Punjab-Haryana High Court
The Secretary vs Varinder Kumar And Others on 31 October, 2012
Author: A.K. Sikri
Bench: A.K. Sikri, Rakesh Kumar Jain
LPA No. 300 of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No. 300 of 2012 (O&M)
Date of Decision : 31st October, 2012
The Secretary, Punjab State Power Corporation
Limited, The Mall Road, Patiala (Punjab).
...Appellant
Versus
Varinder Kumar and others
...Respondents
CORAM: HON'BLE MR. JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Aman Sharma, Advocate,
for Mr. Rupinder S. Khosla, Advocate,
for the appellant.
Mr. M.S. Virk, Advocate,
for respondent No. 1.
Mr. J.S. Puri, Additional Advocate General, Punjab,
for respondent No. 2.
Mr. Girish Agnihotri, Senior Advocate,
with Mr. Arvind Seth, Advocate,
for respondent No. 3.
****
A.K. SIKRI, C.J.
The appellant herein had invited applications to fill up the post of Sub Station Attendant by issuing advertisement in this behalf. As an aspirant for this post, the respondent herein also responded to the said advertisement and applied for the post under 'Outstanding sports quota persons'. It is not in dispute that certain posts were earmarked and reserved under the sports quota. The respondent was allowed to appear in the written test under the said quota. When the result was declared, the respondent emerged on the top of the merit list in the category of sports persons. He was, accordingly, asked to LPA No. 300 of 2012 (O&M) -2- appear before the Selection Committee on 22.09.2010 at 9.00 AM alongwith the certificates. The respondent duly appeared before the said Committee on the assigned date. However, the candidature of the respondent was rejected on the ground that he had secured less than 50% marks in his Diploma Course done in Electrical Engineering.
2. The petitioner approached this Court invoking extra- ordinary original jurisdiction under Article 226 of the Constitution of India by filing writ petition which has been allowed by the learned Single Judge vide judgement dated 26.08.2011, holding that the respondent had secured 50.97% marks in the said Diploma Course and was, therefore, eligible to be considered for the appointment to the post of Sub Station Attendant. Direction was, accordingly, issued to the appellant herein to consider the case of the respondent for appointment to that post against the vacancy which was still lying vacant within a period of one month from the date of receipt of the order.
3. Naturally, the appellant has not accepted this order and it still maintains that the marks obtained by the respondent in Diploma in Electrical Engineering are less than 50%. Because of this, the appellant has filed the present appeal, challenging the direction given by the learned Single Judge in the impugned judgement.
4. It is not in dispute that as per the eligibility conditions prescribed for appointment to the post of Sub Station Attendant, 'Diploma in Electrical Engineering with 50% marks' is prescribed as LPA No. 300 of 2012 (O&M) -3- a requisite educational qualification. The prescription, in this behalf, reads as under:-
"ITI/Electrical with minimum 50% marks and two years apprenticeship experience in the PSEB.
Or Diploma in Electrical Engineering with 50% marks.
Or Diploma in Electronics and Communication with 50%.
Or Diploma in instrumentation and process control with 50% marks.
Knowledge of Punjabi.
The candidates must have passed Punjabi at least upto Matric standard by last date of receipt of application (relaxable in case of November, 1984 riots attached Sikh Migrant candidates to that extent of 2 years w.e.f. date of joining this post."
5. At the outset, we would like to point out that the learned Single Judge was not right in taking into consideration the total marks of 2447 out of 4800 marks obtained by the respondent in the said Diploma Course to come to the conclusion that the respondent had secured 50.97% marks. How the marks are to be calculated is provided in the Examination Rules framed by the Punjab State Board of Technical Education and Industrial Training, Chandigarh (hereinafter referred to as the Board). Not only this is known to every student/candidate who joins this Course, the appellant is supposed to adhere to these Examination Rules, while calculating the percentage of marks.
LPA No. 300 of 2012 (O&M) -4-
6. The respondent secured 2447 marks out of 4800 marks in the various papers of Diploma Course in Electrical Engineering. 2447 marks out of 4800 marks calculate to 50.97% marks. Calculated in this manner makes the respondent qualified for this post. The reason for rejecting the candidature of the respondent was that the calculations are to be done as per the Examination Rules of the Board. As per these Rules, 25% marks in the first and second semesters, 50% marks in the third and fourth semesters and 100% marks in the fifth and sixth semesters are to be taken into account to determine the division in which a candidate is placed for award of diploma. Relevant portion of Rule 26 of the Examination Rules is to the following effect:-
"26. AWARD OF DIVISION FOR COURSES OTHER THAN PHARMACY COURSE:
In order to determine the division in which a candidate be placed for the award of diploma, the following percentage of marks in different examinations shall be taken into account:-
A) SEMESTER SYSTEM COURSES
Sr. Examination 3 years course 4 years course Post
No. diploma
course
1 1st Semester 25% 25% 100% as per
evaluation
scheme
2 2nd Semester 25% 25%
3 3rd Semester 50% 25%
4 4th Semester 50% 25%
5 5th Semester 100% 50%
6 6th Semester 100% 50%
7 7th Semester - 100%
8 8th Semester - 100%
LPA No. 300 of 2012 (O&M) -5-
B) ANNUAL SYSTEM COURSES
XXXXXX
(i) 70% of marks, shall be placed in the first division with Honours, provided he passes all the examinations in the first attempt.
