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2018 DIGILAW 82 (HP)

Kumari Pushpa Devi v. State Of Himachal Pradesh

2018-01-06

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Justice Tarlok Singh Chauhan, J —Petitioner aggrieved by the appointment of respondent No. 6 as Part Time Water Carrier in Government Primary School, Baroh, Tehsil Fatehpur, Distt. Kangra, H.P., has filed the present writ petition for quashing of appointment order dated 24.01.2014 so issued in favour of respondent No. 6. 2. It is averred that the official-respondents could not have appointed respondent No. 6 as it was the petitioner who had preferential claim of appointment as her family had donated land for the school. Additionally, it was submitted that since the petitioner was disabled to the extent of 50%, sought to be appointed in place of respondent No. 6, who otherwise suffered no disability. 3. The official-respondents have filed reply, wherein, they have not denied the factual position either with respect to land having been donated by the family of the petitioner or the disability suffered by her. However, the appointment made in favour of respondent No. 6 is sought to be justified on the ground that in the final tally of marks, the petitioner had obtained 21.5 marks as against the respondent No. 6 who had obtained 22 marks and, therefore, being first in merit the respondent No. 6 came to be appointed. 4. Respondent No. 6 also contested the petition by filing reply, wherein, it is specifically stated that since there is no marks for disability, the post had to be filled-up strictly in accordance with merit and since the replying respondent had obtained more marks then the petitioner, obviously, the appointment letter had to be issued in her favour. I have heard learned counsel for the parties and have gone through material placed on record. 5. Evidently, there is no provision in the entire scheme whereby providing of additional marks to the candidate(s) suffering from disability. 6. In case, the mark-sheet is seen, then, it would be noticed that the petitioner has been allotted 10 marks for distance, 5 marks for donation of land, 5 marks for belonging to unemployed families and 1.5 marks for the interview, and in this manner the petitioner has secured 21.5 marks. 7. 6. In case, the mark-sheet is seen, then, it would be noticed that the petitioner has been allotted 10 marks for distance, 5 marks for donation of land, 5 marks for belonging to unemployed families and 1.5 marks for the interview, and in this manner the petitioner has secured 21.5 marks. 7. On the other hand, respondent No. 6 has been allotted 10 marks for distance, 3 marks for belonging to SC/ST/OBC/BPL family, 5 marks for belonging to unemployed family and 4 marks (out of 7 marks) for interview, and in this manner, respondent No. 6 has secured total 22 marks as against the petitioner who has secured 21.5 marks, which obviously are slightly higher than the one secured by the petitioner. 8. The learned counsel for the petitioner would vehemently contend that the records of the selection had been tampered with and would rely upon the reply filed by respondent No. 5, whereby in paras 3 and 4 of the same, it has been averred as under:- "3. That it may further be respectfully submitted on behalf of the replying respondent that the date of interview was fixed on 07.01.2012 and the place of interview was GPCS Malhant at 11:00 a.m. It may further be submitted that both the candidates appeared before the Selection Committee on the scheduled date and time. The replying respondent was one of the members of the Selection Committee. The interview was conducted by the Selection Committee and during the course of interview the name of the petitioner was finalized and recommended unanimously keeping in view the fact that the family of the petitioner had donated the land for the construction of building and also her performance in the interview but it is relevant to submit here that the led pencil was used by the Chairman of the Selection Committee, however, it was finally decided to recommend the name of the petitioner. 4. That the replying respondent further respectfully submitted that as per the criterion fixed for awarding the marks under various head, the petitioner obtained 20 marks and respondent No. 6 obtained 18 marks only. So far as the marks of the personal interview are concerned both the candidates were awarded equal marks each but the fact remains that it was unanimously decided to recommend the name of the petitioner." 9. So far as the marks of the personal interview are concerned both the candidates were awarded equal marks each but the fact remains that it was unanimously decided to recommend the name of the petitioner." 9. On a perusal of the affidavit alongwith the complaint filed by respondent No. 5 to the Centre Head Teacher, Primary School, Malhanta, District Kangra, H.P., it would be noticed that nowhere in the entire representation he even made a whisper to the effect that his signatures are not obtained on the mark-sheet on the basis of which order of appointment in favour of respondent No. 6 came to be issued. Therefore, the stand of respondent No. 5 cannot be countenanced and is clearly not only an after thought but has been filed with the intent to help the petitioner. 10. Why it is an after thought is because the result of the selection was declared on 24.01.2012 whereas the representation made by respondent No. 2 to the Centre Head Teacher is made practically after one month i.e. on 22.02.2012? 11. Not only this, noticeably, the instant writ petition was filed in this Court on 14.02.2012 i.e. prior to the letter sent by respondent No. 5 to the Centre Head Teacher, Malhanta, District Kangra, H.P., which in itself speaks volumes against the conduct of respondent No. 5. I have no hesitation to conclude that this letter has been manufactured and created only to help the petitioner. 