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Himachal Pradesh High Court · body

2007 DIGILAW 158 (HP)

SATISH KUMAR SANKHYAN v. STATE OF H. P.

2007-05-07

B.S.CHAUHAN

body2007
JUDGEMENT B.S. Chauhan, Member (A):- The applicant has filed this original application under Section 9 of the Administrative Tribunals Act, 1985 seeking mainly the following reliefs:- (i) That the respondents No.2 may be directed to recommend the names of candidates for 8 number of posts on the basis of interview held on 4.12.1993 and the panel/waiting list, prepared on the basis of that interview as the panel is alive for one year, the posts of TGT (Science Medical). (ii) That the respondents may be restrained from filling up the 8 number of posts on the basis of requisition dated 29.2.993 and also on the basis of screening test to be held on 8.5.1994. (iii) That the respondents may be directed not to make selection of TGT Science. Medical Solely on the basis of 100% oral interview, further direction may be given to select the candidates on the basis of proper procedure and criteria laid down by the Honble Supreme Court of India. (iv) That the respondents may be directed to take in to consideration the criteria of written test, experience, higher qualifications and other co curricular activities while making the selection for the posts of TGT Science Medical. 2. In brief the case of the applicant is that the applicant who was appointed as Trained Graduate Teacher Science Medical on tenure basis at Government Middle School, Doomehar District Bilaspur and is continuing there as such since, December 1,1990. Subsequently, names of eligible candidates were called through requisition sent to various employment exchanges for the post of Trained Graduate Teacher Science Medical. Thereafter, screening test was conducted during February, 1990 by respondent No.2 i.e. H.P. Public Service Commission in which the applicant successfully qualified the same and appeared in personal interview. On the declaration of result the name of the applicant was not recommended for appointment and as many as 38 candidates were initially given appointment during May, 1990 and, thereafter, in September/October, 1990. Respondent No.1 again gave appointment to six more candidates from same panel as prepared by respondent No.2. However, the applicant was arbitrarily ignored inspite of best performance and screening test and personal/oral interview held subsequently. Respondent No.2 again conducted screening test on 15.10.1993 in which the applicant also appeared the qualified the same and appeared for personal/oral interview on 4.2.1993. Respondent No.1 again gave appointment to six more candidates from same panel as prepared by respondent No.2. However, the applicant was arbitrarily ignored inspite of best performance and screening test and personal/oral interview held subsequently. Respondent No.2 again conducted screening test on 15.10.1993 in which the applicant also appeared the qualified the same and appeared for personal/oral interview on 4.2.1993. However this time again respondent No.2 arbitrarily without following any procedure did not recommend and name of the applicant. Subsequently, eight posts of Trained Graduate Teacher (Science Medical) were further advertised and screening test was held on 8.5.1994 in which the applicant again appeared and was declared successful and also appeared in the interview held thereafter on 28.7.1994. Even this time his name was not recommended for appointment. The main grievance of the applicant is that the interview/oral test which was held by respondent No.2 and the recommendation was made on the basis of giving 1QP% weightage to the interview. The contention of the applicant is that the merit list should have been prepared on the basis of joint performance based on the screening test followed by interview rather than only interview conducted by respondent No.2. The applicant has mentioned in the original application that requisition for 8 posts was sent to H.P. Public Service Commission on the basis of requisition dated 29.12.1993 whereas these 8 posts should have been filled up on the basis of selection process for which interviews were held on 14.12.1993 and the panel/waiting list prepared on the basis of that interview was alive for a period of one year and as such there was no need for holding fresh screening test and interview for these 8 posts. 3. Reply was filed by respondent No.1, the claim of the applicant was disputed by respondent No.1 in the reply on the ground that this selection process was undertaken by expert body like the Public Service Commission who is the best judge to form the criteria for selection of candidates in accordance with set procedure and rules in this regard. It is further submitted in the reply that the applicant appeared in the entire selection process and thereafter, since his name was not recommended as so called best performance of the applicant does not if so facto entitle him to selection for appointment. It is further submitted in the reply that the applicant appeared in the entire selection process and thereafter, since his name was not recommended as so called best performance of the applicant does not if so facto entitle him to selection for appointment. The allegations of the applicant that the selection was made on extraneous consideration is malicious and baseless. It is further mentioned in the reply that appointment to the candidates referred to in the original application was given on the basis of recommendation given by respondent No.2. In view of this, the claim of the applicant is not maintainable as there is no cause of action in view of the fact that the selection had been made by the expert body by adopting set and established procedure and norms for all the candidates including the applicant. 