Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 2117 (JHR)

Anuj Sharma, son of Shri R. K. Sharma v. State of Jharkhand through the Principal Secretary, Department of Health, Medical Education and Family Welfare

2018-09-24

ANIRUDDHA BOSE, B.B.MANGALMURTI

body2018
ORDER : 1. We admit the appeal and on consent of the learned counsel for the Parties, we are taking up the file for hearing at the stage only. 2. The dispute in this appeal involves consideration of certain materials for giving weightage in a selection process for the post of Lecturer in Rajendra Institute of Medical Sciences, Ranchi in the subject of Periodontology and Oral Implantology. The eligibility criteria for that post was specified in Advertisement No.7581 dated 7th November, 2015. So far as the post of Lecturer is concerned, the eligibility criteria stipulated was MDS in concerned subject with three years teaching experience as Tutor/Senior Resident in concerned subject. 3. There are three other clauses which are relevant for adjudication of the dispute involved in this appeal. These clauses form part of the same advertisement, which appeared under the heading “Instruction for the Candidates”. These are clauses 1, 9 and 18 which stipulated – “1. Complete application in prescribed Performa, with bio-data in all respects, signed by the candidate, should reach in the office of the Director, Rajendra Institute of Medical Sciences, Ranchi-834009 on/or before 30.11.2015 till 5.00 PM by Registered/Speed Post only. After the due date and time (i.e. 30.11.15 till 5.00 PM) applications or any other documents shall not be accepted. The institute shall not be responsible for any postal delay.” “9. Publication in indexed journal of International/national/State level as per DCI are essential.” “18. The age and experience will be counted as on 30.11.2015.” 4. The interview for the post was held on 1st April, 2016 and in the interview, the Respondent No.4 was selected for the post. The writ petitioner questioned his selection before the learned First Court mainly on the ground that certain publications made by the Respondent No.4 in International Journals were published on 16th/30th March, 2016 and 31st March, 2016 and weightage was given to such publications while considering the candidature of the said respondent. The advertisement itself does not specify the manner in which weightage was to be given for different criteria on the basis of which selection was to be made. In the score-sheet, a copy of which has been annexed at page 55 of the Memorandum of Appeal, however, we find the manner in which weightage was to be given for different criteria on the basis of which selection was made. In the score-sheet, a copy of which has been annexed at page 55 of the Memorandum of Appeal, however, we find the manner in which weightage was to be given for different criteria on the basis of which selection was made. This would appear from the following table, which are extracts from the score-sheet : Bio Data BDS Marks % MDS (in concerned speciality subject) Failure if any in MDS Publication Maxm. 15 Points (Journals) during qualifying period. Paper presentation in national / international conference Maxm. 05 points during qualifying period Teaching Experience Maxm. 15 points Points Obtained Points by selection committee Maxm. 25 points (25 x a/100; a = aggregate % of marks obtained in BDS) 10 Points (-2 Points for failures) For each publication in International Journal 04 Points / National Journal 03 Points For each paper presentation 02 points 02 Points in each completed year Total 70 30 Points 5. The selected candidate (Respondent No.4) obtained in total 70.85 points whereas the appellant-writ petitioner obtained 64.05 points in the selection process. He was kept in wait list-I by the Interview Board. The selected candidate obtained 08 points in relation to publication in International / National Journals whereas the appellant-writ petitioner was awarded maximum 15 points under that head. The writ petition, however, was dismissed by the learned Single Judge holding, inter alia, that as per Clause 18 of the advertisement, experience meant only teaching experience and paper publication could not be considered to be the teaching experience. Clause 18 of the advertisement under the aforesaid heading stipulated :- “The age and experience will be counted as on 30.11.2015” The learned First Court’s view was that any paper publication at the time of interview as extra qualification was rightly accepted by the Selection Committee. It was further held by the learned First Court in Para 9 and 10 of the judgment :- “9. Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that no interference is required in the instant writ petition. There is no illegality or infirmity committed by the respondents in appointment of respondent no.4. The entire selection and appointment process, as it appears from the records, has been done after following the settled principles of law, rules, guidelines as envisaged in the advertisement. There is no illegality or infirmity committed by the respondents in appointment of respondent no.4. The entire selection and appointment process, as it appears from the records, has been done after following the settled principles of law, rules, guidelines as envisaged in the advertisement. There is neither departure from the rules, as alleged by the petitioner nor any change of rule and as such, it cannot be inferred that the respondent no. 4 had been appointed dehorse the rules. It was open to the respondents to consider case of candidates regarding paper publication at respondents to consider case of candidates regarding paper publication at the time of interview. It is not a case that after the interview was over, paper publication (international publication) was taken into consideration by the Board and as such, submission of learned counsel for the petitioner that the articles of respondent no. 4 were published in the Journal after the qualifying date and were considered at the time of interview and marks were awarded on the basis of said publication is no acceptable by this Court. In absence of any stipulation regarding cutoff date in the advertisement, it can be comfortably said that 30.11.2015 is not the cut-off date for the purpose of paper publication and any reliance on such cut-off date, cannot be considered. 10. As a cumulative effect of the aforesaid rules, guidelines, observations and judicial pronouncements, this Court is of the considered view that there is no illegality or infirmity in the process of selection regarding the consideration of international paper publication at the time of interview. It has been held in catena of decisions that even at the time of interview the papers can be considered and suitable marks may be awarded. There is no violation of any statutory provisions and as such, no interference is required in the instant writ petition.” 