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2014 DIGILAW 1182 (HP)

Amrit Lal Sharma v. State of H. P.

2014-09-03

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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Judgment : Tarlok Singh Chauhan, Judge The appellants, who were the writ petitioners, are aggrieved by the dismissal of the writ petition wherein they had challenged the selection of respondents No. 4 to 13 to the post of Lecturer (College Cadre) Class-I (Gazetted) which was filled up on the basis of an advertisement issued by the Himachal Pradesh Public Service Commission. The screening test was held on 16.1.2009 and thereafter the interviews were held between 16.3.2009 till 20.3.2009. 2. The learned counsel for the appellants has contested the appeal mainly on the ground that the constitution of the Selection Committee was not as per the notification issued by the University Grants Commission on Revision of Pay Scale, minimum qualification for appointments of teachers in University, College and Other measures for the Maintenance of Standards, 1998. He further contended that the Public Service Commission should have invited atleast three subject experts and associated the Himachal Pradesh University in the selection as mandated by the instructions issued by the UGC which instructions were binding upon the Public Service Commission. He also argued that the Principals and Head of the Department were necessarily required to be included in the Selection Committee. He lastly contended that respondent No.14 should not have been called as an expert for this selection because the respondents No. 4, 5, 6, 8 and 9 had remained her students and, therefore, favouritism was writ large. 3. At the outset, we may point out that these were the very submissions and grounds taken before the learned Single Judge, who after examining these issues threadbare held that the selection was to be conducted in accordance with the Recruitment and Promotion Rules which provided that the recruiting agency i.e. Himachal Pradesh Public Service Commission would constitute a Committee for selection. 4. It was further held that in terms of the Rules of Business of the Himachal Pradesh Public Service Commission, 2007, the Interview Board was required to be constituted by the Chairman and in addition to that experts and the departmental representatives comprising of as many Members as it may be deemed fit in view of the class of post for which the interviews is to be conducted were required to be associated. The Committee in this case had been constituted by the Public Service Commission and comprised of Sh. L.S. Thakur, Member, H.P. Public Service Commission, Dr. The Committee in this case had been constituted by the Public Service Commission and comprised of Sh. L.S. Thakur, Member, H.P. Public Service Commission, Dr. Saroj Ghosh, subject matter expert and Mrs. Manjula Sharma, Principal, Government College, Jukhala, who was the departmental nominee. The plea of the appellants that the Selection Committee should have been constituted as per the University Grants Commission was rejected in view of the detailed procedure provided for selection and appointments in the Recruitment and Promotion Rules framed under Article 309 of the Constitution of India. It was further held that it was for the State or the University to adopt the regulations framed by the University Grants Commission and the same were not ipso facto binding on the State Government. 5. Insofar as the plea regarding favouritism is concerned, the learned Single Judge repelled the said contention by observing that the mere fact that some of the selected candidates were the students of respondent No.14 would not debar her being an expert. The learned Single Judge relied upon the judgment of the Hon’ble Supreme Court in Dalpat Abasaheb Solunke and others vs. Dr. B.S. Mahajan and others (1990) 1 SCC 305 to conclude that mere fact that one of the members of the Selection Committee had been a guide to some of the candidates would not in itself vitiate the selection of such candidates. The learned Single Judge observed as follows: “8. Their Lordships of the Hon’ble Supreme Court in Dalpat Abasaheb Solunke and others versus Dr. B.S. Mahajan and others, (1990) 1 SCC 305 have held that inclusion of a person, who was a teacher of candidate could not vitiate the selection of such candidate. Their Lordships have held as under: 10. The fourth and the last ground given by the High Court to set aside the appointment of the appellant in CA No. 3507/89 is that the fourth and the fifth respondents to the Writ Petition were guides of the appellant when he was doing his M.Sc. by Research. We are unable to understand as to how the fact that they were his guides when the appellant was doing his M.Sc. would influence their decision in selecting