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2003 DIGILAW 94 (HP)

CHATTER SINGH v. STATE OF H. P.

2003-05-02

NARINDER SINGH THAKUR, V.K.BHATNAGAR

body2003
JUDGMENT Honble Mr. Narinder Thakur, Vice Chairman: The applicant has prayed for quashing the impugned order of selection and appointment whereby the respondent department has selected and appointed respondent No. 7 and issuing directions to the respondents to select and appoint the applicant against the post of Vidya Upasak on the basis of merit, with all consequential benefits, and also for quashing the H.P. Gram Vidya Upasak Yojana-2001 to the extent to allocates marks for ST/Handicapped person as it will bring about undue un-equilibrium in recruitment as there will be 100% induction of this person belonging to the categories of SC/handicapped. He is aggrieved by the impugned order of selection of the respondent No. 7 not being eligible on the date of submission of application and despite his appointment being held cancelled by the respondent, S.D.M. and B.P.E.O. the Pradhan is going to issue appointment letter arbitrary and illegally. 2. The facts to be noticed are that he as well as respondent No. 7 have applied far the Vidya Upasak in Govt. Primary School Khajuar, under the primary Education Officer, Sataum and under Gram panchayat Kamraon. The applicant also belongs to the same Gram Panchayat, June 20, 2002 was the last date for submission of application alongwith the copies of documents viz-a-viz educational qualifications certificates duly issued by the competent authorities. The respondent No. 7 was given marks for B.A., wrongly as he did not posses this qualification on the date of submission of application as per the directions contained in the letter calling for applications dated June 7, 2002 (Anneuxre-A-1 and A-2), This applicant made an application to the Principal, S.G.G.S. Govt. College on august 6, 2002 (Annexure A/3 as to when the certificates reached in College with regard to the B.A. and it was informed that the certificates reached on June 22, 2002 and as the last date for submission of application alongwith documents was June 20, 2002 as such the respondents No. 7 could not have annexed the certificate on June 20, 2002. However, he by manipulating record submitted his certificate on a later date and thus played fraud with every one. It is further stated that when this fact was brought to the notice of SDM and B.P.O. they promptly issued letters to the Pradhan to cancel appointment of respondent No. 7 on August 5, 2002 (Annexure-A/4) and August 8. However, he by manipulating record submitted his certificate on a later date and thus played fraud with every one. It is further stated that when this fact was brought to the notice of SDM and B.P.O. they promptly issued letters to the Pradhan to cancel appointment of respondent No. 7 on August 5, 2002 (Annexure-A/4) and August 8. 2002 (Annexure-A/5) and appoint the next candidates, i.e. the applicant. 3. The applicant alleges that the Pradhan is adamant to issue appointment letter to respondent No. 7 being his party man in ignorance of the directions of the SDM and B.P.O. 4. In the reply of respondent State it has been stated that the Selection Committee headed by SDO (Civil) as its Chairman and four other members Pradhan and Up-Pradhan of the concerned Panchayat, Block Primary Education Officer and Centre Head Teacher of the Centre concerned of the respective/Block scrutinized the applications received in response to the wide publicity and awarded the marks on the basis of documents submitted by the candidates as per the notification issued by the Govt. in this regard. On the basis of recommendation of the Selection Committee the candidate securing the higher marks has been appointed in the instant case, the applicant are the respondent No. 7 have obtain the marks as given below :- Marks Respondent No. 7 Marks +2 marks (actual percentage) 26.10 28.07 Graduate Certificate/Diploma 10 10 in Education 05 - Local Residence SC/ST/OBC - 0.5 Viva 05 8.5 5. Since the respondent No. 7 has secured 57.20 marks and the applicant 57.10 marks, therefore, the respondent No. 7 has been offered appointment on the recommendation of Selection Committee in accordance with the instructions. 6. In reply of the respondent No. 7 it has been alleged that the Selection has been made in accordance with the guidelines the last date for submission of application was June 20, 2002 and the respondents No. 7 submitted his application on June 19, 2002 and the result of Graduation was declared on June 18, 2002 and was published in the Gazetted Notification (R-7/A) Thus the result of the applicant was declared before submission of application. The respondent No. 7 has rightly been given marks for Graduation. Respondent No. 7 belongs to OBC. The respondent No. 7 has rightly been given marks for Graduation. Respondent No. 7 belongs to OBC. It is further stated that the respondent No. 7 has already submitted his application on June 19, 2002 alongwith the result of Graduation and as such he is entitled for the marks for Graduation. 7. The reliable contention of the learned Counsel for the respective parties have been noted and pleading and the record of the case perused carefully. 