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2004 DIGILAW 71 (PAT)

Vijay Kumar Jha v. Hira Lal Singh

2004-01-16

NAGENDRA RAI, R.S.GARG

body2004
Judgment Nagendra Rai and R.S.Garg JJ. 1. The controversy as to the seniority between Vijay Kumar Jha and Shri Hira Lal Singh has been bothering this Court time and again. Admittedly, both are employees of the Vidyalaya Sewa Board, which was earlier known as Education Service Commission. Vijay Kumar Jha will be hereinafter referred to as the appellant and Shri Hira Lal Singh will be referred to as respondent no. 4. Similarly the documents will be referred with reference to the annexures as given in C.W.J.C. No.1611 of 1995. 2. L.P.A. No. 135 of 1988 is directed against the judgment passed by the learned Single Judge in C.W.J.C. 1442 of 1983 filed by respondent no. 4 challenging the seniority of the appellant which was allowed on 13.7.1988 and the question of determination of seniority was remanded to the authority to be considered in the light of the observation made in the said judgment. 3. It appears that after remand a decision was taken by the Vidyalay Sewa Board (hereinafter referred to as the Board) and the appellant was treated as senior by order dated 17.2.1990, which has been challenged by respondent no. 4 by filing C.W.J.C. No. 1961 of 1990, which has been ordered to be heard along with L.P.A. No. 135 of 1988. Again the matter was reconsidered by the Board and the Board decided against the appellant by order dated 13.7.1993 which he challenged by filing C.W.J.C. No. 6963 of 1993. That was heard by a Division Bench and by order dated 18.1.1994, the matter was remanded to the Chairman of the Board to consider the question of seniority, which related at that time to the promotional post i.e. Section Officer and, thereafter, the Board confirmed the order dated 13.7.1993 declaring respondent no. 4 as senior, on the basis of which consequential order was passed on 1.12.1994, which has been challenged by the appellant by filing C.W.J.C. No. 1611 of 1995, which has also been listed along with L.P.A. No. 135 of 1988 and that is how the three cases have been heard together for disposal. 4. The undisputed facts are that on 7.11.1975, an advertisement was issued by the erstwhile Education Service Commission inviting applications for appointment to Class III and Class IV posts. For the said posts including the post of Lower Dvision Assistant, the last date for filing the application was 21.11.1975. 4. The undisputed facts are that on 7.11.1975, an advertisement was issued by the erstwhile Education Service Commission inviting applications for appointment to Class III and Class IV posts. For the said posts including the post of Lower Dvision Assistant, the last date for filing the application was 21.11.1975. The said advertisement clearly mentions that the weightage would be given to the persons having experience. In column 8 of the advertisement, it was mentioned that in support of experience, a certificate should be filed of the concerned Head of the Department. The appellant applied for the said post, whereas, respondent no. 4 applied for the post of Routine Clerk. His application was also treated as an application for the post of Lower Division Assistant. Copies of the advertisement and the applications filed by appellant and respondent no. 4 have been annexed as Annexures 1, 2 and 3, respectively to C.W.J.C. No. 1611 of 1995. 5. On 21.1.1976 vide Annexure 1, the Board laid down criteria for selection and some 80 marks were fixed for educational qualification, five marks for experience and 15 marks for interview. It was further provided therein that for experience of period of six months, one mark would be given. The appellant filed a certificate with regard to experience, whereas, respondent no. 4 did not file any such certificate. Process of selection started and appellant and respondent no. 4 both were allotted 73 marks. Admittedly, one mark was allotted to the appellant for experience. Thereafter, they were appointed in 1976. At that time, question of seniority was not finally decided. However, both of them were confirmed on the said post. In 1977, one Shiv Prakash Pandey, who was the Head Assistant was, repatriated to his parent department and the appellant was appointed in his place on the basis of his seniority. The said decision of that Board was challenged by respondent no. 4 by filing a representation. The said representation was rejected on 25.2.1983 and the appellant was treated as senior. Respondent no. 4 challenged the same by filing C.W.J.C. No. 1442 of 1983 and the learned Single Judge of this Court finally disposed of the matter by the judgment dated 13.7.1988. 4 by filing a representation. The said representation was rejected on 25.2.1983 and the appellant was treated as senior. Respondent no. 4 challenged the same by filing C.W.J.C. No. 1442 of 1983 and the learned Single Judge of this Court finally disposed of the matter by the judgment dated 13.7.1988. After having taken note of the terms and conditions of the criteria laid down, the learned Single Judge observed that one mark was allotted in the interview to the appellant for knowledge of typing, which was not requisite criteria in terms of the resolution (Annexure 4 to the writ application) and, accordingly, remanded the matter to the authority to consider the matter afresh on the basis of the relevant considerations and in accordance with law. A copy of the said judgment has been annexed as Annexure 11 to the writ petition, against which L.P.A. No. 135 of 1988 was filed. 6. Thereafter, the Board considered the matter and by order dated 24.2.1989 again held the appellant to be senior on the ground that he was given one mark on the basis of experience and not on the basis of the typing knowledge and the said decision was communicated to the parties by order dated 17.2.1990 (Annexure 14 to the writ petition). Respondent no. 4 filed a contempt application being M.J.C. No. 886 of 1990 as well as a being C.W.J.C. No. 1961 of 1990. The contempt application and the writ application were ordered to be placed after disposal of L.P.A. 135 of 1988. 