him, or vitiate the selection made. They must have been guides to many who had appeared for the interview. by Research. We are unable to understand as to how the fact that they were his guides when the appellant was doing his M.Sc. would influence their decision in selecting him, or vitiate the selection made. They must have been guides to many who had appeared for the interview. As senior teachers in the Faculty in question, it is one of their duties to guide the students. In fact, very often the experts on the selection Committees have to be drawn from the teaching faculty and most of them have to interview candidates who were at one or the other time heir students. That cannot disqualify them from being the members of the Selection Committees. In fact, as stated by the 4th respondent in his affidavit before the High Court, even the 2nd respondent, the aggrieved candidate was also his student. Curiously enough the High Court has discarded the said fact by observing that in point of time, the appellant was closer to the 4th respondent as a student since the appellant was his student at a later date. It is not necessary to comment further on this reasoning.” 6. The appellants have only sought to challenge the judgment passed by the learned Single Judge on the grounds already taken and dealt with in detail by the learned Single Judge except that now reliance has been placed upon the judgment rendered by the learned Single Judge of the Karnataka High Court in Ravi vs. The Karnataka University, (2006) 6 Kar.L.J. 192 to canvass that the Hon’ble Supreme Court in Dalpat’s case had not laid down any law but had decided the case on the facts and circumstances of the case as it did not consider the earlier case law on this subject. He, in particular, placed reliance on paragraph 17 of the judgment which reads as under: “17. In the case of Dalpat Abasaheb Solunke, etc.etc. vs. Dr. B.S. Mahajan etc.etc. which is a case relied upon by the counsel for the respondent No.3, the law as settled by the Supreme Court in A.K.Karaipak’s case supra, which has been consistently followed, has not been considered. In the case of Dalpat Abasaheb Solunke, etc.etc. vs. Dr. B.S. Mahajan etc.etc. which is a case relied upon by the counsel for the respondent No.3, the law as settled by the Supreme Court in A.K.Karaipak’s case supra, which has been consistently followed, has not been considered. And therefore, it would have to be held, as dealing with the facts and circumstances, on the basis of which alone, the Supreme Court has decided the said case, as there is no reference to any of the earlier judgments of the Supreme Court, which have been referred to hereinabove. Accordingly, I hold that respondent No.2 ought to have disclosed the relationship as between himself and respondent No.3 and he ought to have recused himself from the panel during the time of the interview of respondent No.3. So also would have been the case in so far as the guide member of the petitioner is concerned, who was on the panel.” 7. We are afraid that we cannot agree with the view taken by the learned Single Judge of the Karnataka High Court. Firstly by no stretch of imagination could the decision in Dalpat Abasaheb Solunke case (supra) have been held to be per incuriam because this view has consistently been followed by not only various High Courts but even the Hon’ble Supreme Court itself particularly on the question posed before us. Moreover, judicial discipline and judicial decorum and propriety was required to be maintained while commenting on the decision of the Hon’ble Supreme Court. 8. We shall content ourselves by a quotation from the decision of the Hon’ble Supreme Court in Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Limited and others (1985) 1 SCC 260 which reads thus: “6…………We desire to add and as was said in Cassell & Co. Ltd. vs. Broome, 1972 AC 1027 we hope it will never be necessary for us to say so again that “in the hierarchical system of courts” which exists in our country, “it is necessary for each lower tier”, including the High Court, “to accept loyally the decisions of the higher tiers”. Ltd. vs. Broome, 1972 AC 1027 we hope it will never be necessary for us to say so again that “in the hierarchical system of courts” which exists in our country, “it is necessary for each lower tier”, including the High Court, “to accept loyally the decisions of the higher tiers”. “It is inevitable in hierarchical system of courts that there are decisions of the Supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary………… But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted”. The better wisdom of the court below must yield to the higher wisdom of the court above. That is the strength of the hierarchical judicial system. In Cassell & Co. Ltd. v. Broome, 1972 AC 1027, commenting on the Court of Appeal’s