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2019 DIGILAW 979 (CHH)

VIKAS RAJ v. HIGH COURT OF CHHATTISGARH

2019-11-05

P.R.RAMACHANDRA MENON, PARTH PRATEEM SAHU

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JUDGMENT P. R. Ramachandra Menon, C.J. - Grievance is against the course pursued by the learned Single Judge whereby interference was declined and the writ petition was dismissed, holding that the challenge raised against the process of selection after participating in the said process is not correct or sustainable in view of the law declared by the Supreme Court in this regard. 2. Heard the learned counsel for the Appellant and the learned standing counsel for Respondent No.1, as well as the learned counsel representing Respondent No.2. 3. The sequence of events reveals that Annexure P/1 advertisement was issued by the 1st Respondent on 04.11.2018 for appointment to the post of Assistant Grade-III. With the involvement of the 2nd Respondent, a written test was conducted on 27.01.2019 and a skill test in Hindi and English typing followed on 13.05.2019. It was thereafter, that Annexure P/5 select list was published on 18.07.2019 and appointment was being made from the said select list. Since the Appellant could not find place in Annexure P/5, but for getting included in Annexure P/6 waiting list, he approached this Court challenging the course and proceedings, particularly, the preparation of the rank list, alleging that even the candidates who participated only one of the two skill tests and bagging the minimum extent of marks (either in English typing or Hindi typing) were placed in the select list and were fortunate to be appointed. 4. According to the Appellant/writ Petitioner, skill had to be assessed in both English and Hindi typing separately. The process of selection, as notified, clearly mentioned that 50% marks had to be secured in the skill test in respect of General candidates and 40% in respect of SC/ST/OBC candidates. Since separate minimum in respect of English and Hindi skill tests was not insisted, a candidate who attempts only in the Hindi skill test and bags 50% of the total marks of 50 prescribed for the skill test or obtains 20 marks out of 25 for Hindi and obtains only 5 marks out of 25 marks for English, will also get selected as he satisfies the minimum of 50% or 40%, as the case may be. This does not reflect the correct merit position and hence the challenge in the writ petition, claiming the following relief(s) :- "10.1 The Hon'ble Court may kindly be pleased to issue appropriate writ/writs, direction/directions, order/orders and to quash the select list of S.T. candidates for the post of Assistant Grade-III (Annexure P-5), and further be pleased to direct the Authorities to prepare fresh select list for S.T. candidates on the basis of marks obtained in written text and both the language typing skill text. 10.2 That, the Hon'ble Court may kindly be pleased to direct the Respondents to re-check the answer sheet of the skill text of the petitioner and after reallottement of marks, fresh select list should be prepare. 10.3 That, the Hon'ble Court may kindly be pleased to direct the Respondents to keep vacant one post of Asstt. Grade-III, till adjudication of this petition and/or if, the post of Asstt. Grade-III are fulfilled by appointment, then one post should be created for the petitioner and he be given appointment on that post. 10.4 Any other relief, which the Hon'ble Court deems fit looking to the facts and circumstances of the case, may also be granted to the petitioner. 10.5 Cost of the petition may also be awarded to the petitioner." 5. When the writ petition came up for consideration, it was noted by the learned Single Judge that the writ Petitioner had admittedly participated in the process of selection and hence it was not open for the writ Petitioner, who lost the battle, to have challenged the selection proceedings after participating in the said exercise. It was accordingly, that the writ petition was dismissed, which in turn is under challenge in this appeal. 6. When the matter came up for consideration before this Court, the rationale in ignoring one field of the skill test, whether it be 'Hindi' or 'English', and taking the total marks of the skill test in two different subjects as the basis for giving clearance on the satisfaction of the minimum of 50% or 40% (as the case may be) was doubted and clarification was sought for. We passed a detailed order on 04.10.2019 interdicting further appointment from the select list, which reads as follows :- "Mr. Ravindra Agrawal, Advocate for the Appellant. Mr. Rajeev Shrivastava, Advocate for respondent No. 1. Dr. S.K. Pande, Advocate for respondent No. 2. We passed a detailed order on 04.10.2019 interdicting further appointment from the