Civil Writ Petition No.5084 of 2013 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: September 10, 2013 Date of Decision: December 13,2013 Vijay Kumar Bansal ...Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTIC E HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH, JUDGE Present: Mr. Rajiv Atma Ram, Sr.Advocate with Mr. Inder Pal Goyat, Advocate, for the petitioner. Mr. H.S.Hooda, Advocate General, Haryana with Mr. D.S.Nalwa, Addl.A.G., Haryana & Mr. Vinod S. Bhardwaj, Addl.A.G., Haryana, for respondent Nos.1,2,4 and 5. Mr. H.N.Mehtani, Advocate, for Haryana Public Service Commission-respondent N o.3. Mr. Girish Agnihotri, Sr.Advocate with Mr. Arvind Seth, Advocate, for respondent Nos.6 to 10. ***** AUGUSTINE GEORGE MASIH, JUDGE This Public Interest Litigation (hereinafter referr ed to as “PIL”) has been preferred under Article 226 of the Constitution of India by an Advocate, who asserts it to be one devo id of involvement of any personal interest of his therein while chall enging the Haryana Civil Writ Petition No.5084 of 2013 (O&M) :{ 2 }: School Teachers Selection Board Act, 2011 (for shor t, “2011 Act”), for declaring it to be ultra-vires to the Constitution, being contrary to Chapter II, Part XIV of the Constitution of India a nd also the appointment of respondent No.6, Nand Lal Punia, as Chairman and respondent Nos.7 to 10 as Members of the Haryana Sc hool Teachers Selection Board (for short, “the Board”), being ill egal and arbitrary pursuant to tailor-made qualifications in the impug ned 2011 Act. It is the contention of the learned Senior counsel for the petitioner that the petitioner, who is an Advocate, has earlier filed various PIL petitions in this Court, which have bee n entertained on various issues and remedial action has been taken b y the respondents on receipt of notices. He asserts that the present writ petition has been filed with a bonafide intention t o protect and preserve the basic constitutional structure and sch eme as under Article 320 of the Constitution of India, a duty ha s been cast upon the Public Service Commission to conduct examinations f or appointment to the services and to assist the States in framing and operating schemes for any service. A mandate has been laid up on the State to consult the Commission on all matters relating to m ethod of recruitment to the Civil Services and civil posts. However, through a process of enacting the 2011 Act, the Haryana Publ ic Service Commission (hereinafter called “the HPSC”) has been made ineffective and instead appointments have been made to the Board by respondent No.5, the Chief Minister of Haryana S tate by Civil Writ Petition No.5084 of 2013 (O&M) :{ 3 }: appointing persons of his choice as its Chairman an d Members, casting doubt upon the constitution of Board itself , which has been given the duty and responsibility of selection of t eachers for appointment to the Government Schools and teacher e ducators, educational supervisors for School Education Depart ment in the State. All posts of teachers, except those of the m inisterial staff i.e. Group `A', `B' and `C' have been put under the powe rs of the Board for making recommendations for their appointments. While referring to the history of the HPSC, it has been contended that it came into existence on 1.11.1966 on the formation of the State. In the year 1973, appointments to all Class III and Class IV posts were taken out of the purview of the HPSC. However, selection to all Class I and Class II posts continu ed to be made by the HPSC. The powers and functions of the Commissio n have been diluted as its duties and responsibilities have bee n curtailed to the extent that the requisition for posts, which were s ent to the HPSC for recruitment to various posts, had been withdrawn on various occasions. However, in the year 2005, blanket inst ructions dated 7.3.2005 were issued for withdrawing all the requis itions sent for filling up various categories of posts without assi gning any reason whatsoever. On 9.3.2005, requisition for filling up 57 posts of the Haryana Civil Services (Executive Branch) and Allie d Services for the year 2004 were withdrawn. By this process, more tha n 95% of the posts under the State have been taken out of the pu rview of the Civil Writ Petition No.5084 of 2013 (O&M) :{ 4 }: HPSC and less than 5% remain with it. Many posts of Members of HPSC are lying vacant and only 2 posts are occupied i.e. one by Chairman and another by a Member. Since 9.8.2008, t he working strength of the HPSC, including its Chairman, never exceeded 4, reflecting that it has been rendered totally defunc t. Earlier, the appointments taken out of the purview of the HPSC i .e. Class `C' and `D' posts, were being filled up through the Departm ental Selection Committees or the Haryana Subordinate