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Madhya Pradesh High Court · body

2016 DIGILAW 1040 (MP)

Piyush Shukla v. M. P. Public Service Commission

2016-11-17

ROHIT ARYA

body2016
ORDER : Rohit Arya, J. 1. Petitioner; one of the candidates for the 11 posts (unreserved-08, SC-03) of Lecturer, Modern Office Management (Non Technical), published in advertisement date 3.10.2005, to be filled through Public Service Commission, approached this court challenging the selection of candidates including respondent No. 2 after having participated in the selection process and declared unsuccessful for the reason the petitioner secured only 23 marks as against 43 cut off marks, by filing this writ petition in the year 2008, on the grounds amongst others that (i) selection through interview was bad in law, (ii) petitioner was more qualified than respondent No. 2 and by virtue of his qualification of DCA, he should have been preferred to respondent No. 2, (iii) the petitioner has been subjected to discrimination violating his fundamental rights under Article 14/16 of the Constitution of India. Petitioner relied upon the judgments of the Hon'ble Supreme Court in Nishi Maghu vs. State of J. & K. AIR 1980 SC 1975 , Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487 and Director General, Indian Council for Agricultural Research vs. D. Sundara Raju, 2011 AIR SCW 2122. 2. Per contra, Shri R.D. Jain, learned senior counsel along with Shri S.K. Jain, learned counsel appearing for the PSC has made following submissions:- (i) Advertisement was issued by the PSC on 3.10.2005 and accordingly was published. Pursuant to selection concluded in the year 2008, appointments have been made by the department and selected candidates as such are working. More than 11 years period since then has passed by, therefore, at such distance of time, no effective relief can be granted to the petitioner as held by the Hon'ble Supreme Court in the case of Buddhi Nath Chaudhary vs. Abahi Kumar, (2001) 3 SCC 328 . (ii) The department of Technical Education and Training, State of M.P. since has not been arrayed as respondent, no writ, direction or order may be issued by this court, against selected candidates including respondent No. 2 working as Lecturer, Modern Office Management (Non Technical) in the aforesaid department. (iii) Once the petitioner has participated in the selection, he can not be permitted to assail the selection as such, as held by the Hon'ble Supreme Court in Madras Institute of Development Studies vs. K. Sivasubramaniyan, (2016) 1 SCC 454 . (iii) Once the petitioner has participated in the selection, he can not be permitted to assail the selection as such, as held by the Hon'ble Supreme Court in Madras Institute of Development Studies vs. K. Sivasubramaniyan, (2016) 1 SCC 454 . (iv) After selection of candidates, merit list was prepared as per marks obtained by individual candidate in descending order. The cut off marks was 34, whereas the petitioner has secured only 23 marks and respondent No. 2 has secured 169 marks. (v) Interview is one of the accepted mode of selection and appointment by the Hon'ble Supreme Court as held in the case of J.P. Kulshrestha vs. Allahabad University, (1980) 3 SCC 418 . (vi) The selection was fair and impartial. All the candidates were afforded equal opportunity. Bald allegations criticising the selection process is of no consequences and can not lead to complaint of fundamental right under Articles 14 and 16 of the Constitution. With the aforesaid submission, writ petition is sought to be dismissed. 3. Heard counsel for the parties. 4. Departmental of Technical Education and Training, Govt. of M.P. is not a party in the writ petition. As such even if the challenge made to the selection is upheld, no effective relief can be granted either against the selected candidates or in favour of the petitioner. 5. In all 258 candidates had applied. Eleven posts were to be filled up. Same process of selection was applicable to all the candidates with no exception. Petitioner having participated in the selection and thereafter declared fail having secured 23 marks much below than the cut off marks (43 marks), at a later stage can not be permitted to assail the selection on the ground the selection was bad in law, in view of judgment given in the case of Madras Institute of Development Studies (supra) Para 13 and 14 of the aforesaid judgment are as under:- "13. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of Experts. It was only after he was not selected for appointment that he turned around and challenged the very selection process. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of Experts. It was only after he was not selected for appointment that he turned around and challenged the very selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post. 14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra. 6. At this distance of time after more than 11 years, candidates declared successful have been appointed and are working for more than a decade including the respondent No. 2, hence, in the opinion of this court, neither selection so held can be declared as null and void and the appointments made can be declared as bad in law, as it shall be grossly inequitable and unjustified, as held in catena of decisions. Under similar circumstances, Hon'ble Supreme Court in Buddi Nath Chaudhary (supra) has held as under:- "6. The selected candidates, who have been appointed, are now in employment as Motor Vehicle Inspectors for over a decade. Now that they have worked in such