4. Reply was filed by respondent No.2 i.e. H.P. Public Service Commission in which it is admitted position that the applicant appeared in the three screening test mentioned by him in the original application and he qualified ail the three screening tests. He also appeared in the interview as stated by him in the original application. It is reflected in the reply that on completion of selection process the suitable candidates based on merit drawn on the basis of their performance in the interview were recommended for appointment in accordance with the selection process keeping in view the Recruitment and Promotion Rules for such selection. It has been clarified in the reply that fresh requisition for 8 more posts of Trained Graduate Teacher (Science Medical) was received by the replying respondents on 3.12.1993 and for these posts fresh on 29.12.1993 screening test was held on 8.5.1994. Accordingly, the contention of the applicant that these 8 posts should have been filled up from earlier penal is not tenable. The Commission advertises/notifies vacancies from requisition to requisition and prepares no panel for future vacancies. This practice is being followed in order to ensure fair channel to those who requisition. The interview Board taking in to consideration the academic carrier of the candidates, extra curricular activities, teaching experience, personality, general awareness, conceptual approach, expression and articulation to judge his suitability for the post proceeded with the interview/oral test. It is incorrect to say that there are no guidelines for selection of candidates. The interview Board taking in to consideration the academic carrier of the candidates, extra curricular activities, teaching experience, personality, general awareness, conceptual approach, expression and articulation to judge his suitability for the post proceeded with the interview/oral test. It is incorrect to say that there are no guidelines for selection of candidates. The final selection of candidates was made on the basis of performance of the candidates who appeared before the interview Board however, the selection is purely on merit without any possibility of arbitrariness in the same. The screening test was held with a view to reduce the number of candidates and the same was only qualifying in nature not to be counted in over all of merit for final selection. The process of screening test is held only to short list number of candidates to be called for interview. The achievement in the screening test is not taker? in to account for final selection. The final selection is made on the basis of performance of the candidates before the interview board keeping in view the criteria as referred to earlier. It is also mentioned in the reply that the applicant participated in the entire selection process and only, thereafter when his name was not found in the list of successful candidates, he filed the present original application. 5. I have heard the learned counsel for the applicant and the learned Deputy Advocate General for respondent No.1 and Mr. D.K. Khanna, Advocate for respondent No.2 and have gone through the pleadings. 6.The learned counsel for the applicant argued that he had participated in the entire selection process from screening test to interview in his name was not recommended by respondent No.2 for appointment. The main grievance of the applicant as stated by the learned counsel for the applicant is that the selection was made purely on the basis of interview and no weightage was given to the written/screening test which was only qualifying in nature. He pleaded further that this processes of giving 100% weight age to the interview is not legal. In support of his contention he cited the following case law:- (i) AIR 1973 SC 930, Jankit Prasad Parimoo & Ors. Vs. State of Jammu & Kashmir & Ors. (ii) 1981 SLJ Vol. (II)-651, Ajay Hasia etc. Vs. Khalid Mujib Sehravardi and others, (iii) AIR 1995 SC P-1088 Madan Lai and Ors. Vs. In support of his contention he cited the following case law:- (i) AIR 1973 SC 930, Jankit Prasad Parimoo & Ors. Vs. State of Jammu & Kashmir & Ors. (ii) 1981 SLJ Vol. (II)-651, Ajay Hasia etc. Vs. Khalid Mujib Sehravardi and others, (iii) AIR 1995 SC P-1088 Madan Lai and Ors. Vs. State of Jammu and Kashmir and others. The main attack of the learned counsel for the applicant in this selection process is that the final selection was made purely on the basis of interview held by respondent No.2 without giving any weightage to the performance in the written test. The learned counsel for respondent No.2 pleaded that selection process was as per notified terms and conditions and as per the Recruitment and Promotion Rules. The learned counsel for respondent No.2 argued that the applicant participated in the entire selection process and on declaration of result when he did not Tinu hio name in the list of successful candidates he filed the present original application. The contention of the learned counsel for respondent No.2 was that since he participated in the selection piucesa ho is estopped from challenging the same. In addition to this the learned counsel for respondent No.2 contended that the selected candidates have not been made party in this original application and to that extent the applicant can not claim the present relief against them without impleading them as a party, since they would be necessary party in this case. In support of his contention he cited the following case law:- (i) 1979 SLJ-170 Swara Lata Vs. Union of India and Ors. (ii). 1998 SLJ-253, AIR 1998 SC -331 Arun Tiwari and others Vs. Zila Nabsavu Shikshak Sangh and others etc. iii. AIR 1995 SC-1088 Madan Lal and anthers Vs. State of Jammu and Kashmir and others, iv. 1994(1) SLJ-187 Anazar Ahmed Versus State of Bihar & Ors. In addition to this, the learned counsel for the respondent No.2 also cited Shimla law Cases 1998(2) titled as Bhajan Pass Kaith Vs. H.P. Public Service Commission and another. The learned Deputy Advocate General referred to judgment of this Tribunal in case of OA-68/99 Anupma Sharma Vs. State of HP. and others in which the similar issue was decided by this Tribunal and pleaded that since, the applicant participated in the selection process and, as such, is estopped from filing the present original application. 