Punjab-Haryana High Court
Dr. Deepak Uppal vs State Of Punjab And Others on 6 May, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 5522 of 2011
Date of Decision : 6.5.2013
Dr. Deepak Uppal ..... Petitioner
Versus
State of Punjab and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. Ashok Bhardwaj, Advocate, for the petitioner.
Ms. Monica Chhibber Sharma, DAG Punjab.
AUGUSTINE GEORGE MASIH, J.
Petitioner has approached this Court praying for issuance of writ of certiorari for quashing the merit list of General (Ex-serviceman category) (in short 'ESM') of the Medical Officer (Dental) (Annexure-P-10), issued by the Director, Health and Family Welfare, Punjab-respondent No. 2, selecting respondent No. 3 over and above the petitioner by giving him higher marks in the interview than the petitioner.
Briefly the facts of the case are that a public notice was issued by the Principal Secretary to Government of Punjab, Department of Health and Family Welfare, Punjab-respondent No. 1 for recruitment of four categories of officials, out of which one was Medical Officer (Dental), for which 34 posts were earmarked. Out of these 34 posts, 2 posts were reserved for the Ex- serviceman category. In pursuance to the said advertisement, petitioner, who is son of an honorary Lieutenant of Indian Army, applied for the post of Medical Officer (Dental) in the Dependent of Ex-serviceman (in short CWP No. 5522 of 2011 -2- 'DESM') category . The written examination was held on 8.8.2010 and the result was declared by the respondents wherein petitioner was placed at Serial No. 2 of the merit list, whereas respondent No. 3 was at Serial No. 5. A public notice was issued, listing therein eligible and ineligible candidates. Name of the petitioner figured in the list of ineligible candidates on the ground that petitioner had not attached the documents alongwith the application. Petitioner submitted the said certificates on 9.9.2010. Still the name of the petitioner figured in the ineligible candidates on the ground that internship and registration was done after 2010. Petitioner preferred CWP No. 17162 of 2010 for declaring the petitioner eligible and to conduct his interview.
Upon receipt of notice by respondent No. 2 and other similar writ petitions, respondent No. 2 issued corrigendum dated 23.9.2010 and declared all ineligible candidates as eligible who fulfilled the educational qualifications and registration upto the date of interview. Petitioner alongwith other candidates was called for interview on 30.9.2010, on which date petitioner appeared. Final select list was issued by respondents wherein petitioner was placed at Serial No. 4 of the select list of the ESM category and respondent No. 3 at Serial No. 3. First two selected candidates were ex-servicemen. One of the ex-servicemen whose name figured at Serial No. 2, namely, Shri Jagmohan Singh did not join his post and due to non-availability of any other ex-serviceman candidate, Jaspreet Singh Badwal-respondent No. 3, who was first in the merit list of Ex-servicemen dependents was issued the appointment letter as a Medical Officer (Dental). Petitioner has approached this Court challenging the selection of respondent No. 3 on the ground that although, petitioner has obtained 48 marks in the written test, he has been given only CWP No. 5522 of 2011 -3- four marks in the interview, totalling 52 marks, whereas respondent No. 3, who secured 45 marks in the written test, has been granted one mark for publication, two marks for experience and six marks for interview, totaling 54, which the petitioner contends is arbitrary exercise of powers and 10 interview marks fixed by the respondents are excessive. It has also been asserted that in the public notice dated 25.9.2010, nothing was mentioned with regard to the criteria to be followed in the interview and, therefore, granting of extra marks of publication and experience is not sustainable as the same amounts to extending the jurisdiction of the selection committee. It has been asserted that no selection criteria has been provided in the Statutory Rules and, therefore, process of selection is vitiated.
Reply to the writ petition has been filed by the respondents wherein it has been stated that the petitioner being lower in merit than respondent No. 3 in the final merit list cannot be given the appointment as two posts, which were reserved for the ESM category, have been filled up according to the merit. It has been stated that the criteria for granting marks has been provided by the Government and the selection of candidates has been done by the committee which was established by the Government comprising of Head of Neurology Department, PGI Chandigarh (Retired) alongwith other seven members, which were Secretary level officers. It has been stated that the criteria for recruitment for the post of Medical Officer (Dental) has been fixed prior to the conduct of the written examination, but on the administrative grounds it had not been disclosed earlier. In the interview that was conducted by the Committee, marks were given to the candidates as per their knowledge, experience and documents produced by them apart from CWP No. 5522 of 2011 -4- their performance. Accordingly, prayer has been made for dismissal of the writ petition being devoid of any merit.
Counsel for the petitioner contends that no criteria has been fixed by the competent authority, i.e. the appointing authority and the same has been formulated by the selection committee without any jurisdiction and authority to frame the same. The selection, in pursuance to such a criteria, cannot sustain. In support of this contention, counsel for the petitioner has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Dr. Krushna Chandar Sahu and others Versus State of Orissa and others, 1995 (6) SCC 1. He further contends that the selection criteria cannot be changed once the process of selection is in midstream. In support of this contention he places reliance upon the judgments of the Hon'ble Supreme Court in Mohd. Sohrab Khan Versus Aligarh Muslim University and others, 2009 (4) SCC 555, Rakhi Rey and others Versus The High Court of Delhi and others, 2010 (2) SCC 637 and a Single Bench judgment of this Court in Dr. (Mrs.) Sangeeta Versus State of Punjab and others, 2010 (4) SCT 465. His contention is that five marks have been given intentionally to respondent No. 3 in the interview to select him and petitioner has been granted lower marks in the interview, which is not permissible as this has adversely affected the chances of the petitioner of selection and he has been ousted from that zone. Accordingly, prayer has been made for setting aside the selection of respondent No. 3 and directing the respondents to re-conduct the selection.
