C.W.P No.12077 of 2000 ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of decision : February 10, 2009
1. C.W.P No.5720 of 1999
Surinder Kumar and others vs State of Haryana and another.
2. C.W.P No.12077 of 2000
Naresh Kumar and others vs State of Haryana and others.
3. C.W.P No.14272 of 2000
Mohan Lal and others vs State of Haryana and others,
4. C.W.P No.17135 of 2000
Barham Parkash and others vs State of Haryana and others.
5. C.W.P No.1919 of 2002
Jawahar Lal and others vs The State of Haryana and others.
6. C.W.P No.2427 of 2002
Shishpal and others vs State of Haryana and others.
7. C.W.P No.3392 of 2002
Gulab Singh and others vs State of Haryana and others.
8. C.W.P No.16364 of 2006
Avinash Kumar and others vs State of Haryana and others.
***
CORAM : HON’BLE MR.JUSTICE AJAY TEWARI
***
Present : Mr. R.K.Malik, Sr. Advocate with
Mr. Yashdeep Singh, Advocate
for the petitioners in CWP No.12077 of 2000,
Mr. Bahadur Singh, Advocate
for the petitioners in CWP No.17135 of 2000
Mr. Anurag Goyal, Advocate
for the petitioners in CWP No.1919 of 2002
C.W.P No.12077 of 2000 ::2::
Ms. Alka Chatrath, Advocate
for the petitioners in CWP No.2427 of 2002Mr. G.S.Hooda, Advocate
for the petitioners in CWP No.3392 of 2002Mr. D.S.Patwalia, Advocate
for the petitioners in CWP Nos.5720 of 1999 and 16364 of 2006Mr. O.P.Sharda, Advocate
for the petitioners in CWP No.14272 of 2000.Mr.Harish Rathee, Sr. DAG Haryana
for the respondents.***
1. Whether Reporters of Local Newspapers may be allowed to see the
judgment ?2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
***
AJAY TEWARI, J
This order shall dispose of CWP Nos.5720 of 1999, 12077,
14272, 17135 of 2000, 1919, 2427, 3392 of 2002 and 16364 of 2006 as
common questions of law and facts are involved therein. For the sake of
convenience, facts are being extracted from CWP No.12077 of 2000.
The petitioners have filed the present writ petition for the
issuance of a direction to respondent No.3 to declare the result of selection
process which had been initiated, and for quashing the decision dated
17.9.2001 (Annexure P-7) by which the Haryana Staff Selection
Commission-respondent No.3 (for short “the Commission”) decided to
abandon the earlier selection process and to hold a written test for
shortlisting the candidates in the proportion of 3:1.
On 22.1.1995, 73 posts of Science Masters were advertised but
before interviews could be held additional 521 posts of Science Masters
were advertised on 7.11.1996. Interviews were subsequently held but before the
result could be declared, the same was stayed by this Court by way of interim
C.W.P No.12077 of 2000 ::3::order dated 27.5.1998 passed in CWP No.7653 of 1998. On 30.3.2000, the
said writ petition was dismissed. Thereafter, as per the petitioners instead
of declaring the result, the impugned decision was taken on 17.9.2001
holding as follows :-
” With the adoption of criteria dated 27.1.1998 and
20.1.1998 for the selection of Science Master/Mistress,
Math Master/Mistress and Lecturer Hindi (Female)
against Advt. No.1/95, 4/96 and 6/97, a large number of
eligible candidates have been deprived of the opportunity
to compete against the said posts. The shortlisting
criteria by holding the written test is the best method and
it provides opportunity to all the eligible candidates
unlike the criteria based on academic records which give
opportunity to the limited number of candidates.
Moreover, the written test is a method of objective
assessment of the candidates with no scope of
subjectivity. Further for the same posts of
Masters/Lecturers (school cadre), the Commission does
not consider appropriate to adopt two different types of
criteria. The criteria of written test has been applied for
the subsequent posts where selection has been finalised
or at the stage of finalisation.