select list, which reads as follows :- "Mr. Ravindra Agrawal, Advocate for the Appellant. Mr. Rajeev Shrivastava, Advocate for respondent No. 1. Dr. S.K. Pande, Advocate for respondent No. 2. Heard counsel for both the sides. Considering the nature of grievance projected by the appellant herein, we would like to have further details with regard to the conducting of the skill test, allocation of marks and as to the qualifying/disqualifying steps in this regard, so as to be placed in the merit list which is to be finalized on the base of the relevant rules. Respondents are directed to file their version/return giving all the relevant particulars in this regard. No further appointment orders shall be issued based on the rank list till the next date of posting. Appointment effected so far and joining duty by the candidates concerned, shall be subject to further orders of this Court. List the matter for further consideration on 17 th October, 2019." 7. The 1st Respondent has filed a return dated 16.10.2019 explaining the facts and circumstances. There is no dispute with regard to the qualification prescribed for the post in question or as to the process of selection. The total marks were stipulated as 200, out of which, 150 marks were in respect of written test and the remaining 50 marks for the skill test, which consisted of Hindi typing and English typing, carrying 25 marks each. The relevant norms stipulated that a candidate will be declared as qualified only if he secured minimum of 50% in respect of General candidates and 40% in respect of SC/ST/OBC (non-creamy layer category) in the skill test. A candidate who failed to get the requirement as above, would be declared as disqualified and was not to be included in the merit list. The total marks of 50 provided for the skill test, as mentioned above, were segregated into two i.e. 25 marks for English typing test (a passage of 300 words to be typed in 10 minutes) and 25 marks for Hindi typing test (a passage of 250 words to be typed in 10 minutes). It was also stipulated that < mark was to be deducted for each mistake. 8. It was also stipulated that < mark was to be deducted for each mistake. 8. The version of the 1st Respondent is that, but for mentioning the process of selection and allocation of marks, no separate minimum in respect of English skill test and Hindi skill test was specifically mentioned in the notification/advertisement. It was in the said circumstance, that the process and proceedings were finalized and 50% of the total 50 marks allotted for the skill test was taken as the basis, to declare the candidate as qualified. This being the position, the Appellant who participated in the process of selection, based on the contents of the notification as above, is not justified in approaching this Court challenging the said process of selection, by virtue of the law declared by the Supreme Court on the point, which has been rightly relied on by the learned Single Judge for declining interference. It was further pointed out that, over all assessment of the candidates is taken care of and that only the best candidates from the available lot are being selected and hence no interference is warranted. 9. In this context, it is pertinent to note, as pleaded in paragraph- 13 of the return filed on behalf of the 1st Respondent, that the Appellant/writ Petitioner who belongs to 'Scheduled Tribe' category has not secured 40% of marks in English typing and therefore, there is no cause of action for him to challenge the process and proceedings; more so, when his contention is that there has to be separate minimum for each of the two skill tests. 10. Learned counsel for the Appellant now contends that the Appellant had virtually secured a total of more than 50% marks in the two skill tests and as such, there is no justification for rejecting his candidature. Specific reference is made to Annexure P/6 produced along with the writ petition giving the particulars of marks obtained by the candidates. The Appellant has been placed at Sl.No.31. As reflected from Column No.12, he could obtain only 7.5 marks' out of 25 marks for English typing; while he secured 18 marks' out of 25 marks for Hindi typing as given in Column No.13. Thus, the total marks obtained by the Appellant for the skill tests is given as 25.5' as borne by the entry in Column No.14. As reflected from Column No.12, he could obtain only 7.5 marks' out of 25 marks for English typing; while he secured 18 marks' out of 25 marks for Hindi typing as given in Column No.13. Thus, the total marks obtained by the Appellant for the skill tests is given as 25.5' as borne by the entry in Column No.14. If the contention of the Appellant is accepted, that there has to be separate minimum marks to declare a candidate as qualified, it equally applies to him as well and he can't be treated as qualified; having secured only 7.5 marks out of 25 marks for English typing. But on adding the marks obtained in English and Hindi typing together, it comes to 25.5 (7.5 + 18), which is more than the requisite extent of 40%, he being a member of Scheduled Tribe. It is for the said reason, that he has been included in Annexure P/6 waiting list, submits the learned counsel for the 1st Respondent. 