comment that Rookes vs. Barnard 1964 AC 1129 was rendered per incuriam, Lord Diplock observed: The Court of Appeal found themselves able to disregard the decision of this House in Rookes v. Bardnard by applying to it the label per incuriam. That label is relevant only to the right of an appellate court to decline to follow one of its own previous decisions, not to its right to disregard a decision of a higher appellate court or to the right of a Judge of the High Court to disregard a decision of the Court of Appeal. It is needless to add that in India under Article 141 of the Constitution the law declared by the Supreme Court shall be binding on all courts within the territory of India and under Article 144 all authorities, civil and judicial in the territory of India shall act in aid of the Supreme Court.” 9. It is settled law that the binding effect of a decision of the Hon’ble Supreme Court does not depend upon whether a particular argument was considered therein or not, but whether the point under reference was actually decided. We may with advantage refer here the decision of the Hon’ble Supreme Court dealing with the similar issue in Anil Kumar Neotia and others vs. Union of India and others (1988) 2 SCC 587 wherein it has been held as follows: 17. We may with advantage refer here the decision of the Hon’ble Supreme Court dealing with the similar issue in Anil Kumar Neotia and others vs. Union of India and others (1988) 2 SCC 587 wherein it has been held as follows: 17. Furthermore, we are of the opinion that the law as declared by this Court in Doypack Systems Pvt. Ltd. ( AIR 1988 SC 782 ) is binding on the petitioners and this' question is no longer res integra in view of Art. 141 of the Constitution. See the observations of this Court in M/s. Shenoy and Co. v. Commercial Tax Officer, Circle II Bangalore, (1985) 3 SCR 659 : ( AIR 1985 SC 621 ), where this Court observed that the judgment of this Court in Hansa Corporations' case reported in (1981) 1 SCR 823 : ( AIR 1981 SC 463 ) is binding on all concerned whether they were parties to the judgment or not. This Court further observed that to contend that the conclusion therein applied only to the parties before this Court was to destroy the efficacy and integrity of the judgment and to make the mandate of Art. 141 illusory. 18. In that view of the matter this question is no longer open for agitation by the petitioners. It is also no longer open to the petitioners to contend that certain points had not been urged and the effect of the judgment cannot be collaterally challenged. See in this connection the observations of this Court in T. Govindraja Mudaliar v. State of Tamil Nadu (1973)3 SCR 222 : ( AIR 1973 SC 974 ), where this Court at pp. 229 and 230 of the report observed as follows : "The argument of the appellants is that prior to the decision in Rustom Cavasjee Cooper's case ( AIR 1970 SC 564 ) it was not possible to challenge Chapter IV-A of the Act owing to the decision of this Court that Art. 19(1)(f) could not be invoked when a ease fell within Art. 31 and that was the reason why this Court in all the previous- decisions relating to the validity of Chapter IV-A proceeded on an examination of the argument' whether there was infringement of Art. 19(1)(g), and Cl. (f) of that Article could not possibly be invoked. We- -are unable to hold that there is much substance in this argument. (f) of that Article could not possibly be invoked. We- -are unable to hold that there is much substance in this argument. Bhanji, Munji and other decisions which followed it were based mainly on an examination of the inter-relationship between Art. 19(1)(f) and Art. 31(2). There is no question of any acquisition or requisition in Chap. IV-A of the Act. The relevant decision for the purpose of these cases was only the one given in Kochuni's case ( AIR 1960 SC 1080 ) after which no doubt was left that the authority of law seeking to deprive a person of his property otherwise than by way of acquisition or requisition was open to challenge on the ground that it constituted infringement of the fundamental rights guaranteed by Art. 19(1)(f). It was, therefore, open to those affected by the provisions of Chapter IV-A to have agitated before this Court the question which is being raised now based on the guarantee embodied in Art. 19(1)(f) which was never done. It is apparently too late in the day now to pursue this line of argument, in this connection we may refer to the observations of this Court in Mohd. Ayub Khan v. Commr. of Police Madras, (1965) 2 SCR 884 : ( AIR 1965 SC 1623 ) according to which even if certain aspects of a question were not brought to the notice of the court it would decline to enter upon re-examination of the question since the decision had been followed in other cases. In Smt. Somawanti v. State of Punjab, (1963) 