Service Selec tion Board, which shows that its functions are being delegated and performed by the extra constitutional bodies created by the Stat e. The latest endevour of the State Government has been the creat ion of yet another extra constitutional agency i.e. the Board for recruitment of the posts of teachers, educators, educational super visors for School Education Department, which includes Group `A', `B' and `C' posts through the impugned 2011 Act. The counsel submits that the 2011 Act has been so formulated to give undue benefit to respondent Nos. 6 to 10 and in particular respondent No.6, who has been appointed as a Chairman of the Board. The counsel emphasizes that this is s o as the retirement age fixed for the Chairman is 72 years w ith a view to accommodate him. For saying so, he elaborates that earlier respondent No.6 was the Chairman of the Haryana Sta ff Selection Commission (for short, “H.S.S.C”), when he was appo inted on 23.10.2005 with the age of retirement as 65 years. Prior to his Civil Writ Petition No.5084 of 2013 (O&M) :{ 5 }: retirement in September 2007, the upper age limit w as increased to 68 years vide notification dated 21.6.2007. He reti red in September 2010 on attaining the said age. As per the counsel, he is a close relative of respondent No.5 i.e. the Chief Minister and the relationship has been pointed out to be that he is father of the teacher of the son of the Chief Minister. The age of retirement at 72 years has been kept only to accommodate him as the Chairman of the Board, which, he asserts, is not sustainable in the light of the observations of this Court in Civil Writ Petition No.11082 of 1999 ( Manmohan Singh Chaudhary Vs. State of Haryana and others) , wherein it has been stated that the increase in age, which was made at the behest of Chief Minister, was with an intention to favour the petitioner therein, who was appointed as the Chairman of the H.S.S.C. a t the age of 67 years, when the age was increased to 70 years and t hereafter to 72 years from the earlier age fixed for retirement of the Chairman at 60 years. The age fixed for holder of Constitutional o ffices such as the Judges of the High Court, Chairman and Members of t he State Public Service Commission is 62 years whereas the a ge of retirement of the Judges of the Supreme Court and C hairman and Members of the Union Public Service Commission is 6 5 years. Even the age of retirement of the Chairman of the Nation al Human Rights Commission is 70 years and, therefore, fixing the a ge at 72 years, that too of the Member of the H.S.S.C., which is no t a Constitutional post, was said to be unjustified. Civil Writ Petition No.5084 of 2013 (O&M) :{ 6 }: Challenging the suitability of respondent No.6 as t he Chairman of the Board, the counsel has referred to the judgement passed by this Court in Civil Writ Petition No.1565 6 of 2010 (Sanjeev Kumar and others Vs. State of Haryana and others) , decided on 11.9.2012, (Annexure P-9) alongwith other writ peti tions, wherein adverse comments have been made in respect of the m ode of functioning of the said respondent i.e. he being th e Chairman of H.S.S.C. had not involved or taken into confidence the other Members of the Commission and had acted unilaterall y without consulting and associating the Members in any of th e decisions. The basic concept of collective responsibility or decis ion making process as postulated in the notification under which the H .S.S.C. was constituted stood violated. The Letters Patent Appe al in L.P.A. No.1555 of 2012, Vijay Kumar and others Vs. Sanjeev Kumar and others, preferred against the said judgement stands dismis sed on 30.09.2013, by upholding the observations made by t he Single Judge and costs were also imposed. On this basis, the sel ection and appointment of respondent No.6 is sought to be chal lenged, being arbitrary with a malafide intention and, thus, unsu stainable, which deserves to be quashed. Acquaintance of respondent No.5 with respondent Nos.7 to 10 has also been highlighted to assert that their appointment is also not on merits but for other rea sons alien to the merits for selection to the post of Member. Referring to Article 320 of the Constitution of Ind ia, Civil Writ Petition No.5084 of 2013 (O&M) :{ 7 }: highlighting therein the functions of the H.P.S.C., learned Senior counsel for the petitioner asserts that it has been assigned the basic function of conducting examinations for appointment s to the services of the States. No provision under the Constitution abrogates the absolute power vested in this regard in the State P ublic Service Commission. Intention of the framers of the Constit ution is clear and apparent that the State Government is not empowered to bypass the Commission at its sweet will and to make selection to the services under the