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Himachal Pradesh High Court · body

2016 DIGILAW 2324 (HP)

Amit Singh v. State of H. P.

2016-11-03

MANSOOR AHMAD MIR, SANDEEP SHARMA

body2016
Sandeep Sharma, J. By way of present Civil Writ Petition filed under Article 226 of the Constitution of India, the petitioner has prayed for the following relief:- “(i) That selection and appointment of private respondent after summoning the appointment letter from the respondents may very kindly be quashed and set aside with direction to the respondents to reconsider the case of the petitioner by allowing him marks in consonance with annexure P-1 and select and appoint him as Drawing Master in Government Senior Secondary School, Haripur-Khol, Tehsil Paonta Sahib, District Sirmaur, H.P.” 2. Briefly stated facts as emerged from the record are that pursuant to notice issued by the School Management Committee (for short ‘SMC’), Government Senior Secondary School, Haripur-Khol, Tehsil Paonta Sahib, District Sirmaur, H.P, petitioner alongwith other candidates including respondent No.6 applied for the post of Drawing Master through ‘SMC’. It also emerge from the record that the Deputy Director, Elementary Education granted permission to ‘SMC’ for appointing Drawing Master vide communication dated 15.11.2014 in above mentioned school. The ‘SMC’ after receipt of applications, conducted interviews on 2.11.2015, wherein respondent No.6 was declared selected and accordingly, he was engaged as Drawing Master in the school referred hereinabove. Since, present petitioner was not selected pursuant to interview aforesaid, he applied for certain information under Right to Information Act (for short ’RTI’). The respondents, pursuant to request having been made by the petitioner under RTI, supplied photocopy of result sheet prepared by the selection committee at the time of interview. As per the petitioner, there are cuttings with respect to the marks of interview, especially private respondent No.6, who has been declared selected and as such, entire selection process deserve to be quashed and set-aside. 3. Petitioner has further alleged that perusal of diploma certificate (annexure P-3) annexed by respondent No.6 alongwith his application, clearly suggests that same is not in consonance with the qualification, as prescribed in annexure P-1. Petitioner further alleged that respondent No.6 has allegedly passed diploma of Art & Crafts, which is not the qualification as prescribed in annexure P-1. 4. Mr. Ajay Sharma, learned counsel representing the petitioner, vehemently argued that bare perusal of the mark sheets, clearly suggests that the authorities concerned have tampered with the record solely with a view to offer appointment to respondent No.6 by ignoring other meritorious candidates including the petitioner. 4. Mr. Ajay Sharma, learned counsel representing the petitioner, vehemently argued that bare perusal of the mark sheets, clearly suggests that the authorities concerned have tampered with the record solely with a view to offer appointment to respondent No.6 by ignoring other meritorious candidates including the petitioner. While referring to annexure P-3 i.e. certificate of diploma in Art & Crafts annexed by respondent No.6 at the time of his interview, Mr. Sharma, argued that same is not in consonance with the guidelines/regulations, as prescribed in annexure P-1 and as such, same could not be taken into consideration by the authority while awarding marks in terms of the scheme of marking. Mr. Sharma, further stated that bare perusal of diploma annexure P-3, clearly suggests that respondent No.6 passed subjects of second year in first year, whereas subjects of first year in second year and as such, selection committee has erred in taking note of the same while awarding marks to respondent No.6 on the basis of the aforesaid certificate. Mr. Sharma, further stated that certificate annexure P-4, clearly suggests that petitioner has passed Applied Art & Craft course, which is equivalent to Bachelor of Arts and as such, interview committee ought to have granted more marks and as such, grave injustice has been caused to him. Learned counsel for the petitioner further claimed that as per notification annexure P-1, petitioner was entitled for grant of 10 marks, for the course of duration of three years, but he has been granted only 7.23 marks, which is not in accordance with the scheme of marking annexure P-1.Mr.Sharma,further contended that the petitioner at the time of interview produced experience certificate from H.P.Board of School Education and as such, he was also entitled to be given some marks on account of experience in terms of annexure P-1. Learned counsel for the petitioner while concluding his argument submitted that for three years duration course having undergone by the petitioner being equivalent of Bachelor of Arts, marks were required to be given to him and as such, respondents are liable to be directed to reconsider the case accordingly and prepare a fresh result sheet. 5. Mr. Romesh Verma, learned Additional Advocate General, vehemently argued that there is no illegality and infirmity in the selection of respondent No.6 because he has been selected strictly on the basis of the interview conducted by ‘SMC’ on 2.11.2015. 