2 SCR 774 : ( AIR 1963 SC 151 ) a contention was raised that in none of the decisions the argument advanced in that case that a law may be protecied from an attack under Art. 31(2) but it would be still open to challenge under Art. 19(1)(f), had been examined or considered. Therefore, the decision of the Court was invited in the light of that argument. This contention, however, was repelled by the following observations at page 794 : 'The binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided." 10. This contention, however, was repelled by the following observations at page 794 : 'The binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided." 10. In Om Prakash Verma and others vs. State of Andhra Pradesh and others (2010) 13 SCC 158 the Hon’ble Supreme Court reiterated the principle that a judgment of the Supreme Court is binding on all and it is not open to contend that the full facts had not been placed before it. The Hon’ble Supreme Court held as follows: “71. In Palitana Sugar Mills (P) Ltd. vs. State of Gujarat (2004) 12 SCC 645 this Court reiterated the principle that a judgment of this Court is binding on all and it is not open to contend that the full facts had not been placed before the Court. In this regard, para 62 of the judgment reads as follows: (SCC p. 665) “62. it is well settled that the judgments of this Court are binding on all the authorities under Article 141 of the Constitution and it is not open to any authority to ignore a binding judgment of this Court on the ground that the full facts had not been placed before this Court and/or the judgment of this Court in the earlier proceedings had only collaterally or incidentally decided the issues……” 11. The Hon’ble Supreme Court in Official Liquidator vs. Dayanand and others (2008) 10 SCC 1 has adversely commented upon the High Courts, who are ignoring the law laid down by the Hon’ble Supreme Court without any tangible reasons and held as follows: “78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the Larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the Larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia v. Administrator General of W.B. AIR 1960 SC 936 this Court observed: (AIR p. 941, para 19) “19….If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another’s decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Courts.” 90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.” 12. That apart the judgment in Ravi’s case (supra) proceeds on the premises that the real test to adjudge favouritism is not as to whether one of the member of the Selection Board was actually biased but whether there was any likelihood of bias which is not the fact situation here. It would be seen that the appellants had not even made a mention as to how many candidates in all who had participated in the selection had remained under the supervision of respondent No.14 and how many out of them had been selected. At this stage, it may be noted that this is not the case where the selection has been made by a single member Committee but by a Committee of three members in which apart from respondent No.14, the Principal of Govt. Degree College, Jukhala was also a subject matter expert, as she was earlier a lecturer in music and was also an expert in music (instrumental). The allegation of favouritism against only one member of the Selection Committee is too far fetched as there are no allegations that said member further in turn influenced the decision of the other co-members of the Selection Committee. 13. The respondent No.14 in her reply affidavit has clearly stated that she is an expert in the subject and is holding superior post in the Department of Music in Punjab University, Chandigarh and, therefore, she is invited to be a Member of various selecting authorities to assist them in making the best selection. She has further stated that because of the selection being on all India basis, it is never known before hand as to who would be the competing candidates. She has further stated that because of the selection being on all India basis, it is never known before hand as to who would be the competing candidates. The respondent No.14 has further claimed to be teaching the subject for a very long time in various capacities and during such duration of time large number of students have passed out the University/Colleges and, therefore, it is difficult for her to recollect the names of such candidates who may have been taught in the classes or she may have acted as a guide. 