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Harbhajan Singh v. The State Of Punjab And Anr
Structured Summary of the Opinion
Factual and Procedural Background
The petitioner obtained an LL.B. (First Division) from Punjab University in 1962, practised as an Advocate at Sangrur, joined the Army as a Commissioned Officer in July 1963 and was released on 1-8-1968. He resumed legal practice and later served as an Assistant District Attorney from September 1970 to May 1975. He appeared in a competitive examination conducted in December 1973 by the Punjab Public Service Commissioner for recruitment to the Punjab Civil Service (Judicial Branch). Ten posts had been advertised originally, with two reserved for released Armed Forces personnel.
The results of the examination were published in May 1974. The petitioner was placed No. 82 in the general merit list and No. 2 in the list of released Armed Forces personnel. Another candidate, Sampuran Singh (No. 34 in the general list), successfully claimed he also belonged to the released Armed Forces category in a writ petition; as a result the petitioner was relegated to third place in that reserved category. Subsequently, in addition to the ten originally advertised posts, fifteen more posts were filled from the non-Armed Forces category.
The petitioner sought appointment to a reserved post, contending that the increase in filled posts from the non-Armed Forces category should have led to a corresponding increase in reserved posts and that he should be appointed. The respondents relied on newer rules (Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab) Civil Services (Judicial Branch) Rules, 1975, as amended) which, inter alia, excluded persons who, after release from the Armed Forces, joined a civil service or civil post under the Union or a State from the definition of "released Indian Armed Forces Personnel."
The matter involved related litigation, including a writ petition by R. N. Moudgil (CWP No. 1464 of 1976) in which certain amendments were struck down; the present petition was heard in that contextual background.
Legal Issues Presented
- Whether the amended definition of "released Indian Armed Forces Personnel" (as introduced by the 1976 amendment to the 1975 Rules, specifically R. 3(iii)(cc)(ii)(b)) applied to the petitioner and thereby disqualified him from appointment because he had accepted employment as Assistant District Attorney between September 1970 and May 1975.
- Whether the amended rules, where they were made effectively retrospective by an amendment to R. 1(2), could be applied to candidates who had appeared in, and were eligible under, a competitive examination held under the earlier rules (i.e., whether candidates eligible under the rules in force at the time of the examination could be made ineligible by subsequent rule amendments occurring after the selection process had substantially progressed).
- Whether R. 3(iii)(cc)(ii)(b) (the exclusion clause) was, on its face or as applied to the petitioner, unreasonable or incapable of being given a reasonable interpretation consistent with the facts of pending selections.
Arguments of the Parties
State Government's Arguments
- The amended definition of "released Armed Forces Personnel" disentitles the petitioner from appointment because he accepted employment as Assistant District Attorney from September 1970 to May 1975, and the amended rule excludes persons who joined a civil service or civil post after release.
- The respondents relied on the 1975 Rules as amended (including amendments made by notifications and subsequent changes to effective dates) to assert that the petitioner no longer fell within the reserved category.
Petitioner's Arguments
- Clause (2) of the notification that purported to make the amended rules effective from 15-9-1969 had been struck down in related litigation; consequently, the amended rules could not be applied retrospectively to disqualify the petitioner who had passed the examination in December 1973 under the earlier rules.
- The amended definition did not, in terms, apply to persons who were not holding any civil post on the date the amended rules came into force or who joined such a post thereafter; thus the petitioner's acceptance of employment prior to the effective operation of the amended definition could not bar him.
- The petitioner contended that R. 3(iii)(cc) was aimed at and intended to exclude the three candidates who had passed the examination, and he argued that it should be struck down (i.e., challenged the validity and/or application of that clause).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R. N. Moudgil - C. W. P. No. 1464 of 1976 (referred to as "Moudgil's case") | Reference to earlier judicial decision in which certain amendments (Cls. (2) and (5) of the First Amendment Rules, 1976) were struck down; used as contextual precedent concerning effective date/amendments of rules. | The court observed that the direction it issued in the present case was in identical terms to the direction issued in Moudgil's case. The court also noted that the decision in Moudgil's case had become final because the Supreme Court dismissed an application for special leave to appeal. |
Court's Reasoning and Analysis
The court approached the question by construing the amended exclusion clause in light of the factual context: a competitive examination had been held under the old rules and appointments were pending when the amended rules were promulgated. The court reasoned that the rule-making authority must have been aware that selections under the earlier rules were in progress and that it would be unreasonable to attribute to the authority an intention to exclude candidates who were eligible under the rules in force at the time they were allowed to sit for the examination.
Key analytical steps:
- The court noted that the amendment did not change the qualifications of candidates and that it would be unreasonable to penalise candidates who accepted interim employment when the acceptance was not a bar under the rules prevailing at the time they were allowed to compete.
- The court undertook a contextual and purposive interpretation of the language "joined or join" in the exclusion clause (R. 3(iii)(cc)(ii)(b)). Rather than read the words as applying retroactively to anyone who had ever joined a civil post after release, the court read them to apply reasonably to (a) persons who were holding such a civil post on the date the amended rules came into force, and (b) persons who joined such a post after the amended rules came into force.
- On that interpretation, persons who had accepted employment prior to the effective operation of the amended rule — in particular, candidates who had been eligible under the earlier rules and who had participated in a selection process begun under those rules — were not to be treated as excluded by the amended provision.
- The court expressly stated that it did not need to decide the constitutional vires (validity) of R. 3(iii)(cc)(ii)(b) in light of its interpretation; however, it added an observation that the rule appeared unreasonable as a matter of policy because reservation for released Armed Forces personnel was for a limited period and it would be unjust to force such persons to remain unemployed or to forsake legitimately available interim employment on pain of losing eligibility to a superior post.
- The court confirmed with the Deputy Advocate General that there was no other obstacle (such as lack of vacancy) to the petitioner's appointment apart from the exclusion clause; on that assurance the court issued a direction for further consideration and appointment if the petitioner were found fit under the applicable rules (Rr. 4 and 5 of Part A of the Punjab Civil Service (Judicial Branch) Rules).
Holding and Implications
Core Ruling: The court directed that the respondents consider expeditiously the petitioner's fitness for appointment under Rr. 4 and 5 of Part A of the Punjab Civil Service (Judicial Branch) Rules and, if found fit, to take all necessary steps to appoint the petitioner to the Service.
Implications and direct effects:
- The petitioner was held not to be ineligible for appointment by reason of the amended exclusion clause (R. 3(iii)(cc)(ii)(b)) when that clause was construed in the factual context of a pending selection held under the earlier rules.
- The court did not decide the constitutional vires of R. 3(iii)(cc)(ii)(b); it expressly stated that it was unnecessary to reach that question for disposition of the petition, although it commented that the rule appeared unreasonable on policy grounds.
- The order required the respondents to consider and, if the petitioner was fit, appoint him; the direction is stated to be in identical terms to the direction previously issued in the case of R. N. Moudgil, the decision in which is indicated to have attained finality before the Supreme Court.
- No broader precedent was expressly framed beyond the court's interpretative conclusion applied to the facts; the decision's immediate consequence is the directed consideration and appointment of the petitioner where appropriate. The court did not purport to set out a general rule invalidating the exclusion clause for all cases, and it declined to decide the vires of the provision.
Order accordingly.
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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