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Harbhajan Singh Vs. the State of Punjab and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 3813 of 1976
Judge
Reported in(1977)79PLR494
ActsCivil Service (Judicial Branch) Rules, 1969; Civil Services (Judicial Branch) (Amendment) Rules, 1975
AppellantHarbhajan Singh
RespondentThe State of Punjab and anr.
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........examination held by the punjab public service commissioner for recruitment to the punjab civil service (judicial branch). ten posts had been advertised, of which two were reserved for released personnel of the armed forces. the results of the examination were published in may 1974. the petitioner was placed at no. 82 in the general order of merit. he was no. 2 in the order of merit in so far as it related to released armed forces personnel. one sampuran singh who was placed at no. 34 in the first successfully claimed that he also belonged to the category of released. armed forces personnel, in a writ petition filed by him. the result was that the petitioner was relegated to the third place in the category of released armed forces personnel. though the number of posts advertised.....
Judgment:

O. Chinnappa Reddey, J.

1. The petitioner passed the LL. B. examination of the Punjab University in the First Division in the year 1962 and started practising as an Advocate at Sangrur. He responded to the call of the nation and joined the Army as a Commissioned Officer in July 1963. He was released from the Army on 1-8-1968. He resumed practice as an Advocate at Dassuya. He was selected as an Assistant at District Attorney and worked in the capacity from September 1970 to May 1975. In December 1973, he appeared at a competitive examination held by the Punjab Public Service Commissioner for recruitment to the Punjab Civil Service (Judicial Branch). Ten posts had been advertised, of which two were reserved for released personnel of the Armed Forces. The results of the examination were published in May 1974. The petitioner was placed at No. 82 in the general order of merit. He was No. 2 in the order of merit in so far as it related to released Armed Forces Personnel. One Sampuran Singh who was placed at No. 34 in the first successfully claimed that he also belonged to the category of released. Armed Forces Personnel, in a writ petition filed by him. The result was that the petitioner was relegated to the third place in the category of released Armed Forces personnel. Though the number of posts advertised originally was only ten, it is now not disputed that in addition to the ten originally advertised, fifteen more posts have been filled up from the non-Armed Forces Personnel category. The petitioner claims that the number of posts reserved for released Armed Forces Personnel should correspondingly be increased by another three and that he should be appointed to one such post. The answer of the respondent is that the Demoblised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab) Civil Service (Judicial Branch) Rules, 1969, have been repealed and the Demoblised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab) Civil Services (Judicial Branch)Rules, 1975, as amended, which are now in force, excluded from the category of released Armed Forces Personnel, persons who have joined a civil service of the Union of a State or a civil post under the Union or a State after their release from the Armed Forces of the Union.

2. At the competitive examination held in December 1973 three candidates Shri R. N. Moudgil, Shri Sampuran Singh and Shri Harbhajan Singh (petitioner) belonging to the category of released Armed Forces Personnel came out successful. Under the rules, which were in force at that time, all the three were eligible to be appointed-in fact it was only on that basis that they were allowed to appear at the examination-depending upon the vacancy-position. The rules, which were then in force ceased on 14-9-1974 and new rules came into force with effect from 15-9-1974. Rule 5 of the 1975 Rules provided that no released Indian Armed Forces Personnel shall be eligible to compete for the reserved vacancies unless he possessed the educational and other qualifications prescribed in the Punjab Civil Service (Judicial Branch) Rules, at the time of joining the pre-commission training or at the time of getting the commission where there is only post-commission training.

Had the rule been in force in 1973, Shri Mudgil would not have been eligible to appear at the competitive examination which was held in December 1973 but since the 1975 Rules did not apply to the examination held in 1973. Shri Moudgin was in no way affected by the making of the 1975 Rules. Nonetheless Shri Moudgil was not appointed to the Service and he, therefore, filed C. W. P. No. 1464 of 1976.* After notice of motion had been issued and after the State Government had taken repeated adjournments on one pretext or the other, R. 1(2) of the 1975 Rules was amended so as to say that the Rules was amended so as to say that the Rules should be deemed to have come into force on 15-9-1969. Another rule which was amended along with R. 1(2), was R. 3(iii)(cc) by which, among other things, it was provided that released Indian Armed Forces Personnel did not include Indian Armed Forces Personnel who, 'before the appointment against vacancies reserved under the rules, joined or join a civil service of the Union or a civil service of a State or a civil post under the Union or a State after their release from the Armed Forces of the Union.' In the writ petition filed by Shri Moudgil, this Court struck down Cls. (2) and (5) of the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab) Civil Service (Judicial Branch)(First Amendment) Rules, 1976. Rule 3(iii)(cc) was not in question in that writ petition.