In view of the totality of the circumstances, the
Commission unanimously resolved to hold the written
test of all the eligible candidates applied for against Advt
Nos. 1/95, 4/96 and 6/97 for the posts of Science
C.W.P No.12077 of 2000 ::4::Master/Mistress, Math Master/Mistress and Lecturer
Hindi (Female), for which the result have been
complied/yet to be complied. The commission has
further decided to hold the written test of these categories
as per the following schedule :-
Science Master/Mistress =26.11.2001 at Panchkula.
Math Master/Mistress =9.12.2001 at Panchkula.
Lecturer Hindi(Female) =23.12.2001 at Panchkula.”
Learned Senior Counsel for the petitioners has urged that had
the interim order not been passed, the result would have been declared and
just because the said process was delayed would not give enough reason to
the respondents to divert from the earlier criteria dated 30.5.1997. It would
be necessary to quote the earlier criteria as under :-
“a) Where the Service Rules of the concerned
Department prescribe a pre-condition for candidates for a
particular post to qualify/pass in a written test, such a test
will be held by the Board irrespective of the number of
candidates;
b) That where a pre-condition of test mentioned in (a)
above is not prescribed the selection shall be made by
interview alone if the number of candidates does not
exceed by about eight times the number of posts to be
filled, and
(c) That in all the other cases, the applicants shall be
short listed either by holding a written test or on the basis
of merit based on the weighted score for academic,
C.W.P No.12077 of 2000 ::5::professional, other qualification etc.
After the applicants have been placed in the
descending order on the above basis, applicants equal to
eight times of the number of posts to be filled shall be
called for interview. The final selection of the candidate
shall be made through the process of interview.”
In reply, the respondents have urged that the criteria of having
written test cannot be faulted; that this criteria was specifically upheld by a
Division Bench of this Court vide order dated 23.5.2001 passed in CWP
No.15885 of 2000, Jawahar Lal Goyal and others vs State of Haryana and
others, by holding as follows :-
” However, in the present case, there is no change in
the criteria, so far as recruitment rules are concerned.
Only by virtue of the subsequent order it had been
prescribed as to how the short listing of the candidates
would be done. Therefore, this argument so much
thought, indeed, is without any merit.
In fact, we may refer with advantage the decision
of this Court in the case of Pushap Lata and another vs
State of Haryana and others, Civil Writ Petition No.3692
of 1998 decided on 25.8.98. This Court held that the
stage for deciding whether or not all eligible candidates
should be called for interview is reached only when the
applications are scrutinised. The Board/Commission
may invite all of them or short list them. A screening test,
therefore, can be held keeping in view the large number
C.W.P No.12077 of 2000 ::6::of applications. The precise findings with which we find
ourselves in respectful agreement reads as under :-
“…… The stage for deciding whether or not all
eligible applicants should be called for final
selection is reached only when the applications are
scrutinised. Then only the Board/Commission can
know the total number of candidates who fulfill the
prescribed qualifications. If their number is within
the reasonable limit, the Board/Commission may
invite all of them for final selection. If the number
of eligible candidates is unusually large and the
Board/Commission finds it reasonably
impracticable to interview all of them.
Appropriate mechanism can be devised to reduce
the number of candidate to be called for final
selection. This can be done either by holding a
written/screening test or by making an assessment
on the basis of academic and other qualification or
by devising other suitable mode. This is precisely
what has been done by the Board/Commission in
the instant case. Therefore, we are unable to
accept Sh. Laler’s submission that the impugned
criteria has been applied with retrospective effect
depriving the petitioners of their vested right to be
considered for selection.”
The Division Bench also relied upon a notification dated
C.W.P No.12077 of 2000 ::7::28.7.1998 whereby the Governor of Haryana had made an amendment in the
Haryana Government, General Administration Department, General
Services, Notification No.523-3GS-70/2068, dated 28.1.70 which permitted
the Commission to devise the mode of selection and fix the criteria for
selection. It reads as under :-
“The 28th July, 1998.