6. Mr. Sumeet Gadodia, learned counsel for the appellant has submitted that consideration of materials published and produced subsequent to the date of advertisement by the Institute was improper. He has drawn our attention to the application form of the selected candidate in which he had disclosed against the column specified for paper publication 03 publications in State, 01 in National and there was no information against the column against which International publication was to be disclosed and that space was kept blank. Mr. He has drawn our attention to the application form of the selected candidate in which he had disclosed against the column specified for paper publication 03 publications in State, 01 in National and there was no information against the column against which International publication was to be disclosed and that space was kept blank. Mr. Gadodia has cited five authorities in support of his submissions. These are : 1. (2009) 4 SCC 555 Mohd. Sohrab Khan Vs. Aligarh Muslim University & Others. 2. (2008) 3 SCC 512 K. Manjusree Vs. State of Andhra Pradesh & Another. 3. (2013) 4 SCC 540 Tej Prakash Pathak & Others Vs. Rajasthan High Court & Others. 4. (2003) 3 SCC 548 Yogesh Kumar & Others Vs. Govt. of NCT, Delhi & Others. 5. (2014) 5 SCC 774 Bishnu Biswas & Others Vs. Union of Indian & Others. These authorities lay down in substance the proposition of law that a selection process is required to be conducted on the basis of predisclosed criteria and such criteria cannot be altered midway through the selection process. 7. Appearing on behalf of the Institute, Dr. Ashok Kumar Singh, learned counsel has argued that there was no alteration of the selection criteria subsequent to the commencement of selection process. Referring to Clause 18 in the advertisement, which we have quoted above, his submission is that only age and experience was required to be counted as on 30th November, 2015 and it was well within the power of the Interview Board to consider any publication effected subsequent to that date but prior to the date of interview. He has also argued that the appellant-writ petitioner would himself be ineligible on the ground that he did not have sufficient teaching experience in the concerned subject, which was the eligibility criteria. 8. Mr. Indrajit Sinha, learned counsel for the selected candidate (Respondent No.4) has founded his case on the same reasoning as that of Dr. Singh. His case is that the cut-off date, if any, specified in the advertisement, was in relation to the age and experience only and it was permissible for any publication made prior to the date of interview to be considered by the Interview Board. 9. We accept the submission of Dr. Singh and Mr. Sinha that publication in International Journal does not form part of essential eligibility criteria. 9. We accept the submission of Dr. Singh and Mr. Sinha that publication in International Journal does not form part of essential eligibility criteria. But this is a supplemental factor on the basis of which a candidate’s ability was required to be judged. Now the question arise as to whether the Interview Board had the discretion in accepting such supplemental factors which came into existence after the application forms were submitted. We have to test as to whether such post-application publications could have had been evaluated or not by the selecting body. Clause 1 of the “Instruction for the Candidates” stipulated that the applications in prescribed proforma with Bio-Data in all respect, signed by the candidate, were to reach the office of the Institute on or before 30th November, 2015 till 5.00 PM. It was also specified that after the due date and time i.e., 30th November, 2015 till 5.00 PM, applications or any other documents shall not be accepted. In this case, the Interview Board has accepted documents generated subsequent to 30th November, 2015. This, in our opinion was in breach of the norms set down by the selecting body themselves. Secondly, in our view, in a selection process the selecting body can rely on only those materials which had been generated on the date of the publication of the advertisement or on or before the last date for filing the application form in the absence of any cut-off date stipulated. A candidate, in absence of a cut-off date, has to be assessed on the basis of his qualification on the last date of filing of the application form and not thereafter. Though the specified norm in this case stipulated cut-off date in respect of age and experience, it cannot lead to the inference that in respect of other factors to which weightage was to be given, the selecting body had unfettered discretion to extend time. Our opinion on this point, of course, is subject to any other specific clause the selection body might stipulate in laying down the date stipulation. In this case, however, we do not find any such clause. This being the position of law, we are of the view that the selection body had erred in taking into cognizance the publications of the Respondent No.4 at the time of interview which were made subsequent to the date of filing of applications. In this case, however, we do not find any such clause. This being the position of law, we are of the view that the selection body had erred in taking into cognizance the publications of the Respondent No.4 at the time of interview which were made subsequent to the date of filing of applications. This was contrary to Clause 1 of the “Instruction for the Candidates” and also the general principle of law that in the absence of any specific cut-off date, the last date for filing application form would be the material date. 10. For these reasons, we set aside the judgment of learned First Court. We direct the Institute to recast the score-sheets of the appellant and the Respondent No.4 as regards allocation of points in relation to weightage given to publications excluding from the zone of assessment any publication produced by the Respondent No.4 made after 30th November, 2015. We have not made any comment on the qualification of the appellant as the authorities themselves had passed him on that score. In the event there is any mistake, as suggested by Dr. Singh, it would be for the authorities to take steps in accordance with law. We are not immediately invalidating the selection of the Respondent No.4. We direct that if he has already been appointed, his appointment shall be subject to recasting of the respective score-sheets in the manner directed by us. If after this exercise it is found that on computation of total points, the appellant has scored more than the Respondent No.4, the selection of respondent No.4 shall stand invalidated. The appellant in such case, as the second best candidate on the basis of present evaluation shall be declared as successful candidate and all consequential steps shall be taken. This exercise shall be undertaken and completed by the Institute within a period of twelve weeks from the date of communication of this order. 11. The appeal is allowed in the above terms. The I.A. shall also stand disposed of. 12. No order as to costs.