7. Again the Board reconsidered the matter and decided against the appellant and declared respondent No. 4 to be senior and promoted him to the post of Section Officer by order dated 13.7.1993, which was challenged by the appellant in C.W.J.C. No. 6963 of 1993, which was finally disposed of by a Division Bench on 18.1.1994 (Annexure 16 of the writ petition). The Division Bench having taken note of the earlier order passed by the learned Single Judge and pendency of the appeal against the same and also taking note of the fact that the matter was contested one, directed the Chairman of the Board to pass speaking order after perusal of the entire materials and after giving an opportunity of hearing to both the parties. This Court further observed that it was not desirable to pass any order, which might affect the decision of the L.P.A. and C.W.J.C. No. 1861/1990. However, if a speaking order was passed by the Board, the same might assist the Court in arriving at a just conclusion in the aforesaid cases. Thereafter, the Chairman of the Board gave full opportunity to the parties and considered the matter in detail and by order dated 1.12.1994 decided the matter and held that respondent no. 4 is senior to the appellant. The said order has been annexed as Annexure 17 and has been challenged as stated above. 8. By final order passed by the Chairman, it has been held that the total marks which the appellant ought to have been allotted in the interview, were only 67 marks and not 73 marks. In arriving at the said conclusion, he has relied upon the fact that the grant of one mark to the appellant on the basis of experience was not justified as in terms of the criteria laid down by the Selection Committee, he did not possess the experience of six months. He also found that on the basis of educational qualification, he should have been allowed 15 marks for passing B.A. Part-I examination, which were allotted to other candidates similarly situated but he has been allotted 20 marks treating the same to be equivalent to I. Com., Second Division. 9. The case of the appellant is that though the criteria were fixed by the Selection Committee but the Committee had power to change or modify the same even during the process of interview and in this connection he referred to the annexures showing that not only in the case of the appellant but in the case of other candidates also relaxation was made in awarding the marks under the heading Experience and as such awarding of one mark for experience to him was fully justified and the view taken by the Chairman should not have excluded five marks as the qualification of Pre-University and B. Com. Part-I is equivalent to I. Com. 10. The case of the respondent-Board, on the other hand, is that no doubt the Selection Committee having once fixed the criteria, may modify or change the same but for that specific decision has to be taken. Part-I is equivalent to I. Com. 10. The case of the respondent-Board, on the other hand, is that no doubt the Selection Committee having once fixed the criteria, may modify or change the same but for that specific decision has to be taken. The Selection Committee cannot, during the process of interview in arbitrary and whimsical manner, change the criteria or award the marks contrary to the fixed criteria during the course of process of selection. It was also stated on their behalf that the persons having Pre-University, B. Com. Part-I Degree, have been allotted 15 marks, whereas, the appellant was shown favour by having been awarded 20 marks. 11. Admittedly, criteria have been fixed as is evident from the document appended with the records and according to which one mark was to be given for experience if the concerned person has experience of six months or more. Admittedly, at the time of filing application, no such certificate was filed by the appellant as even according to. his own case, the certificate was filed after the expiry of the period prescribed for filing the application. The aforesaid certificate, which has been annexed with the record, also shows that the experience is of four months only. In such a situation, on the basis of the said certificate and in terms of the said criteria, the appellant was not entitled to allotment of one mark. The question for consideration is as to whether any such relaxation can be made by the Selection Committee or not. 12. So far as the legal proposition is concerned, if a Committee has power to fix criteria then in a proper case on valid grounds, that criteria can be relaxed provided for that a specific decision is taken. The Committee cannot act arbitrarily and allot marks and then justify the same on the ground that the same should be taken to be an implied relaxation of the criteria. From the materials on the record, we do not find anything to show that at any point of time the Committee took decision that even for experience of less then six months, one mark is to be allotted. 13. In that view of the matter, the view taken by the Chairman of the Board is correct one. From the materials on the record, we do not find anything to show that at any point of time the Committee took decision that even for experience of less then six months, one mark is to be allotted. 13. In that view of the matter, the view taken by the Chairman of the Board is correct one. As we have agreed with the view taken by the Chairman of the Board that one mark should not have been allotted to the appellant and as such it is admitted position that he has secured one mark less than respondent no. 4. Therefore, it is not necessary to go into the other question as to whether he was entitled to 15 marks or 20 marks on the basis of educational qualification nor it is necessary to go into the question as to whether the documents filed by him subsequently were different from those produced by him at the time of interview. As the appellant has secured less marks than respondent no.4, the decision taken by the authorities to treat him as junior to respondent no. 4 does not suffer from any legal infirmity. 14. In the result, L.P.A. No. 135 of 1988 and C.W.J.C. No. 1611 of 1995 are dismissed. So far as the writ application being C.W.J.C. No. 1961 of 1990 filed by respondent no. 4 challenging the earlier order dated 17.2.1990 is concerned, that has become infructuous in view of the fact that the same was later on reviewed and corrected and it is held so.