State through its own agencies. Chapter I I of Part XIV of the Constitution would just be rendered redundant a nd the use of the word `shall' in various clauses makes it absolutely clear that the makers of the Constitution had never intended to cr eate any exception so far as the duty of the Public Service Commission to conduct examinations for appointment to the service s is concerned. Referring to Article 321, he submits that the Const itution rather provides for extension of the functions of the Comm ission for making recruitments to the services of any legal authority or other body corporate constituted by law or any public institut ion. The basic structure of the Constitution of India by abrogatin g and diluting the powers and functions of a Constitutional body i.e. the Public Service Commission stands violated, especially when the Har yana Government has entrusted the selection to more than 90% of the posts and services under the State to various Gover nment agencies having the effect of nullifying Chapter II Part XIV of the Constitution. Civil Writ Petition No.5084 of 2013 (O&M) :{ 8 }: The independence of the body, such as a Public Serv ice Commission as provided for in the Constitution, stands comprom ised by constituting such like Government agencies who can be pressurized and influenced in the manner of selection and maki ng appointments to the posts and services of the State. Mandate of the Constitution has been overlooked and rather violated as Article 320 of the Constitution of India requires consultation with th e Commission even if a Board is to be formed. Nothing has been provid ed under Article 320 of the Constitution of India, which negates the mandate of the Constitution with regard to the consultation with t he Commission, especially the recruitment of the persons on the po sts and to the State services. The process of selection for appoin tment bypassing the Commission is unsustainable and, thus, enactmen t of the impugned 2011 Act is unsustainable. Referring to various provisions of the impugned 201 1 Act, the learned Senior counsel has submitted that it is not an independent body as the appointment to the Board is solely at the discretion of respondent No.5 and, therefore, would be under his influence while performing its duties and functions . The 2011 Act, being violative of the basic structure of the Const itution, especially having the effect of abrogation of Chapter II Part XIV of the Constitution and putting it as a substitute to the Commission, when the same has been enacted with the precise tailor-m ade qualifications and purpose to accommodate a particu lar person, Civil Writ Petition No.5084 of 2013 (O&M) :{ 9 }: cannot be sustained and is based upon personal bias and malafide intention of respondent No.5 and, thus, the selecti on/appointment of the Chairman and Members deserve to be quashed by d eclaring it ultra-vires the Constitution. In support of these c ontentions, counsel for the petitioner has referred to the judgements o f the Supreme Court in K.Narayanan and others Vs. State of Karnataka and others, 1994 Supp. (1) Supreme Court Cases 44 and Babu Verghese and others Vs. Bar Council of Kerala and others , (1999) 3 Supreme Court Cases 422 to assert that if the manner of doing a particular act is prescribed under any stat ute, the act must be done in that manner or not at all. Referring to a Division Bench judgement of the Alla habad High Court in the case of Sushil Chandra Srivastava Vs. State of U.P. and others, MANU/UP/1237/1995, the counsel contends that proviso to Clause (3) of Article 320 of the Constit ution of India cannot be converted into a general rule and will not null ify the same. Proviso is added to an enactment to qualify or create an ex ception and, therefore, the general rule has to be given precede nce. Reference has also been made to the judgement of the Supreme Court in the case of J & K Public Service Commission Vs. Dr.Narinder Mohan , (1994) 2 Supreme Court Cases 630 to contend that once the statutory rules are framed, appointment shall be ma de only in accordance with the said rules and no exception to the same can be made. The proviso to Article 320 of the Constitutio n of India would Civil Writ Petition No.5084 of 2013 (O&M) :{ 10 }: not be applicable in those circumstances in respect of which the consultation with the Commission may be mandatory. He, on this basis, asserts that exercise of powers under provis o to Clause (3) of Article 320 of the Constitution of India, amending the Haryana Public Service Commission (Limitation of Functions) Regula tions, 1973, vide notification dated 16.12.2011 by adding Clause (r), whereby the initial appointments to the posts of teachers, educ ation supervisors and teacher educators of Group `B' in School Educat ion Department, Haryana, which