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2013 Supreme(P&H) 588
IN THE HIGH COURT OF PUNJAB AND HARYANA
[LARGER BENCH]
Before
The Hon’ble Ms. Justice Ritu Bahri
The Hon’ble Mr. Justice Paramjeet Singh
The Hon’ble Mr. Justice Naresh Kumar Sanghi
The Hon’ble Mr. Justice Rameshwar Singh Malik
The Hon’ble Mr. Justice Inderjit Singh
CWP No.8421 of 2002
Amarbir Singh
v.
State of Punjab & Ors.
{Decided on 31/05/2013}
Present:Mr. Rajiv Atma Ram, Sr. Advocate with Mr. Arjun Pratap Atma Ram, Advocate, Mr. Gurminder Singh, Advocate, Mr. Akshay Bhan, Advocate, Mr. Vivek Sharma, Advocate.
Mr. Pradeep Kumar Bajaj, Advocate, Ms. Madhu Dayal, Advocate, Mr. R.S. Pandher, Advocate, Mr. Sanjiv Bansal, Advocate, Mr. Gaurav Sharma, Advocate, Mr. Kushaldeep S. Sandhu, Advocate, Mr. Puneet Jindal, Advocate, Mr. Rahul Sharma, Advocate, Mr. O.P. Gupta, Advocate, Mr. Kapil Kakkar, Advocate, Mr. G.S. Bal, Advocate, Mr. S.S. Rangi, Advocate, Mr. Vikram Chaudhary, Advocate, Mr. Sumer Singh Brar, Advocate, Mr. Sumeet Goel, Advocate, Mr. M.C. Berry, Addl. A.G, Punjab.
Headnote:Service Law--PCS Executive--Selection of candidates--Tainted selection process--Scrapping entire selection and consequential termination of services--Not providing opportunity of hearing--Whether principles of natural justice are absolute?--Held, principles of natural justice are not absolute.
Service Law--PCS Executive--Selection of candidates--Tainted selection process--Re-examination--Whether state government was fair in giving chance of second examination to all candidates?--Held, Yes.
(A) Service Law--PCS Executive--Selection of candidates--Tainted selection process--Scrapping entire selection and consequential termination of services--Not providing opportunity of hearing--Whether principles of natural justice are absolute?--Held, principles of natural justice are not absolute.
Exceptions to requirement of principles of natural justice and procedures are all circumstantial and not conclusive--Every exception is to be admissible, taking into account facts and circumstances of each case--Where it is administratively impracticable to give hearing to every one and there is a large scale mal-practices, illegalities, irregularities, favoritism, fraud, mischief, corruption and deep-rooted conspiracy, in such circumstances, larger public interest will override individual interest. (Paras 48 & 49)
(B) Service Law--PCS Judicial & Executive--Selection of candidates--Tainted selection process--Registration of FIRs against petitioners/candidates--Effect--Held, all petitioners against whom FIRs have been registered definitely carry a trace, stain or blemish that they were tainted--Court is not examining whether evidence collected for recording FIR was sufficient to lead to conviction of all candidates--Effect of prosecution witnesses turning hostile would be considered by criminal Court where trial is pending--Evidence made available by Investigating Agencies before Committee was sufficient to come to a conclusion that all these candidates were tainted--Standard of proof required before a criminal Court is different from subjective satisfaction of an authority while taking an administrative decision--All these candidates are tainted as found by Committee. (Paras 19 & 20)
(C) Service Law--PCS Executive--Selection of candidates--Tainted selection process--Non-registration of FIRs against some candidates--Effect--Whether candidates against whom no FIR has been registered and has completed their probation period successfully and being non-tainted have a right to be confirmed on their posts?--Held, No, since majority of candidates were part of tainted selection process, thus, candidates against whom no FIRs are registered are not entitled for re-appointment--However, they shall be eligible for participating in any regular selection in future. (Para 21)
(D) Service Law--PCS Executive--Selection of candidates--Tainted selection process--Re-examination--Whether state government was fair in giving chance of second examination to all candidates?--Held, Yes
State government in an attempt to cleanse pond had quashed entire selection--At same time while terminating services government had taken a conscious decision to have a re-examination immediately for all candidates who had participated in earlier selection--Government made an attempt to refill tank with clean and pure water and in other words to safeguard interest of all candidates who had worked with government without any complaint for last three years and were not facing criminal trials--There was no challenge to this examination held in 2003 and, hence, candidates who choose not to appear in this examination had accepted decision of state government for holding fresh examinations after termination of their services. (Paras 19 & 23)
(E) Service Law--PCS Executive--Selection of candidates--Tainted selection process--Void ab initio-- Held, as far as modus operandi of selection process and manner in which chairman of commission had flouted rules and norms, entire selection process was not legally valid--It was vitiated--Selection process conducted by flouting all norms and manipulations so as to result in debarring or prohibiting clean candidates to enter into service of government as public servant and have no force of law--It is a void selection and invalidated completely due to fraud. (Para 24)
