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Himachal Pradesh High Court · body

2012 DIGILAW 689 (HP)

Namrata Shekhavat v. State of Himachal Pradesh

2012-10-08

DEV DARSHAN SUD

body2012
Judgment Dev Darshan Sud, J.(oral) 1. The petitioners challenge Annexure A-8 which is the result of the selected candidates for the post of Lecturers (College Cadre) in English. The petitioners were also interviewed for this post. It is undisputed before me that the service is governed by the Rules notified by the Government vide Notification No. EDN-A((Kha)3-5/99 on 29th November, 2001 and Recruitment and Promotion Rules for the post of Lecturer College Cadre (Class-I-Gazetted) in the Himachal Pradesh Education Department (hereinafter referred to as the Rules). The essential qualification and criteria has been mentioned in Annexure A-2, which is a copy of advertisement. There were 1304 posts of Lecturers College Cadre, Class-I Gazetted in the pay scale of `8000-375-13500. Clause 7 provides minimum educational and other qualification required for direct recruits, which governs the present case:- ESSENTIAL QUALIFICATIONS (i) A good academic record with at the least 55% marks of an equivalent of 55%. Wherever the grading system is followed in Master’s Degree level in the relevant subject from an Indian University or an equivalent degree from Foreign University recognizedby the Govt. of India. (ii) For the Lecturer in Fine Arts also i.e. Commercial Arts, Drawing and Painting and Sculpture, Master’s degree in Fine Arts having good academic record with 55% marks or wherever . (iii) A relaxation of 5% is provided from 55% to 50% at the Master’s decree for the SC-SC categories. (iv) A relaxation of 5% is provided from 55% to 50% of the marks to the Ph.D. Degree holder’s who have passed their master’s degree prior to Sept.1991. (v) “B” in the 7 point scale with letter grades O,A,B,C,D,E & F shall be regularized as equivalent of 55% wherever the grading system is followed (Seven point scale is displayed in the Foot Note) (vi) Candidates besides fulfilling the above qualifications should have cleared the eligibility test (NET) for Lecturers conducted by the UGC, SCIR or similar test accredited by the State Public Service Commission. (vii) NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D. Degree. However, the candidate who have completed M.Phil Degree or have submited Ph.D. thesis in the concerned subject upto 31.12.93, are exempted from appearing in the NET examination. Desirable qualifications: Knowledge of customs manners and dialect of Himachal Pradesh and suability for appointment in the peculiar conditions prevailing in the Pradesh. However, the candidate who have completed M.Phil Degree or have submited Ph.D. thesis in the concerned subject upto 31.12.93, are exempted from appearing in the NET examination. Desirable qualifications: Knowledge of customs manners and dialect of Himachal Pradesh and suability for appointment in the peculiar conditions prevailing in the Pradesh. “ The process of selection was 100% by direct recruitment. Clause 14 provides that a candidate must be a citizen of India. It is Clause 15 , which this Court is concerned with, as it has been invoked by the petitioners as having been violated by the respondents. It reads: 15. Selection for appointment: to post by direct recruitment. Selection for appointment to the post in the case of direct Recruitment shall be made on the basis of viva-voce test if Himachal Pradesh Public Service Commission or other recruiting authority as the case may be, so consider necessary or expedient by awrien Testor practical test, the standard/syllabus etc. of which be determined by the Commissioner/other recruiting authority as the case may be.” The post was advertised vide Annexure A-2 on 13.6.2005. Clause 5 of the advertisement provides that the candidates will be called for interview based on merit in the screening test in case where number of eligible candidates for the post(s) is inordinately large, the Commission may restrict candidates to be called for interview on the basis of higher qualification/experience or higher merit in qualifying degree certificate or by subjecting all eligible candidates to a screening test. The petitioners contend that (a) Clause 15 of the Rules and Clause 5 of the Advertisement are mandatory and have been violated by the respondents in letter and spirit as no screening test was held for these posts. In case candidates were subjected to this test, the petitioners were better qualification as they have obtained degree of Ph.D. in the related subject and would have qualified the screening test; the selected candidates who did not possess this qualification would not have been eligible to appear in the interview; (b) the selection is based on interview and no criteria has been specified either in the Rules framed by the Government on the basis of which the marks are to be allocated. It is the contention of the petitioners that in these circumstances, the entire selection is vitiated as being arbitrary and requires to be quashed and set aside. 2. It is the contention of the petitioners that in these circumstances, the entire selection is vitiated as being arbitrary and requires to be quashed and set aside. 2. The petition has been opposed by the Public Service Commission primarily on the ground that the petitioners have participated in the selection process and the interview and now they cannot turn around and challenge it. The second objection urged is that no relief can be granted to the petitioners without impleading all successful candidates who are necessary parties. 3. It is undisputed before me that at the interviews which were conducted between 13th September, 2005 to 17th September, 2005, 91 candidates applied for 29 advertised vacancies out of which only 53 were found eligible and provisionally admitted. The Commission recommended the names of 22 candidates in order of merit as reflected in Annexure R-1/3. The remaining seven posts which were reserved for General Ex-servicemen-03, SC-01, SC Ex-servicemen-01 and OBC-02 could not be filled up due to non-availability of eligible candidates of these categories. It is on these submissions that the legality of the selection is to be judged. 