has been withdrawn, is unsustainable . On the above submissions, prayer has been made for allowing the writ petition. Learned Advocate General for the State of Haryana, on the other hand, has raised a preliminary objection with regard to the maintainability of the present writ petition by ass erting that the same is not a PIL but has been filed merely on the basis of personal/ political interest litigation. Further an objection has been taken with regard to the non-compliance with the requirement o f the maintainability of Public Interest Litigation Rules , 2010, forming part of Chapter I-A (c), Volume V of the Punjab and Hary ana High Court Rules and Orders. He further submits that the petit ioner has a checkered political career and this writ petition h as been preferred with a malafide intention, motivated by political c onsideration against the present Government of the State. It has been as serted that the petitioner has not disclosed in the present writ pe tition that he had Civil Writ Petition No.5084 of 2013 (O&M) :{ 11 }: contested the 2009 assembly elections from Kalka Co nstituency as a Bahujan Samaj Party candidate. After being given an opportunity to file an additional affidavit, the petitioner has no t disclosed complete details of his political interest and clash with th e ruling party. It has been pointed out by the learned Advocate General, b y referring to affidavit dated 24.08.2013 filed by the State, the association and growth of the petitioner with the ruling Congress P arty in State of Haryana from the year 1992 to 2009, including vario us administrative and political posts held by him in Congress Party. Petitioner thereafter left the Congress Party and fought elect ion to the Vidhan Sabha on a ticket of the Bahujan Samaj Party in th e year 2009. However, after his defeat in the said election, he joined another political party i.e. Indian National Lok Dal (INLD) in the year 2011 and at present is Member of the said party. The petitio ner has been giving political statements in the Press Conferences and h as been participating in the functions and political rallie s of the political parties. On this basis, it has been asserted by the learned Advocate General, Haryana, that the writ petition cannot be treated as a PIL and, thus, deserves to be dismissed. Objection has also been raised to the entertainment of the present writ petition as a PIL on the ground th at the writ petition primarily is against the selection and appointment of respondent Nos.6 to 10, which, being a service matter, cannot be entertained in the light of the authoritative pronouncement of the Supreme Court in Civil Writ Petition No.5084 of 2013 (O&M) :{ 12 }: its various decisions, including, Hari Bansal Lal Vs. Sahodar Prasad Mahto and others, (2010) 9 Supreme Court cases 655 and Girjesh Shrivastava and others Vs. State of Madhya Pradesh and others, (2010) 10 Supreme Court Cases 707. Learned Advocate General, Haryana, has referred to the judgement of the Supreme Court in the case of State of U.P. Vs. Manbodan Lal Srivastava, AIR 1957 SC 912 to contend that Article 320 of the Constitution of India is not mandatory a nd rather is directory. Therefore, he contends that by taking ou t of the purview of the HPSC., the posts and the services of the Haryan a Education Department specified in the 2011 Act does not viola te the basic structure of the Constitution as the Constitution i tself under proviso to clause (3) of Article 320 of the Constitution of In dia carves an exception. As regards the challenge to the vires of 2011 Act b ased upon malafides and with an intention to benefit res pondent No.6 in particular, as has been asserted by the petitioner, he asserts that the same cannot be attributed to the legislative action of the State. In support of this contention of his, reliance has bee n placed upon the judgements of the Supreme Court in T.Venkata Reddy and others Vs. State of Andhra Pradesh, (1985) 3 Supreme Court Cases 198, State of A.P. and others Vs. MCDOWELL and Co. and others, (1996) 3 Supreme Court Cases 709 and State of M.P. Vs. Rakesh Kohli and another, (2012) 6 Supreme Court Cases 312. His Civil Writ Petition No.5084 of 2013 (O&M) :{ 13 }: submission is that the Act cannot be challenged on the ground of non-application of mind or malafides or it being ar bitrary or unreasonable. The Court cannot sit in judgement ove r the wisdom of the legislature. There are only two grounds on whic h a law laid down by the legislation can be struck down by the Courts viz lack of legislative competence and violation of any of the fundamental rights guaranteed in Part III of the Constitution or of an y other constitutional provision. He has referred to Entry 41 of List II, Schedule 7 of the Constitution to assert that the State is competent to legislate under