(F) Practice & Procedure--Doctrine of prospective over ruling--Object--Held, decision to over rule shall apply prospectively and not to existing law--Prospective declaration of law is a device innovated to avoid reopening of settled issues and to prevent multiplicity of proceedings--It is also a device adopted to avoid uncertainty and avoidable litigation--Object of prospective declaration of law is that all actions taken contrary to declaration of law prior to date of declaration are validated--It was a rule of “all judicial craftsmanship with pragmatism and judicial statesmanship as a useful outline to bring about smooth transition of operation of law without unduly effecting rights of people who acted upon law adopted prior to date of judgment overruling previous law--There shall be no prospective overruling unless it is so indicated in particular decision by Supreme Court u/Art.142 of the Constitution--Constitution of India, 1950, Art.142. (Paras 29 to 33)
(G) Service Law--PCS Executive--Selection of candidates--Tainted selection process--Revival of writ petitions--Validity--While allowing SLPs filed by 57 petitioners, Supreme Court granted liberty to file objections to report of Committee constituted by High Court--No direction by Supreme Court to extend this liberty to those candidates who had not filed SLPs in Supreme Court--Decision dated 07.07.2003 dismissing writ petitions by Full Bench of High Court in Amarbir Singh’s case became final as order was not challenged in appeal in SLP--Held, High Court in absence of any constitutional or statutory provision could not have revived these writ petitions much less on ground of remand order passed in appeals filed by 57 petitioners in Supreme Court--Orders of revival of writ petitions of such petitioners who did not file any appeal in Supreme Court is without jurisdiction and non-est. (Para 34)
(H) Words & Phrases--Word ‘taint’--Meaning--Held, The word ‘taint’ as per the New Shorter Oxford English Dictionary (Vol.-II) can be expressed to mean a trace, ‘stain’ or a ‘blemish’. It denotes some evil quality, a contaminating or corrupting influence--It can lead to mean an imbue with any thing objectionable or to contaminate or infect--Word ‘taint’ when used as a verb means dishonest, destroy integrity, vitiate, tarnish and degenerate morally. (Para 20)
Ms. Ritu Bahri, J.:- This judgment shall dispose of cases of 57 petitioners who had approached the Supreme Court against the judgment of Full Bench in CWP No. 8421 of 2002 and their cases have been remanded back by the Supreme Court i.e. CWP Nos. 8423, 8434, 8585, 8587, 8592, 8595, 8740, 8741, 8742, 8954, 8957, 14429, 8889, 8447, 8446, 8739, 8591, 14187, 13943, 8449, 8594, 8440, 8431, 8441, 8442, 8430, 10796, 8540, 8422, 8590, 8587, 8596, 8421, 14358, 19062, 8593, 14189, 14188, 8587 of 2002, 1548 of 2003 as well as cases of 24 petitioners who did not approach the Supreme Court against the order dated 07.07.2003 but filed the review applications i.e. CWP Nos. 8424, 8429, 8433, 8547, 8558, 8584, 8586, 8587, 8588, 8589, 14429, 14457, 14599, 10727 of 2002, 2459 of 2003, 1246, 11362 of 2008.
2. The following matters are for disposal which stand referred to the Full Bench on remand from the Supreme Court in the case of Inderpreet Singh Kahlon and others v. State of Punjab, [2006(3) Law Herald (SC) 2338] : 2006(5) JT 352. The judgment and termination orders of the candidates were set aside. Three categories of candidates can be segregated for scrutiny. The first category pertains to the candidates who are tainted. The second pertains to the candidates who are adversely effected by the process of selection being vitiated against the rules. The third set of petitioners are those whose petitions were dismissed by the Full Bench of this Court on 7.7.2003 and they did not challenge the said order before the Supreme Court. Their petitions have been revived after the remand whereby the Hon’ble Supreme Court has set aside the orders of the Government terminating the services of those who were appellants in the Supreme Court.
3. In the year 1998, Punjab Public Service Commission (for short ‘Commission’) held examination for selecting candidates of PCS Judicial and Executive Branches. The selected candidates were appointed and completed 3 years of probation period in service. Shri Ravinder Pal Singh Sidhu was the Chairman of the Commission. About Rs. 22 crores were recovered from his possession alleged to be illegal gratification taken to help candidates in the process of holding examination/interview/selection of candidates for jobs in the state. Apart from money recovered the Investigating Agency collected evidence which was recorded in statements of the witnesses/accused under Sections 161 and 164 Cr.P.C involving some of the petitioners and the Chairman of PPSC. F.I.R’s were lodged, trials proceeded and are pending.
4. Pursuant to the directions given by the Supreme Court, Committee of three Judges of this Court was constituted. The Committee was to separate the tainted candidates from the non-tainted candidates, selected to Executive posts by the Commission, during the Chairmanship of Shri Ravinderpal Singh Sidhu. The final analysis of the report dated 8.2.2007 is as under:-
“Firstly, it is possible to infer, that in the processes of selection to which the present investigation is limited, there were 40 tainted candidates. This inference would, however, be subject to an opportunity to be afforded to them during the course of re-hearing of the matter on the judicial side, in terms of the direction of the Apex Court in Inderpreet Singh Kahlon’s case (supra).
Secondly, the process of selection under reference (within the ambit of investigation of the Vigilance Department), can be described as fraudulent, tainted and arbitrary. The said processes of selection were clearly rifle and abounding with manipulations, carried out by a well planned scheme of deception, forgery and fraud; executed for showing favour, or for consideration. And as such, the entire processes of selection, to the premier executive posts, which were subject matter of investigation at the hands of the Vigilance Department, deserve to be set aside in their entirety.”
5. Mr. M.C. Berry, Addl. A.G. Punjab has placed on record affidavit dated 08.11.2012 of Shri Rakesh
