefty fee to the lawyer and by paying Court fee will be totally counter-productive and will breed injustice to those who cannot, approach the Court due to reasons like poverty ignorance etc. In an era of Courts'' interdiction in various public interest matters on letters written by the individuals/group of individuals and even newspaper reports, the refusal of the Court to recognise the rights of more meritorious person will be a total enigma to the constitutional doctrine of equality.

In view of the above discussion, we hold that the learned Single Judge did not commit any error when he directed the appointment of the candidate who was at no.6 in the merit list. The judgments relied upon by the learned counsel for Kanwaljit Singh toor do not lay down an abstract proposition of law that in all cases, the Court should confine a relief only to those who are writ petitioners. A careful study of the various precedents relied upon by the learned counsel shows that in each case, the Court gave relief having regard to the facts of that particular case. None of these decisions can be treated as an authority for the proposition that the Court should give relief to the writ petitioner ignoring the better merit/claim of other persons.

The argument of the learned Deputy Advocate General that the learned Single Judge, should have given an omnibus direction to consider the case of the petitioner and other selected candidates instead of directing the appointment of the writ petitioner and the candidate who stood at no.6, merits acceptance. We may have dilated on the issue in detail but keeping in view the fact that the petitioner has already been appointed as District Attorney by direct recruitment it is not necessary to give further direction in this regard.

The contention urged by the learned counsel for Kanwaljit Singh that the learned Single Judge should not have invalidated and quashed the appointment of his client, without considering the fact that he had applied for recruitment as a general category candidate and not as a dependent of Ex-Serviceman also merits acceptance. Learned counsel is right in his submission that the appellant cannot be penalised for the mistake committed by, the official respondents of appointing him against the post reserved for Ex-Servicemen. Kanwaljit Singh Toor was not to be blamed for his appointment as a dependent of Ex-Serviceman because he did not have any role to, play in the issuance of the appointment order. In any case, it was the duty of the learned Single Judge to have directed the official respondents to examine the merit of Kanwaljit Singh Toor vis-a-vis other general category candidates before his appointment as Assistant District Attorney Grade-II could be quashed.

On the basis of the above discussion, we partly allow the appeals and quash the order, passed by the learned Single Judge setting aside. The appointment of the appellant Kanwaljit Singh Toor. The official respondents are directed to examine the merit of, Kanwaljit Singh Toor-vis-a-vis other general category candidates. If it is found that persons less meritorious than him have been appointed against the general category posts, then Kanwaljit Singh shall be treated as appointed on the post of Assistant District Attorney Grade II (general category) w.e.f. the Sate a person less meritorious than him was appointed. In that event, his pay shall be fixed notionally from the date of appointment. However, he shall get other consequential benefits. The State of Punjab and the Legal Remembrancer-cum-Director, Prosecution and Litigation are (directed to undertake this exercise and pass appropriate order within two. months of the submission of a certified copy of this order. The registry is directed to give dasti copies of this order to the counsel for the parties.