5. Mr. Romesh Verma, learned Additional Advocate General, vehemently argued that there is no illegality and infirmity in the selection of respondent No.6 because he has been selected strictly on the basis of the interview conducted by ‘SMC’ on 2.11.2015. He further stated that bare perusal of the mark sheet placed on record by the petitioner itself suggests that Sub Divisional Magistrate, Paonta Sahib, District Sirmaur being Chairman himself conducted the interviews alongwith other members, wherein respondent No.6, namely Hardeep Singh, was found to be more meritorious to the present petitioner. While referring annexure P-1, learned Additional Advocate General, contended that it clearly suggests that respondent No.6 procured 29.88 marks in total, whereas petitioner could only procure 27.49 marks and as such, he was rightly not selected for the post of Drawing teacher in Government Senior Secondary School, Haripur-Khol. 6. Learned Additional Advocate General, with a view to refute the allegations having been made in the petition as well as the submissions by the learned counsel for the petitioner that there is tampering in the market sheet, made available original record of selection made by ‘SMC’ to demonstrate that there is no cutting, whatsoever, as has been alleged by the petitioner. Mr. Verma, while inviting the attention of this Court to annexure P-1 forcibly contended that marking done by interview committee in its meeting held on 2.11.2015 is strictly in accordance with the scheme of marking as prescribed in annexure P-1 i.e. notification, dated 18.11.2014 and as such, there is no force, whatsoever, in the contention put forth on behalf of the petitioner and as such, same deserve to be dismissed. 7. We have heard the learned counsel for the parties and have gone through the record of the case. 8. During the proceedings of the case, learned Additional Advocate General, made available original record pertaining to the selection of respondent No.6, perusal whereof clearly suggests that ‘SMC’ initiated selection process for the post of Drawing Master on 2.11.2015 after obtaining necessary permission from the Deputy Director, Elementary Education, Sirmaur. 8. During the proceedings of the case, learned Additional Advocate General, made available original record pertaining to the selection of respondent No.6, perusal whereof clearly suggests that ‘SMC’ initiated selection process for the post of Drawing Master on 2.11.2015 after obtaining necessary permission from the Deputy Director, Elementary Education, Sirmaur. Record further reveals that the petitioner as well as respondent No.6 alongwith other eligible candidates appeared before the interview committee headed by the Sub Divisional Magistrate, Paonta Sahib on 2.11.2015, on which date, interview committee on the basis of testimonials pertaining to education qualification found respondent No.6, namely Hardeep Singh more meritorious than the petitioner and as such, accordingly declared him selected. This Court perused the result sheet of the candidates compiled by the interview committee constituted by the SDM for interviewing the candidates for the post of Drawing Master in Government Senior Secondary School, Haripur-Khol. After perusal of the comparative merit/ result sheet, contention put forth on behalf of the petitioner deserve to be rejected out rightly because this Court sees no tampering, if any, in the result sheet as alleged by the petitioner. 9. Close scrutiny of the result sheet made available on record clearly suggests that all the candidates, who appeared in the interview have been given marks strictly in accordance with the scheme of marking as per notification, dated 18.11.2014 (annexure P-1). Since, respondent No.6 i.e. selected candidate had procured 60% marks in 10+2, he was rightly awarded 6 marks out of 10 marks as provided under the scheme. Respondent No.6, who had secured 68.79% marks in diploma Art & crafts, has been awarded 6.88 marks out of 10 marks. Similarly, being resident of concerned patwar circle where Govt. Secondary school is located, respondent No.6 has been awarded 10 marks and as such, in total 22.88 marks have been awarded to respondent No.6 on the basis of testimonials/qualifications out of 50 as prescribed under the scheme. The interview committee on the basis of viva-voce, has awarded 7 marks to respondent No.6 out of 10 marks. In total 29.88 marks have been procured by respondent No.6 in the interview. 10. Similarly, further perusal of result sheet reveals that petitioner namely Amit Singh, who had secured 52.6 marks in 10+2, has been awarded 5.26 marks out of 10 marks. In total 29.88 marks have been procured by respondent No.6 in the interview. 10. Similarly, further perusal of result sheet reveals that petitioner namely Amit Singh, who had secured 52.6 marks in 10+2, has been awarded 5.26 marks out of 10 marks. The petitioner has been awarded 7.23 marks out of 10 marks for his diploma in Art & Craft, wherein petitioner has secured 72.32% marks. Since, the petitioner was also from the concerned Patwar circle, he has been also awarded 10 marks qua the same. As far as interview is concerned, petitioner has been granted 5 marks out of 10 marks and as such, in total petitioner secured 27.49 marks, which is definitely less than marks i.e. 29.88 secured by respondent No.6. 11. At this stage, it would be profitable to reproduce marking scheme (annexure P-1) as under:- Drawing Master Sr.No. Qualification Marks 1. 10+2 with atleast 50% marks 10 2. Two year Diploma in Art and craft Teacher. Or Bachelor of Arts with Fine Arts/Visual Arts(Painting and Sculpture or applied Arts) an elective subject of 50% marks in Fine Arts. Or Master Decree in Fine Arts/Visual Arts(Painting and Sculpture). 