4. The result of the interview was called for by this Court. Petitioner No. 1 namely Namrata Shekhavat is at Sr. No. 23 securing 51 marks, petitioner No. 2 Surender Singh Rangra at Sr. No. 46 securing 38 marks, Khem Raj at Sr. No. 47 securing 36 marks, Dharmender Singh at Sr. No. 36 securing 40 marks, Vinod Kumar Chopra at Sr. No. 17 securing 52 marks. The last selected candidate in order of merit in the general category is Ms. Shipra Parmar Sood who has secured 53 marks. 5. Submission made on behalf of the petitioners is that they have been discriminated against by the respondent for the reason that two other subjects, for which interviews were held, i.e. Political Science and Public Administration screening test was held which course of conduct itself establishes that this test was mandatory. This is the general averment in this respect in the petition. This Court called for the record of the Public Service Commission. 6. It was submitted by Mr. D.K. Khanna, learned counsel appearing for the Public Service Commission that Political Science and Public Administration were two subjects in which the screening test was conducted. This is the general averment in this respect in the petition. This Court called for the record of the Public Service Commission. 6. It was submitted by Mr. D.K. Khanna, learned counsel appearing for the Public Service Commission that Political Science and Public Administration were two subjects in which the screening test was conducted. For Geography no screening test was conducted as there was one post reserved for OBC and 13 candidates had applied out of which only four were admitted and nine were rejected. For political science, there were 8 posts (5 General, 1 SC, 1 OBC and one General Ex-serviceman). 167 candidates had applied out of which nine were rejected. For Public Administration there were two posts and 58 candidates had applied. Learned counsel submits that since the number was inordinately large in Political Science and Public Administration, considering that there were 8 and 2 posts respectively and more than 21 times candidates had applied in Political Science and 29 times candidates in Public Administration it was in these circumstances that the screening test had to be conducted. 7. Learned counsel also submits that this condition in the advertisement is not mandatory but would only be attracted in case number of candidates is inordinately large. Learned counsel submits that since for the subject of English, there were 29 posts for which 91 candidates had applied out of which 53 candidates had been provisionally admitted for interview, the number of candidates could not be considered inordinately large considering the number of posts and number of candidates who were admitted to interview. I find force in the submissions made by learned counsel appearing for the respondent. 8. Rule 15 of the Rules does not provide that it will be mandatory for the Commission to hold a screening test. The method of recruitment is viva-voce or if the authority considers it necessary by way of written test or practical test, the standard and syllabus of which is to be determined by the Commission. There is no requirement of screening test prescribed by the Rules. Learned counsel appearing for the respondent also submits that the petition is not maintainable for the reason that the petitioners having been taken a chance before the interview board, they cannot turn around and challenge the selection. There is no requirement of screening test prescribed by the Rules. Learned counsel appearing for the respondent also submits that the petition is not maintainable for the reason that the petitioners having been taken a chance before the interview board, they cannot turn around and challenge the selection. Learned counsel relied upon the decision of the Division Bench of this Court in Ashu Jethi (Phull) and another vs. State ofH.P. and others, CWP No. 1301 of 209, decided on 7.1.2010. In that case also, this Court was called upon to adjudicate the legality (a) of recruiting the candidates on the basis of viva-voce; (b) of conducting a screening test. This Court after taking into consideration the Rules of the Business of the Himachal Pradesh Public Service Commission, 2007 and more especially Chapter III, which itself interalia provided for screening test and interview, held: ”A bare perusal of these rules makes it abundantly clear that the screening test is permissible in cases post(s) advertised by the Commission is inordinately large. It is further stipulated in the rules that the candidates declared successful/qualified in the written competent examination/screening test shall be called for interview/viva-voce test as per provision of Recruitment and Promotion Rules of the respective services and criteria fixed by the Commission. In case where selection is made by the interview of candidates qualified in thescreening test, the candidate scoring more marks in the interview shall be placed above the candidates scoring less mark in the interview. The selection process for filling up the posts of Lecturers on contract basis is that it can be made on the basis of viva-voce test or if considered necessary or expedient by a written test or practical test the standard/syllabus etc. of which will be determined by the concerned recruiting agency i.e. Himachal Pradesh Public Service Commission, Shimla.” The Court also ruled that the screening test at the time of the process of selection is neith e r ille gal nor unconstitutional. On the question of conducting the recrui tment on the b a sis of viva-voce test, the learned D i vision Be nch after taking in to