No.G.S.R 84/Const/Art.309/98- In exercise of powers
conferred by Article 309 of the Constitution of India, the
Governor of Haryana hereby makes the following
amendments in the Haryana Government, General
Administration Department, General Services,
Notification No.523-3GS-70/2068, dated the 28th January
1970, namely :-
AMENDMENT
In the Haryana Government, General Administration
Department, General Services, Notification No.523-3GS-
70/2068, dated the 28th January, 1970 in paragraph 6 for
sub paragraph (d), the following sub-paragraph shall be
substituted and shall be deemed to have been substituted
with effect from the twenty eighth day of January 1970,
namely :-
(d) Method of recruitment and the principles to be
followed in making appointments to the Group C and
Group D posts under the State Government. The
Commission shall devise the mode of selection and fix
the criteria for selection of posts for which requisition is
C.W.P No.12077 of 2000 ::8::sent to it by a department or a office, as it may deem
appropriate and the criteria for the selection of posts
fixed earlier by the Board/Commission shall be deemed
to have been fixed under this sub-paragraph.”
Learned counsel for the petitioners have relied upon a judgment
of the Hon’ble Supreme Court in State of Punjab and others vs Harcharan
Singh and others, CA No.3521 of 2006, a judgment of the Allahabad High
Court in State of U.P vs Rakesh Kumar (Allahabad) (DB), 2004(1) SCT 34
and a judgment of this Court in CWP No.16376 of 1999, Davender Kumar
and others vs State and others, decided on 31.1.2007.
In the case of State of Punjab and others vs Harcharan Singh
and others‘ (supra), the dispute was with regard to posts of Lascars wherein
selection process was completed but appointment letters could not be issued
because of promulgation of the Model Code of Conduct. In those
circumstances, the Hon’ble Supreme Court of India held as follows :-
“For the reasons aforesaid, we set aside the impugned
order of the Division Bench of the High Court. We are,
however, of the opinion that since the respondents have
been selected by a duly constituted Subordinate Services
Selection Board and they could not be appointed because
of the ban imposed by the Government, in the fitness of
things and in the interest of justice and fair play if the
respondents could be accommodated to the posts of
Lascars for which they have been duly selected as and
when the ban of the Government is relaxed or when the
posts are revived. We make it clear that in such event the
C.W.P No.12077 of 2000 ::9::case of the respondents shall be considered first before
calling for the fresh candidates by way of advertisement
or otherwise.”
Even the case of State of U.P vs Rakesh Kumar (supra) deals
with a situation where there was no controversy with respect to the
recruitment.
In the case of Davender Kumar and others (supra), the
controversy was with regard to filling up posts of Gram Sachivs, in a
situation where selections could not fructify because the Government had
abolished octroi and consequently absorbed all those surplus employees as
Gram Sachivs. Thereafter fresh posts of Gram Sachivs were sought to be
filled up. A Division Bench of this Court held as follows :-
” It may be that in the year 1999, persons selected by the
Haryana Subordinate Services Selection Board as Gram
Sachivs could not be appointed as Haryana State had
abolished Octroi w.e.f 1.11.1999 and had proposed to
absorb the surplus staff working for the Octroi in various
Municipal Committees, still it is a fact that various writ
petitions had been filed in the years 1999 and 2000,
which remained pending till this date and by this time,
more than 600 posts of Gram Sachivs are available and
are to be filled by way of new selection by the Haryana
Subordinate Services Selection Board. It cannot at all be
said that Gram Sachivs selected by way of duly
conducted process in the year 1999, were at fault, in any
way. A large number of them had filed writ petitions in
C.W.P No.12077 of 2000 ::10::this Court, which have remained pending and now time
has come when the respondent-State have again proposed
to fill up the posts now available, which are more in
number than the persons so selected in the year 1999.
No defect has been pointed out as far as selection
process for the posts of Gram Sachivs in the year 1999,
is concerned.
In the facts and circumstances of the case, it would
be appropriate that the candidates selected for the posts
of Gram Sachivs in the year 1999 be first absorbed now
against available vacancies and then the remaining
available posts be filled by further selection process.”
It would be noticed that in the above judgments the
distinguishing feature is that the selection process had been concluded and
results declared, whereas in the present cases this is not so.