10 3. A person is Bachelor of Arts with Fine Arts/Visual Arts (Painting and Sculpture or applied Arts) as on elective subject of 50% marks in Fine Arts in Addition to Master Decree Fine Arts/Visual Arts (Painting and Sculpture). 10 4. Permanent resident of the concern Patwar Circle where the High Secondary School located. 10 5. Interview 10 Total 50 12. Perusal of marking scheme as reproduced hereinabove, nowhere suggest that the petitioner, who had also passed his diploma in applied Art & Craft from Haryana State Board of Technical Education was entitled to some extra marks as claimed by him in the petition, rather clause-2 of the aforesaid notification suggest that either incumbent should have passed two years diploma in Art & Crafts or he should Bachelor of arts with Fine/Visual Arts(Painting and Sculpture or applied Arts) on elective subject 50% in Fine Arts. Admittedly, in the present case petitioner had only passed diploma in applied Art & Craft and as such, there was no occasion for the interview committee to equate the same with the person having Bachelor of Arts with Fine Arts. Admittedly, in the present case petitioner had only passed diploma in applied Art & Craft and as such, there was no occasion for the interview committee to equate the same with the person having Bachelor of Arts with Fine Arts. Moreover, no document was placed on record by the petitioner suggestive of the fact that apart from two years in Art & Crafts he was also having Bachelor degree of Bachelor of Arts with Fine Arts. 13. This Court also perused the copy of diploma certificate annexure P-3, which clearly suggests that respondent No.6 passed diploma in Art & Crafts from the Punjab State Board of Technical Education and Industrial Training in 1st Division. Since, respondent No.6 Hardeep Singh secured 68.79% marks in diploma, he was rightly awarded 6.88 marks out of 10 strictly in terms of scheme referred hereinabove. Close scrutiny of aforesaid diploma certificate placed on record by respondent No.6 clearly suggest that respondent No.6 passed 1st year diploma course in the year, 2009 and second year course in 2011 and as such, there is no force in the contention put forth on behalf of the learned counsel for the petitioner that respondent No.6 has not passed diploma course in two years as required under the prescribed notification provided for the appointment to the post of Drawing Master. 14. This Court after carefully examining the pleadings as well as original record made available to this Court by the Principal, Government Senior Secondary School, Haripur-Khol, sees no force in the averments/allegations having been made by the petitioner in the writ petition and same appears to be frivolous, without any basis and same deserve to be rejected outrightly. 15. Petitioner participated in the said selection process, failed to make a grade, has approached this Court by way of present writ petition, which is not permissible at all. It is well settled law that candidate who participates in the selection process has no right to assail the same at subsequent time after having failed in the same. 16. Reliance is placed on the judgment of the Hon’ble Apex Court in Manish Kumar Shahi Versus State of Bihar and others 2010(12) SCC 576 . The relevant para-16 of the judgment is reproduced as under:- “16. 16. Reliance is placed on the judgment of the Hon’ble Apex Court in Manish Kumar Shahi Versus State of Bihar and others 2010(12) SCC 576 . The relevant para-16 of the judgment is reproduced as under:- “16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner’s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Mandan Lal vs. State of J&K 1995(3) SCC 486 , Marripati Nagaraja v. Govt. of A.P. 2007(11) SCC 522 , Dhananjay Malik v. State of Uttaranchal 2008 (4)SCC 171 , Amlan Jyoti Borooah v. State of Assam 2009(3) SCC 227 and K.A.Nagamani v. Indian Airlines 2009(5)SCC 515.” 17. It is well settled law that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the constitution of the selection Board or the method of Selection as being illegal; he is estopped to question the correctness of the selection. In this regard, reliance is placed in the case of Madan Lal & Ors versus The State of Jammu & Kashmir and Ors 1995(2) SLR 209. The relevant para-9 of the judgment is reproduced as under:- “9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents herein, were all found eligible in the light of (sic) marks obtained in the written test, to be eligible to be called for oral interview. Upto this state there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Upto this state there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed that petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors ( AIR 1986 SC 1043 ):[1986(1)SLR 699(SC)], it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.” 18. In case of Lila Dhar v. State of Rajasthan, 1981 (4) SCC 159 , the Hon’ble Apex Court has observed as under:- “The appellant-petitioner having participated in the interview in this back ground, it is not open to the appellant petitioner to turn round thereafter when they failed in interview and contend that the provision of a minimum mark for interview was not proper.” 19. Consequently, in view of detailed discussion made hereinabove, this Court does not see any merit in the petition and the same is accordingly dismissed. Pending applications, if any, shall also stands disposed of. Record be returned to the learned Additional Advocate General.