8. The only point involved for our consideration in the present case is that whether the respondent No. 7 possesses the requisite qualification on the cut-off date for submission of application or not and whether he was entitled for giving marks for the qualification which he did not possess on the cut of date. 9. Annexure-A/1 is the office order which stipulates that the application should reach in the Office of Block Primary Education Officer, Sataun on or before June 20,2002. Admittedly the respondent No. 7 has submitted his application on June 19, 2002. The condition No. 8 in Annexure-A/1 further stipulates that the application should be accompanied with the Age Proof Certificate, SC/ST/OBC/IRDP, Handicapped Certificate Education Certificate and Permanent Residence of Panchayat Certificate issued by the competent authority. Annexure-A/2 further clarified that the benefit of these categories will be given only if the application is accompanied by these certificate. Annexure-A/3 with the Original Application is an application made by the applicant the date of certificate of B.Sc-111 reached in the College. An endorsement made by the Principal on the application states that the detailed Marks Sheets of B.Sc-111 for 2001-2002 were received from H.P. University, Shimla (by post) on June 22, 2002 vide diary No. 809. 10. Annexure-A/4 with the Original Application is a memorandum dated August 5, 2002 issued by the Block Primary Education Officer, Sataun to the pradhan, Gram Panchayat Kamaraon asking him to keep the order of appointment of Vidya Upasak to the Government Primary School Khajair in abeyance till further order as there was some mistaken selection. He has further sought further instructions from the SDM (Urban) Paonta Sahib in the same memorandum vide Anenxure-A/5 with the Original Application, the SDM (Urban) Paonta Sahib has issued a memorandum on August 8, 2002 in response to A-4 and directed the Block Primary Education Sataun to rectify the mistake in the selection of Shri Suresh Chand (respondent No. 7) in Govt. Primary School Khajiar and in his place another applicant in second place in the merit list be given appointment and the concerned Panchayat be also informed accordingly in this regard. He further directed to call for explanation from the concerned Clerk who has added the marks wrongly. 11. Looking to the contention of the learned Counsel for respondent No. 7 that he has placed certificates on record although his application submitted by him in the record, more particularly with regard to the application submitted by respondent No. 7 was called for stand perused. On our perusal the contention of learned Counsel was found to be wrong as the applicant has annexed an mention only B.Sc.-11 year certificate alongwith other documents and no certificate or result sheet as alleged was found annexed with the application or mentioned in the application. 12. The respondents State Government has formulated HP. Vidya Upasak Yojana 2001 for selection/appointment of Vidya Upasak with under lying rational task of universalisation of elementary education is gigantic keeping in view the tough geographical condition in Himachal Pradesh and the non-availability of trained teaching man power. The trained teacher available in the urban and other developed area are not willing to serve in the remote places as a result of which most of our schools in such areas are without teachers. The following procedure has been laid down for selection/appointment of the candidates: Selection Committees; Chairman SDO under whose jurisdiction the area falls. Members: (i) Pradhan Gram Panchayat concerned (ii) Up-Pradhan concerned, (iii) BPEO concerned Block (iv) CUT concerned. Interview Marks (i) 10+2 marks (actual percentage secured to be calculated out of 50 marks (ii) Graduate and above. 10 marks (iii) Certificate/Diploma at least one year duration in any Teaching Course from the recognized board/University 05 marks (iv) Local resident within the Panchayat 05 marks (v) SC/ST 05 marks (vi) OBC 05 marks (vii) Physical Handicapped/disabled. 03 marks (viii) IRDP families 02 marks (ix) Viva 10 marks 13. From the above, it is amply clear that the marks are to be given, for different heads subject to production of certificate of the same from the competent authority. 03 marks (viii) IRDP families 02 marks (ix) Viva 10 marks 13. From the above, it is amply clear that the marks are to be given, for different heads subject to production of certificate of the same from the competent authority. On perusal of record and pleadings, we have found that the respondent No. 7 neither possesses the qualification of Graduation on the last date of submission of application nor did he annexed the certificate alongwith his application submitted by him on June 19, 2002. As such he cannot be held entitled for the marks under the head of Graduation and above. The tenor of the memorandum dated August 8, 2002 issued by SDM (Urban) Paonta Shahib (A-5) also clearly goes to indicate the some Clerk inconviance has either placed the certificate of the respondent No. 7 or added mark as for the same wrongly. Since, the selection is to be done by the duly Constituted Committee as per the details given above. It is beyond the competency of any Clerk to add any marks later on. 14. The learned Counsel for respondent No. 7 has drawn our intention to a case law reported in 1990(1) SCC 305 titled Dalpat Abasaheb Solunks v. Dr. B.S. Mahajan, in which the Honble Apex Court has held with regard to selection of a candidate in service that the Court has no such expertise the decision of Selection Committee can be interfered with only on limited grounds, such as illegality or patent material/irregularity in the Constitution of the Committee or its procedure vitiating the selection, or proved mala fide affecting the selection etc. This judgment of the Honble Apex Court does not help the respondent No. 7. It rather goes against him. The procedure of Selection Committee has been vitiated on account of giving wrong marks to respondent No. 7. 15. It is also noted that the reply of respondents State is stereotyped and did not explain any of the contention raised in the Original Application. The reply of the respondents State was also found contrary to record produce before us. In the reply the respondents State has justified the giving of marks of Graduation to respondent No. 7. it appear that the respondents State has prepared set from type reply in all the cases of Vidya Upasak which leaves much scope to explain various contention raised in the pleadings. 