12. Learned counsel for the petitioner would then argue that the interview was held only with a intent to appoint respondent No. 6. In support of this contention strong reliance is placed on a judgment delivered by this Court on 20.10.2016 in CWP No. 1796 of 2015, titled as Santosh vs. State of Himachal Pradesh and others , (2016) 5 ILR(HP) 1633, more particularly, the following observations:- "13. The members of the Selection Committee were called on by this Court to appear before it and explain the conduct and would claim that they had awarded marks strictly on the basis of the performance of the candidates. I am afraid that such contention on behalf of the members of the Selection Committee is not at all acceptable in teeth of the material placed on record. I am afraid that such contention on behalf of the members of the Selection Committee is not at all acceptable in teeth of the material placed on record. The Selection Committee, to say the least, has acted in a highly arbitrary and capricious manner and the selection is nothing but an outcome of favouritism and nepotism. The Selection Committee has shown complete insensitivity while dealing with the selection that too of candidates, who were highly qualified. The petitioner, admittedly, is a Post-Graduate in Political Science and has also qualified the Language Teacher Eligibility Test and the members of the Selection Committee would have this Court to believe that she was so dumb so as to be awarded 0 marks, 0.5 and 2 marks in the interview, whereas, respondent No.6 was so intelligent so as to be awarded 9, 9 and 9 marks each. 14. I have no hesitation to conclude that the marks have been awarded to different candidates at the whims and caprice of the members of the Selection Committee to facilitate the selection of respondent No.6 or else such disparity in allocation of marks would not exist. There is virtually no element of selection and so-called process of selection was only a farce and mockery. 19. It is difficult to fathom that the petitioner lacked all such qualities so as to be awarded 0 marks by the Principal, 0.5 by the SDM and only 2 marks by the President of the SMC, who himself is only 7th class pass. To say the least, the entire process of selection was nothing, but a farce and clear eye-wash to appoint respondent No.6, by hook or crook. 20. After having concluded that there has been favouritism and nepotism in conducting the selection, the further question that arises for consideration is as to what action should be taken against the members of the Selection Committee, who had been entrusted and assigned with the responsibility of making a fair selection. Although, this is a fit case where stern action is called for against the members of the Selection Committee. Although, this is a fit case where stern action is called for against the members of the Selection Committee. However, taking into consideration the fact that the President of the SMC is not a Government servant and further taking into consideration that the head of the Institution has already retired, it will not be proper to single out and initiate any kind of proceedings against the Sub Divisional Magistrate, who is still serving and currently posted as such at Manali, District Kullu, particularly, taking into consideration her long career ahead. However, at the same time, she is warned to be careful in future." 13. Even this contention of the petitioner is equally without merit as there already exists a provision in the scheme for interview of 7 marks. 14. As regards the judgment in Santosh''s case , the same can be of no assistance to the petitioner for more than one reasons. 15. Evidently, in Santosh''s case , the post in question was TGT to be filled up on the basis of SMC and the Selection Committee therein comprised of SDM of the concerned Sub-Division, President of SMC concerned school and Head of the Institution. This Court had specifically observed that the petitioner therein was well qualified and may have been more qualified than the members of the Selection Committee itself. The Court also recorded certain interpolation in the record and what shocked the conscience of this Court was that the SDM had awarded 9.5 marks out of 10 marks to the appointed candidate whereas the petitioner herein was awarded only 0.5 marks. Likewise, the other members of the Selection Committee had awarded equally low marks, and in this manner, the petitioner was awarded ridiculously low marks of 0.83 out of 30 marks in viva-voce and the difference even after awarding such marks in between the two candidates was only 0.47 marks. It was then this Court indicted the members of the Selection Committee and was constrained to make the observations as have been extracted above. 16. It was then this Court indicted the members of the Selection Committee and was constrained to make the observations as have been extracted above. 16. It would also be noticed that this Court before proceeding with the matter had clearly observed that it would not be sitting as a Court of appeal over the assessment of an individual candidate made by the respondents and would also not adopt a role of supervisory authority to revaluate the performance as is evidently clear from para-9 of the judgment which reads thus:- "9. Normally, this Court would not sit in appeal over the assessment of an individual candidate made by the respondents and would also not adopt a role of supervisory authority and revaluate the performance of a candidate at the viva voce/interview merely because of a whisper of favouritism has been levelled. But then can the Court ignore a selection which is an amalgam of favouritism and nepotism and uphold the same." 17. In view of the aforesaid discussion and also taking into consideration the limited scope of judicial review in such matters, I do not find any merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.