Article 246 of the Constitution of India as the sam e relates to State Public Services. The State legislature was, thus, f ully competent to enact the 2011 Act. Referring to the mode of appointment of the Chairma n and the Members of the Board, as provided under the 2011 Act, the learned Advocate General asserts that appointment o f the Chairman and the Members is to be made by the Government on the recommendation of the collegium, which consists of the Chief Secretary, Principal Secretary/Commissioner, School Education, Haryana and the Vice Chancellor of any of the State Universities to be co-opted by the Chief Secretary. On the basis of the recommendations of the panel framed by the collegiu m, the Chief Minister selects the Chairman and Members as per recommendations for the purpose of making appointme nt by the Government. This process and procedure is based upo n a well Civil Writ Petition No.5084 of 2013 (O&M) :{ 40 }: Supreme Court in Duryodhan Sahu (Dr) Vs. Jitendra Kumar Mishra, (1998) 7 SCC 273, which has been followed in vario us judgements by the Supreme Court till date such as i n Hari Bansal Lal's case (supra) and Girjesh Shrivastava's case (supra) relied and referred to by the learned Advocate General. On e of the prayer as made in the present writ petition, to be specifi c Prayer (v), where a writ in the nature of certiorari has been sought to be issued for quashing the appointments of respondent Nos.6 to 10 being Chairman and Members of the Board, would fall in th e category of a service matter, for which PIL would not be maintain able. The fact that the petitioner first left the Congres s Party, which is a ruling party in the State of Haryana and further contested Assembly elections in the year 2009 on a Bahujan Sa maj Party ticket, which he had joined, shows that he had a gr udge against the ruling party. He has now even switched over his all egiance to another political party i.e. Indian National Lok Dal in the year 2011. His statements, which have been placed on record alongw ith the photographs, clearly depict his political ambitions and the present writ petition, thus, can safely be said to be one w hich is motivated with a political intention to gain publicity by mis using the judicial Forum by projecting the present petition as a PIL, taking the shield of the earlier petitions, which had been filed by him as PILs. The present writ petition, thus, is to be categorized a s publicity interest litigation or political interest litigation, lackin g bonafides, leading to Civil Writ Petition No.5084 of 2013 (O&M) :{ 41 }: the conclusion that the petitioner has no locus-sta ndi to file the present petition as a PIL and rather the same is a petition motivated with malafides against respondent No.5 to gain poli tical milage by misusing the judicial Forum. The present petition, being a mischievous litigation, deserves to be dismissed wi th costs. In view of the above, we dismiss the present writ p etition as not maintainable in the form of PIL for the lack of locus-standi of the petitioner as also on merits with costs, quanti fied at ` 25,000/- to be deposited with the Mediation and Conciliation Ce ntre of this Court within a period of two weeks from today. Interim or der dated 11.04.2013 passed in this case stands vacated. However, before parting with this case, an aspect w hich has come to light from the pleadings and submission s made by the counsel for the parties during the hearing of the c ase relating to and with regard to the conduct of respondent No.6 while he was the Chairman of the Haryana Staff Selection Commission which requires a mention to be made here. His role and the manner of working during the process of selection to the posts of Phy sical Training Instructors (PTIs), pursuant to advertisement No.6/ 2006, has severely been criticised and adversely commented up on by the Single Bench, which has been upheld and reiterated by the Division Bench of this Court in L.P.A. No.1552 of 2012 Vijay Kumar and others Vs. Sanjeev Kumar and others), decided on 30.9.2013 (Annexure `A'), needs to be taken note of by the St ate. It is, however, Civil Writ Petition No.5084 of 2013 (O&M) :{ 42 }: for the competent authority to take a decision at i ts own end with regard to continuance or otherwise of respondent No .6 as the Chairman of the Board. We stop short here as we are quite sanguine of an appropriate decision to be taken in this rega rd within a reasonable time. We would like to clarify here itse lf that the above observations of ours will have no impact whatsoever upon the process of selection initiated or in process and/or concluded by the Board headed by the respondent No.6. ( SANJAY KISHAN KAUL ) (AUGUSTINE GEORG E MASIH) CHIEF JUSTICE JUDGE December 13,2013 khurmi
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