consideration the decision in Dr. On the question of conducting the recrui tment on the b a sis of viva-voce test, the learned D i vision Be nch after taking in to consideration the decision in Dr. J.P. Kulshrestha and others vs. Chancellor, Allahabad University and others, (1980)3 SCC 418 , Lila Dhar vs. State of Rajasthan and others, (1981)4 SCC 159 , Ashok Kumar Yadav and others vs. State of Haryana 1985)4 SCC 417, Ashok alias Somanna Gowda and another vs. State of Karnataka by its Chief Secretary and others (1992)1 SCC 28 , D.V. Bakshi and others vs. Union of India and others (1993)3 SCC 663 , Kiran Gupta and others vs. State of U.P. and others (2000)7 SCC 719 , Inder Parkash Gupta vs. State of J&K and others (2004)6 SCC 786 , K.H. Siraj vs. High Court of Kerala and others (2006)6 SCC 395 , Nilangshu Bhusan Basu vs. Deb K. Sinha and others (2001)8 SCC 119 and Keshav Ram Pal vs. U.P. Higher Education Services Commission and others (1996)1 SCC 671 held th at: “The upshot of the above discussion is that: i) We would have precluded the petitioners from challenging the selection process after they availed the opportunity by appearing in the screening test and interview at the threshold. However, taking into consideration the importance of the issue involved, we have permi ed them to advance arguments on merits of the case; ii)It was open to the Commission as per the Recruitment and Promotion Rules and the Rules of Business of the Himachal Pradesh Public Service Commission, 2007 to hold the screening test to short list the candidates; iii)There is no illegality or unconstitutionally in the method adopted by the respondent-Commission in the present case to fill up the posts merely on the basis of interview. It always depend on the nature of the post. In the present case we are dealing with the post of Lecturer. The candidate’s aptitude, instinctual and academic achievements can only be adjudged when he is subjected to interview by the experts. In order to attract the best talent, the method of interview is proper and valid. A candidate may be extraordinary brilliant as far as academics are concerned, however, he may not prove to be a good teacher; iv)It is always open to the employer/Commission and selection board to adopt any of the selection method prescribed in their Recruitment and Promotion Rules. A candidate may be extraordinary brilliant as far as academics are concerned, however, he may not prove to be a good teacher; iv)It is always open to the employer/Commission and selection board to adopt any of the selection method prescribed in their Recruitment and Promotion Rules. It is an administrative act and the scope of judicial review is very limited; v)The marks allotted in the interview cannot be disproportionate/excessive if written examination is also prescribed. However, when the selection is based purely on performance of the candidate in the interview, this principle will not apply asheld by their Lordships in (1994)1 SCC 150 (supra). In the present case, 100 marks for interview cannot be termed illegal, arbitrary or unreasonable after holding the screening test; vi)It is not necessary as laid down by their Lordships in (1995)3 SCC 486 (supra) to allot marks under separate heads. The method evolved by the Commission as reflected in the Rules of Business of the Himachal Pradesh Public Service Commission, 2007 on consensus is valid.” In these circumstances, the decision of the Division Bench of this Court is binding in this case and I hold that there was no illegality in the s e lection process more especially when there is no material on record to justify th e submissions that the selection by way of viva-voc e is per se illegal. Learned counsel appearing for the respondents also places reliance on the decision of this Court in CWP No. 4120 and 4121 of 2009, titled Anay Kumar and another vs. State of H.P. and others & Pankaj Kumar and others vs. State of H.P. and others holding that: “3. We are afraid, none of these contentions can be appreciated for the reason that the petitioners had already qualified in the screening test and they appeared in the interview. As per selection process, written test is not mandatory. It is open to the Selection Board to conduct interview and select the candidate(s). So assuming for a moment that interview alone was conducted, the petitioners have been interviewed and they have been found to be not meritorious in the interview. The contentions raised by the petitioners could have been appreciated if the same were raised by the candidates, who did not qualify in the screening test or who had challenged the procedure of screening test. Petitioners do not belong to either category. The contentions raised by the petitioners could have been appreciated if the same were raised by the candidates, who did not qualify in the screening test or who had challenged the procedure of screening test. Petitioners do not belong to either category. Therefore, it is futile for this court to issue a writ at the instance of the candidates, who failed in the interview and interview being a method of selection as per procedure prescribed. Thus, there is no merit in the present writ petition and the same is accordingly dismissed, so also the pending application(s), if any. …” To similar effect is the decision of this Court in Mahesh Gupta and another vs. Surinder Singh and others, CWP(T) No. 8646 of 2008. 9. The petitioner having taken a chance in the interview and no allegation of malafide having been pleaded or proved, the petitioners now cannot turn around and challenge the selection proceedings process. 10. On the further submission by learned counsel appearing for the petitioner that UGC instructions are binding on the Public Service Commission, all that I need say is that these are not mandatory as held by this Court in CWP(T) No. 12329 of 2008 titled Rahul Bhardwaj vs. State of HP. This writ petition is therefore dismissed. No order as to costs.