7. The learned Deputy Advocate General referred to judgment of this Tribunal in case of OA-68/99 Anupma Sharma Vs. State of HP. and others in which the similar issue was decided by this Tribunal and pleaded that since, the applicant participated in the selection process and, as such, is estopped from filing the present original application. 7. The only dispute in this case is that the applicant who participated in the entire selection process of the Trained Graduate Teacher (Science Medical) which was conducted by respondent No.2/ as referred to earlier was not recommended for appointment despite being meritorious. The main challenge of the applicant is that in the entire selection process the selection criteria was only the interview and no weightage was given to the merit obtained in the written/screening test which was only qualifying in nature and final merit was determined on the basis performance in the interview. It is admitted position that the application participated in the selection process and qualified the three written tests held as well as appeared before the interview board each time. However, his name was not recommended for appointment as a result thereof he has challenged the selection and appointment of other selected candidates. It is matter of record that he has not impleaded these selected candidates as party in this original application. The learned counsel for the applicant stated that during the arguments that they could not be made as party as the selection process had not been finalised by then and their names were not known at the time filing of this original application. It is accepted position that the screening test was held only to short list the candidates and no weightage was given in the final selection to the performance in written test as the same was only qualifying in nature. Case Law cited by the learned counsel for respondent No.2 is1994 (1) SLJ-187 Anazar Ahmed Versus State of Bihar & Ors. In which it has been held that the question of weightage to be attached to viva voce would not arise where the selection is to be made on the basis of interview only. 8. It is well settled that courts can not interfere the policy of the State government for recruitment unless arbitrariness is alleged and proved as held in State of Orissa and others Vs. 8. It is well settled that courts can not interfere the policy of the State government for recruitment unless arbitrariness is alleged and proved as held in State of Orissa and others Vs. Bhikarri Charan Khuntia and others, 2004 SCC (L&S) 188." In addition to this in D. Prijat De Vs. Dr. Amarendra Kumar Samaddar Chowdhury and Ors. (Calcutta High Court) 2004(3) SLR 211 which have been referred and relied in the order of this Tribunal while deciding original application No.68/99 decided on 17.5.2005 as referred to above. Relevant part of the order is reproduced as under. 9. "It has been observed that where there is a recommendation of an expert body, such recommendation should not be interfered with by the court, unless a very strong case has been made out of unfairness and partisanship. In the case in hand no such case is made out. The Court/Tribunal cannot sit as an appellate court and quash the selection by itself scrutinizing the comparative merits of the candidates." 10. The contention of the learned counsel for the applicant is not tenable to the extent that no weightage was given to the marks obtained in the screening test as the same was only qualifying in nature the in case law 1994 (1) Vol. 51 SLJ p-187 cited by the learned counsel for respondent No.2 relevant and applicable to this case as the final selection was to be .made on the basis of interview only. Case Law cited by learned counsel for the applicant is not applicable to facts and circumstance of the case. The applicant participated in the entire selection process and, as per, law cited by the learned counsel for respondents No.2 he is estopped from challenging the selection process. This issue has also been settled in judgment of the H.P. High Court in Bhjajjan Dass Kaith Vs. H.P. Public Service Commission and another 1998(2) SLC-252 where it has been held that if the applicant had participated in the selection process he has no locus standi to challenge such selection as he had already appeared in the test and failed. 10. In view of this position, the claim of the applicant is not maintainable, as he is not legally entitled to challenge the selection process after having participated in the same. In addition to this it is also held by this Tribunal in OA-68/99 titled as Anupma Sharma Vs. 10. In view of this position, the claim of the applicant is not maintainable, as he is not legally entitled to challenge the selection process after having participated in the same. In addition to this it is also held by this Tribunal in OA-68/99 titled as Anupma Sharma Vs. H.P. Public Service Commission and State in which it was decided that if the applicant has not impleaded the selected/appointed persons as party their selection/appointment could not be challenged or quashed at their back. In case law AIR 1998 SC 331. Arun Tiwari and others Vs. Zila Mansan Siksa Sangh and others. Similar legal issue has been settled by the Honble Apex Court. 11. In view of the above position of law as decided by the Honble Supreme Court, H.P. High Court, and this Tribunal, the applicant had challenged the recruitment process and the selection of selected candidates, without impleading them as party to the proceedings. 12. Keeping in view the above position, the claim of the applicant is not only devoid of merit but also suffers from legal requirement of non-joinder of necessary party, the candidates selected/appointed in preference to the applicant. 13. For the reasons stated above, this original application is dismissed with no order as to costs.