16. In the reply the respondents State has justified the giving of marks of Graduation to respondent No. 7. it appear that the respondents State has prepared set from type reply in all the cases of Vidya Upasak which leaves much scope to explain various contention raised in the pleadings. 16. The learned Counsel for the application has drawn our intention to law laid down by the Honble Apex Court in 2000(5) SCC 262 Bhupinder Pal Singh v. State of Punjab in which the Honble Apex Court with regard to the eligibility qualification on cut-off date has held as under :- "13. placing reliance on the decision of this court in Ashok Kumar v. Chander Shekhar, 1997(4) SCC 18 : 1997 SCC (L&S) 313, A.P. Public Service Commission B. Sarat Chandra 1990(2) SCC 669, District Collator and Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, 1990(3) SC 655, Rekha Chatturvedi v. University Rajasthan, 1993 Suppj.(3) SCC 168, M.V. Nair (Dr.) v. Union of India, 1993(2) SCC 429, Public Service Commission U.P. Allahabad v. Alapana, 1994(2) SCC 723 : JT 1994(1) SC 94 the High Court has held (1) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there is no cut-off date appointed by the Rules then such date as may be pointed out for the purpose in the advertisement calling for applications, (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by the several decisions of this Court and is therefore, well settled and hence cannot be found fault with. However, there are certain special feature of this case which need to be taken care of and justice be done by invoking the jurisdiction under Article 142 of the Constitution vested in this court so as to advance the cause of justice. 17. In view of the several decision of this Court relied by the High Court- and referred to hereinabove. 17. In view of the several decision of this Court relied by the High Court- and referred to hereinabove. It was expected of the State Government notifying the vacancies to have clearly laid down and stated the cut-off date by reference to which the applicants were required to satisfy their eligibility. This was not done. It was pointed out on behalf of several appellant/petitioner before this Court that he practise prevalent Punjab has been to determine the eligibility by reference to the date of interview and there are innumerable case wherein such candidates have been seeking employment as were not eligible on the date of making the applications or the last date appointed for receipt of the application but were in the process of acquiring eligibility qualification and did not acquire the same by the time they were allied for and appeared at the interview. Several such person have been appointed but not one has challenged their appointment as they have continued to be in the public employment. Such a loose practice though prevalent, cannot be allowed to continued and must be treated to have been put to an end. The reason is apparent. The application made by the candidates as were not qualified but were in the process of acquiring eligibility qualification would be difficult to be scrutinized and subjected to the process of approval or elimination and would be called to face interview but shall have to be returned blank if they fail to acquire requisite eligibility qualification by the time of interview. In our opinion the authorities of the State should be tide down to the principles governing the cut-off date of testing the eligibility qualifications on the principles deducible from the decided case of this Court and stated herein above which have now to be treated as the settled service jurisprudence. 18. The learned Counsel further drew our intention to the decision dated January 1, 2002 on the Division Tribunal in O.Q. No. 3366/2000 in case titled as Dr. Anita Padam v. State of H.P. in which this Tribunal as held as under :- "The learned Counsel for respondent No. 3 strongly argued that the petitioner has no locus standi to file the present Original Application. Anita Padam v. State of H.P. in which this Tribunal as held as under :- "The learned Counsel for respondent No. 3 strongly argued that the petitioner has no locus standi to file the present Original Application. The petitioner application was rejected by the Public Service Commission as she did not possess the requisite 3 years experience, till the last date (sic date) of the receipt of applications i.e. 1.9.2000 as such, her candidature was rejected by the Public Service Commission. Since she did not have requisite years teaching experience, she has no locus standi, to file the present petition, being in eligible for the post of Assistant Professor (Physiology). He referred to the judgment of Honble Apex Court 1997(2) SCC 148 D. Nagraj and others v. State of Karnataka and others in which it was held in para 7 : "7 It is well established that a person who is not aggrieved by the discrimination complained of cannot maintained a writ petition. There is no infringement of article 14 and 16 of the Constitution of India. The petition did not possesses the requisite application i.e. 3 years teaching experience till the last date of receipt of application i.e. 1.9.2000, as such, she cannot complained that the rules are contrary to the directions/regulation issued by Medical Council of India." 19. In view of the settled position of law we find memorandum issued by the S.D.M. (Urban) dated August 8, 2002 (A-5) and memorandum BREO Sataun dated August 5, 2002 (Annexure-A/4) is perfectly legal and direct respondent No. 6, Pradhan Gram Panchayat Kamaraon to issue appointment letter to the applicant being the next selected candidate in merit. These directions will be complied with within 10 days from this order. Original Application stands finally disposed of with no order as to costs.