14. At this stage, we may refer with advantage to the learned Division Bench decision by the Punjab and Haryana High Court in Dr. Satyawati Rana vs. Dr. A.P.Singh Narang and others Vol. 143 2006 (2) Punjab Law Reporter, 182 wherein like in the present case the allegations of favouritism and undue influence had been made against the expert on the ground that at one stage she had remained the teacher of the selected candidates and the learned Court repelled the argument by relying upon the observations in Dalpat Abasaheb Solunke (supra) and held as follows: “10. We also observe that the finding with regard to the participation and the alleged influence of Professor Saroj Mehta appears to be rather far fetched. Admittedly, at one stage, she was a teacher of the appellant and the appellant had given her reference in her application. We, however, find that Professor Mehta was not a Member of the Selection Committee and was only one of the experts who had been chosen to assist the Selection Committee in the evaluation of the inter se merit of candidates. It has been argued by Mr. Sharma that as the appellant had given Dr. Saroj Mehta, as one of the references, it should be held that the relations between them were close. To our mind, even that being so, the undue influence could not have been exercised by her. It should also be borne in mind that on the day when the applications were filed, it was not known that Professor Saroj Mehta would be one of the internal Experts. We also cannot expect that the members of the Selection Committee, three eminent experts in their fields would be prone to any undue influence. It should also be borne in mind that on the day when the applications were filed, it was not known that Professor Saroj Mehta would be one of the internal Experts. We also cannot expect that the members of the Selection Committee, three eminent experts in their fields would be prone to any undue influence. In Dalpat Abasaheb Solunke’s case (supra) a similar argument had been repelled by observing (in paragraph 13) as under: “The fourth and the last ground given by the High Court to set aside the appointment of the appellant in C.A. No. 3507 of 1989 is that respondents No. 4 and 5 to the writ petition were guides of the appellant when he was doing his M.Sc. by Research. We are unable to understand as to how the fact that they were his guides when the appellant was doing his M.Sc. would influence their decision in selecting him or vitiate the selection made. They must have been guides to many who had appeared for the interview. As senior teachers in the faculty in question, it is one of their duties to guide the students. In fact, very often the experts on the Selection Committees have to be drawn from the teaching faculty and most of them have to interview candidates who were at one or the other time their students. That cannot disqualify them from being the members of the Selection Committees. In fact, as stated by respondent No.4 in his affidavit before the High Court, even respondent No.2, the aggrieved candidate was also his student. Curiously through the High Court has discarded the said fact by observing that in point of time, the appellant was closer to respondent 4 as a student since the appellant was his student at a later date. It is not necessary to comment further on this reasoning.” 11. The findings of the learned Single Judge with regard to the influence exercised by Professor Saroj Mehta must also be repelled.” 15. The Hon’ble Supreme Court in M.V.Thimmaiah and others vs. Union Public Service Commission and others (2008) 2 SCC 119 has clearly laid down that the people are prone to make allegations of bias and malafide, but the Courts owe a duty to scrutinise the allegations meticulously because the person who is making the allegations himself has a vested right. 16. The Hon’ble Supreme Court in M.V.Thimmaiah and others vs. Union Public Service Commission and others (2008) 2 SCC 119 has clearly laid down that the people are prone to make allegations of bias and malafide, but the Courts owe a duty to scrutinise the allegations meticulously because the person who is making the allegations himself has a vested right. 16. Coming back to the challenge to the selection, it is well settled law that a candidate after remaining unsuccessful cannot challenge the selection process and the constitution of the Selection Committee. If the petitioners entertained any doubts as to the fairness of the members of the Selection Committee, they ought to have objected then. The petitioners however having proceeded with the interviews before Selection Committee to which the objections have now been taken, cannot be permitted to object after remaining unsuccessful (Refer: Madan Lal and others vs. State of Jammu & Kashmir and others AIR 1995 SC 1088 , Amlan Jyoti Borooah vs. State of Assam and others (2009) 3 SCC 227 and Manish Kumar Shahi vs. State of Bihar and others (2010) 12 SCC 576 ). 17. The upshot of the aforesaid discussion is that there is no merit in the appeal and the same is accordingly dismissed, so also the pending application(s), if any. The parties are left to bear their own costs.