Learned counsel for the petitioners have further relied upon a
decision of the Hon’ble Supreme Court in Hemani Malhotra vs High Court
of Delhi, (2008) 2 SCC (L&S) 203, wherein the Hon’ble Supreme Court
held as follows :-
“14. It is an admitted position that at the beginning of
the selection process, no minimum cut-off marks for viva
voce were prescribed for Delhi Higher Judicial Service
Examination, 2006. The question, therefore, which
arises for consideration of the Court is whether
introduction of the requirement of minimum marks for
interview, after the entire selection process was
C.W.P No.12077 of 2000 ::11::completed would amount to changing the rules of the
game after the game was played. This Court notices that
in K.Manjusree v. State of A.P, the question posed for
consideration of this Court in the instant petitions was
considered and answered in the following terms :-
” 33. The Resolution dated 30.11.2004 merely
adopted the procedure prescribed earlier. The
previous procedure was not to have any minimum
marks for interview. Therefore, extending the
minimum marks prescribed for written
examination, to interviews, in the selection process
is impermissible. We may clarify that prescription
of minimum marks for any interview is not illegal.
We have no doubt that the authority making rules
regulating the selection, can prescribe by rules, the
minimum marks both for written examination and
interviews, or prescribe minimum marks for
written examination but not for interview, or may
not prescribe any minimum marks for either
written examination or interview. Where the rules
do not prescribe any procedure, the Selection
Committee may also prescribe the minimum
marks, as stated above. But if the Selection
Committee wants to prescribe minimum marks for
interview, it should do so before the
commencement of selection process. If the
C.W.P No.12077 of 2000 ::12::Selection Committee prescribed minimum marks
only for the written examination, before the
commencement of selection process, it cannot
either during the selection process or after the
selection process, add an additional requirement
that the candidates should also secure minimum
marks in the interview. What we have found to be
illegal, is changing the criteria after completion of
the selection process, when the entire selection
proceeded on the basis that there will be no
minimum marks for the interview.”
In my opinion, these petitions must fail. It is trite that even a
selected candidate does not earn any unequivocal right of appointment.
Here the only assertion of the petitioners is that they have been interviewed.
Secondly, there is no question of changing the rules, as pointed out in the
case of Hemani Malhotra (supra) but the following observations of the
Division Bench of this Court in the case of Jawahar Lal Goyal and others’
case (supra) would be apposite :-
” It was further urged that the criteria could not be
changed after the publication of the advertisement and
the application had been received. Even on that count,
we find that there is no merit in the said argument. The
petitioners had no vested right except the right to be
considered. No right of the petitioners is affected
because if eligible, they would be competing with
similarly situated persons. The criteria, if changed, in
C.W.P No.12077 of 2000 ::13::this light must be held not affecting any right of the
petitioners.
There are other factors which prompt us to
conclude in the same direction. There are no mala fide
that have been shown for issuing such a criteria i.e by
holding a written test. No prejudice is caused to the
petitioners. They have a right to be considered which has
not been denied. The criteria has been applied uniformly
to all the candidates. Consequently, no fundamental
right of the petitioners is being affected nor it can be
termed that any unreasonable condition had been
imposed to permit this Court to interfere.”
Further, a perusal of the earlier criteria (Annexure P-6) would
reveal that the said criteria clearly laid down that where a pre-condition of
test is not prescribed the selection shall be made by interview alone if the
number of candidates does not exceed about eight times the number of
posts to be filled. It is no body’s case that this was the position in the
present case. Much has also been sought to be made from the fact that on
an earlier occasion in this case the following order was passed :-
” Learned Advocate General Haryana has stated that
the Government will take decision on finalisation of
selection within two months.
Admitted to be listed for hearing on 8.10.2001.”
It is argued that the above statement clearly indicated that the
result was to be declared. I am afraid the plain meaning of this statement
does not indicate any thing of the sort. The reasons cited in the impugned
C.W.P No.12077 of 2000 ::14::
decision (supra) clearly show that a reasoned decision was taken to hold
written test and the reasons can by no means be termed as arbitrary.
In my opinion, the decision of the Division Bench in the case of
Jawahar Lal Goyal and others (supra), completely covers the facts of the
present cases. The primary allegations made in the present writ petitions
have been considered and repelled in the above judgment, which is binding
on this Court. Consequently, these writ petitions are dismissed, however,
with no order as to costs.
( AJAY TEWARI ) February 10, 2009. JUDGE `kk'