posts for a long time, necessarily they would have acquired the requisite experience. Lack of experience, if any, at the time of recruitment is made good now. Therefore, the new exercise ordered by the High Court will only lead to anomalous results. Since we are disposing of these matters on equitable consideration, the learned counsel for the contesting respondents submitted that their cases for appointment should also be considered. It is not clear whether there is any vacancy for the post of Motor Vehicle Inspectors. If that is so, unless any one or more of the selected candidates are displaced, the cases of the contesting respondents cannot be considered. We think that such adjustment is not feasible for practical reasons. We have extended equitable considerations to such selected candidates who have worked in the post for a long period, but the contesting respondents do not come in that class. We think that such adjustment is not feasible for practical reasons. We have extended equitable considerations to such selected candidates who have worked in the post for a long period, but the contesting respondents do not come in that class. The effect of our conclusion is that appointments made long back pursuant to a selection need not be disturbed. Such a view can be derived from several decisions of this Court including the decisions in Ram Sarup vs. State of Haryana and Others, 1979 (1) SCC 168 ; District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another vs. M. Tripura Sundari Devi, 1990 (3) SCC 655 and H.C. Puttaswamy and Others vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and Others, 1991 Supp. (2) SCC 421. Therefore, we must let the matters lie where they are." 7. Hon'ble Supreme Court in the case of Ajay Hasia (supra), where selection was based on written test and viva-voice, did not approve 15% marks for oral interview as against 100 marks allotted to written test i.e. 33-? out of 150, but as the selection was done long back, Supreme Court did not disturb the appointments of selected candidates as cancellation of appointment after 18 months of selection would cause immense hardship to those selected candidates, in whose case the validity of selection could not otherwise be questioned and who had completed more than half academic year. 8. Similarly, in the case of Nishi Maghu (supra) while Hon'ble Supreme Court did not agree with allocation of 50 marks out of 150 marks for interview and 100 marks for written test but did not disturb the appointment already made. 9. Hon'ble Supreme Court in the case of J.P. Kulshrestha (supra) has upheld the mode of selection through interview. Para 10 of the aforesaid judgment is as under:- "10. We may dispel two mystique's before we debate the real issues. Did the selection committee act illegally in resorting to the interview process to pick out the best? We think not. 9. Hon'ble Supreme Court in the case of J.P. Kulshrestha (supra) has upheld the mode of selection through interview. Para 10 of the aforesaid judgment is as under:- "10. We may dispel two mystique's before we debate the real issues. Did the selection committee act illegally in resorting to the interview process to pick out the best? We think not. Any administrative or quasi-judicial body clothed with powers and left unfettered by procedures is free to devise its own pragmatic, flexible and functionally viable processes of transacting business subject, of course, to the basics of natural justice fair play in action, reasonableness in collecting decisional materials, avoidance of arbitrariness and extraneous considerations and otherwise keeping with in the leading strings of the law. We find no flaw in the methodology of interviews. Certainly, cases arise where the are of interviewing candidates deteriorates from strategy to stratagem and undetectable manipulation of results is achieved by remote control tactics masked as viva voce tests. This, if allowed, is surely a sabotage of the purity of proceedings, a subterfuge whereby legal means to reach illegal ends is achieved. So it is that courts insist, as the learned single Judge has, in this very case, suggested on recording of marks at interviews and other fair checks like guide-lines for marks and remarks about candidates and the like. If the court is skeptical, the record of the selection proceedings, including the notes regarding the interviews, may have to be made available. Interviews, as such, are not bad but polluting it to attain illegitimate ends is bad. Dr. Martin Luther King Jr. was right when be wrote: "So I have tried to make it clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or even more, to use moral means to preserve immoral ends." Therefore, no exception to the mode of selection through interview can be taken. 10. Reliance on the judgments in the case of Nishi Maghu (supra) and Ajay Hasia (supra) is not much of assistance to the petitioner, as in those cases, Hon'ble Supreme Court addressed on the question of excessive allocation of marks for interview where the selection process was inclusive of written test and interview as well as of other academic accreditation and conditions. 11. 11. This court can not loose sight of the fact that all the applicants were subjected to same process of selection. Merit list was prepared as per the marks obtained to the candidates. The petitioner having secured 23 marks as against cut off marks of 43 marks, no relief of the nature claimed can be granted in the facts and circumstances of the case. 12. Consequently, Writ Petition fails and is hereby dismissed.