3. It was the contention of the State Government that the new definition of released Armed Forces Personnel introduced by the 1976 amendment disentitled the petitioner from being appointed to the Punjab Civil Service (Judicial Branch) as he had accepted employment as Assistant District Attorney from September 1970 to May 1975. The argument of the learned counsel for the petitioner was that Clause (2) of the notification introducing the amended rules and making them effective from 15-9-1969 having been struck down, the amended rules cannot apply to the petitioner who passed the competitive examination long before the coming into force of the amended rules. In any case it was contended that the amended definition did not, in terms, apply to persons who were not holding any civil post on the date of the coming into force of the amended rules or join any such post thereafter. It was contended that R. 3(iii)(cc) was, like amended R. 1(2), aimed at excluding the three candidates belonging to the category of released Armed Forces Personnel who had passed the competitive examination, and should be struck down.

4. Amended R. 3(iii)(cc)(ii)(b), with which we are concerned, is as follows:

'Released Indian Armed Forces Personnel means........ but does not include, Indian Armed Forces Personnel who before their appointment against vacancies reserved under these rules................. joined or join a Civil Service of the Union or a Civil Service of a State or a Civil post under the Union or a State after their release from the Armed Forces of the Union'.

5. Now, the Rule-making authority must have been aware that a competitive examination for appointment to the Service had been held under the old rules and appointments were yet in the offing. Surely, the rule-making authority did not intend to exclude from appointment candidates who were eligible under the old rules but became ineligible by reason of an amendment of the rules made after the process of selection had almost reached a final stage. The amendment did not in any manner touch the qualifications of the candidates. Had the amended rule been in force from the beginning, persons in the position of the petitioner might not have accepted any employment and preferred to wait for selection and appointment to the Punjab Civil Service (Judicial Branch). Are they to be penalised by barring their entry into the Punjab Civil Service (Judicial Branch) because they accepted employment at a time when acceptance of such employment was not a bar to appointment to the Service? We don't think that we will be justified in attributing such an unreasonable intention to the Rule-making authority. In our view, the only reasonable interpretation of the amended rule, consistent with the prevailing situation, is to hold that only those persons who having joined the service of the Union or the State or a post under the Union or the State or a post under the Union or the State previously continued to hold the post on the date of the coming into force of the rules, or who joined a post after the coming into force of the rules, are excluded from appointment to the Punjab Civil Service (Judicial Branch). The expression 'joined or joins' must be given a reasonable interpretation in the context of the situation and we think that out interpretation does not strain the language or attribute unreasonableness to the Rule-making authority. In that view, the petitioner cannot be said to be ineligible for appointment.

6. In the view that we have taken, it is unnecessary for us to go into the question of the vires of R. 3(iii)(cc)(ii)(b). We, would, however, like to add that the rule does appear to our mind to be unreasonable. These rules prescribing a quota of reservation for released Armed Forces Personnel are in force for a limited period only. If during that period a person is otherwise eligible for appointment, we see no justice in excluding him from appointment on the ground that he accepted some other employment in the meanwhile. It looks as if a person belonging to the category of released Armed Forces Personnel accepts as inferior post he does so on pain of losing eligibility to a superior post. If no superior post is readily available immediately on his release from the Armed Forces he must wait till such post became available and it may never become available. In the meanwhile, he is precluded from accepting an inferior post even to keep his body and soul together. Surely, that is not how we repay our debt to those that readily shed their blood for us.

7. We questioned the learned Deputy Advocate General whether there was any other obstacle such as want of vacancy in the way of the petitioner, apart from R. 3(iii)(cc)(ii)(b). We were assured there was none. We, therefore, direct the respondents to consider expeditiously the fitness of the petitioner for appointment under Rr. 4 and 5 of Part A of the Punjab Civil Service (Judicial Branch) Rules and if found fit, thereafter to do expeditiously all things necessary to appoint the petitioner to the Punjab Civil Service (Judicial Branch). The direction is in identical terms as the direction issued in the case of R. N. Moudgil. We understand that the decision of this Court in Moudgil's case has become final as the Supreme Court has dismissed an application for special leave to appeal against that decision.

8. Order accordingly.


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