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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

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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."

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       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

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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

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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.