Counsel for respondents contends that the selection criteria was laid down by the competent authority, i.e. respondent No. 1, prior to the written test and, therefore, it cannot be said that the selection criteria has been CWP No. 5522 of 2011 -5- changed when the selection process had started. As the criteria has been laid down by the appointing authority, which is the competent authority to lay down the same, the contention of the petitioner that the criteria has been laid down by incompetent authority is not sustainable. She further contends that there are 80 marks for the written test, 5 marks for experience and publication, 5 marks for rural background and only 10 marks for interview, therefore, the marks assigned for interview is only 10%, which is in consonance with the judgment of the Hon'ble Supreme Court and, therefore, it cannot be said that excessive marks have been kept for the interview. The marks assigned to the candidates by the committee at the time of interview are on the basis of experience, performance and knowledge, which cannot be said to be arbitrary. She accordingly contends that the present writ petition deserves to be dismissed.
I have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case.
The basic contention of the counsel for the petitioner is that the criteria has not been laid down prior to the commencement of the selection process and that the criteria, if any, which was laid down, was not by the competent authority.
This case came up for hearing on 22.1.2013 when the following order was passed :-
" Counsel for the petitioner states that the criteria which has been reproduced in para 18 of the written statement was not decided upon prior to the initiation of the selection process.CWP No. 5522 of 2011 -6-
Counsel for respondents is directed to produce the original record of the proceedings of the Committee, vide which the criteria was finalized for selection to the post of Medical Officer (Dental) was laid down.
Adjourned to 30.1.2013."
In pursuance to the said directions issued by this Court, the original records were produced by the respondents in Court and on consideration thereof, on 30.1.2013 the following order was passed :-
" In compliance of the order passed by this Court dated 22.1.2013, respondents have produced the criteria which was laid down by the Selection Committee for going about the selection to the post of Medical Officer (Dental).
A perusal of the record produced would reveal that the decision was taken by the Committee laying down the criteria on 24.5.2010. This date is prior to the written test which was held on 15.7.2010 and thereafter the objection as being raised by the counsel for the petitioner with regard to the criteria having been changed mid- stream during the selection, cannot be accepted.
At this stage, counsel for the petitioner submitted that neither the statutory rules or the instructions which are applicable to the Department of Health nor the Appointing Authority laid down any criteria or delegated the power to lay down the criteria upon the Selection Committee.
These are not a part of the pleading but require response from the respondents.
Accordingly, a direction is issued to the respondents to file a specific affidavit, detailing therein, the jurisdiction and power of the Selection Committee to lay down the criteria of selection. It is also to be CWP No. 5522 of 2011 -7- specified as to under what authority such a criteria was laid down by the Committee in the absence of statutory rules.
Needful be done within a period of four weeks.
List for further consideration on 6.5.2013.
A copy of this order be given to the State counsel under the signatures of the Bench Secretary."
In compliance to these directions, an affidavit dated 6.5.2013 of Dr. Ashok Nayyar, Director, Health and Family Welfare, Punjab-respondent No. 2 has been filed in Court wherein it has been stated in paras-2 and 3 as follows :-
"2. That at the very outset it may be clarified here that the criteria for selection was framed by State Government and not by the selection committee. It is also incorrect to suggest that no specific criteria were framed for selection.
3. That the Principal Secretary, Health and Family Welfare, vide order dated 24.6.2010 issued instructions with regard to the criteria for recruitment to the post of Medical Officer (Dental) and others. A copy of the order dated 24.6.2010 is attached herewith as Annexure-R-1. That a perusal of the order dated 24.6.2010 would clarify that the mandate for selection was laid down by the appointing authority and it cannot be said by any stretch of imagination that the selection committee had framed the rules for recruitment or that they had any jurisdiction or delegation to this effect."
In the light of the above, it is clear that the criteria for recruitment to the post of Medical Officer (Dental) was laid down by the appointing authority, i.e. the Principal Secretary, Health and Family Welfare, Punjab, vide CWP No. 5522 of 2011 -8- order dated 24.6.2010, which was much prior to the date of written test, which was to be held on 25.7.2010 and was finally held on 8.8.2010. The arguments thus, raised by the counsel for the petitioner based upon the judgments passed by the Hon'ble Supreme Court in the cases of Dr. Krushna Chandra Sahu, Mohd. Sohrab Khan, Rakhi Rey and Dr. (Mrs.) Sangeeta (supra) would not be applicable to the facts of the present case as in those cases, the criteria was changed mid-stream during the selection and the said criteria was laid down by incompetent authority.
As regards the contention of the counsel for the petitioner that interview marks are excessive, the same also carries no weight as the marks assigned for the interview is only 10% of the total marks fixed for the selection, i.e. 80 marks for written test, 5 marks for experience and publication and 5 marks for rural background and 10 marks for interview.
As regards the grant of interview marks to the candidates by the selection committee, suffice it to say that the same is depending upon the performance of a candidate at the time of interview, which according to the respondents, have been assessed and granted by the interview committee established by the Government on the basis of knowledge, experience and documents produced by them, which cannot be said to be unreasonable or arbitrary.
In view of the above, finding no merit in the present writ petition, the same stands dismissed.
(AUGUSTINE GEORGE MASIH) JUDGE 6.5.2013 sjks