11. It is pointed out by the learned counsel for the Respondents that the idea and understanding of the Appellant that he has been left out is not correct. Since he has secured more than the requisite extent of minimum qualifying marks for the skill tests (taken together), he is qualified. But by virtue of the higher merit of other candidates, who obtained more marks than the Appellant, they came to be given higher placement and included in Annexure P/5 select list. Only if the said list is exhausted and further vacancies are still available during the validity period of the list, would a chance arise for the Appellant to be considered for appointment, by virtue of the placement in Annexure P/6 waiting list, which instance is still to come. As such, there is no cause of action for the Appellant as on date, to file the writ petition or the present writ appeal and the proceedings pursued by the Respondents are in conformity with the terms and conditions of the notification. 12. We find considerable force in the said submission. However, we find that the scheme of selection, stipulating a minimum mark to be declared as qualified, is with a specific intent. There is no dispute with regard to the method of recruitment. 12. We find considerable force in the said submission. However, we find that the scheme of selection, stipulating a minimum mark to be declared as qualified, is with a specific intent. There is no dispute with regard to the method of recruitment. Apart from the written test, the candidate has to prove the 'skill' to get appointed to the post in question, by virtue of the nature of duties to be performed. There is also a specific provision for conducting the skill test, both in English typing and Hindi typing, carrying 25 marks each; with a total of 50 marks. When the norms of selection stipulate that minimum of 50% [40% for SC/ST/OBC] has to be secured in the skill test, the skill has necessarily to be proved in both the subjects i.e. English typing and Hindi typing. Mere addition of the marks in the above two different fields will not be the true reflection of the skill of the candidates concerned. In other words, a candidate having the requisite skill in one particular field, if does not process the requisite/minimum extent in the other one, he may have to be declared as unfit. We are not saying anything with regard to the actual requirement or the qualification, as it is for the employer to specify the requirements and to give effect to the norms of selection accordingly. 13. Insofar as the process of selection stipulates that a minimum mark has to be obtained in the skill test and since the skill test is stated as to be in two different subjects i.e. English typing and Hindi typing, it has to be read and understood that the skill has to be proved in both the above disciplines. If that be so, the requisite minimum marks have to be secured in English typing and Hindi typing, to be declared as qualified. In other words, the requisite minimum of 50% (or 40% as the case may be) has to be satisfied in both the English typing and Hindi typing skill test and that adding of marks in the above two different subjects to meet the minimum cut off marks for the skill test, cannot be treated as enough for selection of the best candidates. 14. 14. But coming to the case in hand, it remains a fact that no such 'separate minimum' was prescribed by the Respondents when the advertisement was issued on 04.11.2018. This being the position, it cannot be taken to the prejudice of the candidates who participated in the process of selection, in terms of the stipulations, as notified. It is settled law that rules of the game can't be changed after commencement of the game. We find support from the ruling rendered by the Supreme Court in the matter of K.Manjusree v. State of Andhra Pradesh and Another, (2008) 3 SCC 512 in this regard. Hence, it cannot be interdicted by this Court, as of now; more so when the affected parties are not included in the party array. In the said circumstance, we leave it as it is. We, however make it clear, that if the very same norms continue to govern the field, 'separate minimum' shall be stipulated in the next process of selection onwards, giving a clear idea to the participants as to the nature and extent of skill to be proved by them. 15. With the above observation, writ appeal stands dismissed.