(ii) 60% or more but less than 70% of the marks, shall be placed in the first division and
(iii) Less than 60% marks shall be placed in second division."
7. The appellant, applying the aforesaid Rule, calculated the percentage and division obtained by the respondent in the various semesters of Diploma Course in Electrical Engineering as under:-
Examination Marks Secured Total marks 1st and 2nd Semesters 221 400 (25%) 3rd and 4th Semesters (50%) 403 800 5th and 6th Semesters 756 1600 (100%) Total 1380 2800
8. It is clear from the above that when the total marks secured by the respondent in all the six semesters are to be taken into consideration, the percentage comes to 50.97% (2447/4800). On the other hand, if the percentage is to be calculated as per Rule 26 of the Examination Rules framed by the Board, it comes to less than 50% (1380/2800). Since the appellant calculated the marks as per the aforesaid Examination Rules, it declared the respondent ineligible for the post. This manner of calculation of the percentage by the appellant cannot be faulted with as the same is in consonance with LPA No. 300 of 2012 (O&M) -6- the relevant Examination Rules.
9. However, the contention of the respondent in the writ petition was that Rule 9 of the Punjab State Electricity Board Rules, did not specify any minimum percentage of marks in the Diploma Course. Rule 9 of the Punjab State Electricity Board Rules reads as under:-
"(i) Matriculation passed or equivalent qualification from a recognized University/Board and
(ii) Electrician/certificate in National Apprenticeship in Switch Board Attendant."
10. It was, thus, argued that there was no mention of minimum percentage of marks in the Diploma Course. Such a requirement, therefore, could not be prescribed in the advertisement. It was also argued that the selection was based on the written test alone and in this written test the respondent had triumphed securing first position in the merit list of sports quota. It was also argued that even otherwise, as per advertisement, the qualification for the post of Sub Station Attendant was Diploma in Electrical Engineering with 50% marks and it was not stated in the advertisement that these marks are to be calculated as per the Examination Rules of the Board. Thus, the respondent fulfilled the educational qualification as per advertisement as well.
11. The aforesaid contentions of the respondent herein have been found convincing by the learned Single Judge. In the impugned judgement, it is held that when the criteria was fixed by the Rules, another yardstick could not be adopted by the respondents, namely, LPA No. 300 of 2012 (O&M) -7- prescribing 50% marks in Diploma Course which was not the requirement under the Rules. The learned Single Judge drew support from the judgement of this Court in Dr. Mukesh Kumar and another Vs The State of Punjab, CWP No. 3468 of 1998, decided on 30.11.1998 and Dr. Krushna Chandra Sahu and others Vs State of Orissa and others (1995) 6 Supreme Court Cases 1.
12. In order to understand the rationale behind the judgement of the learned Single Judge and the manner in which dicta of the aforesaid judgements has been applied, we would like to reproduce the discussion in the impugned judgement in the words of the learned Single Judge itself:-
"Only five candidates were called for interview/verification of the documents against five posts and inspite of six posts in sports quota, the case of the petitioner was not considered for appointment. In Dr. Mukesh Kumar's case (supra) it has been observed that by fixing the criteria the petitioners in that petition were deprived of their legitimate right on the vacant post of scheduled castes as minimum marks were fixed by the Commission by adopting their own method which was unknown to the advertisement as well as to the candidates and the petition was allowed and the respondent Commission was directed to recommend the names of those scheduled caste candidates who appeared for viva voce for the purpose of appointment. In Dr. Krushna Chandra Sahu and others Vs State of Orissa and others (1995) 6 Supreme Court Cases 1, it has been held that the members of selection board or the selection committee have no jurisdiction to lay down the criteria for selection unless they have been authorized specifically by the Rules made under Article 309 of the Constitution of India. The judgement in P.K. Ramachandra Iyer Vs Union of India (1984) 2 SCC 141 was relied wherein it was observed as under:-
"By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be LPA No. 300 of 2012 (O&M) -8- read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm."
In the present case also, new method of calculation of percentage has been adopted by the Selection Committee which is neither part of the advertisement nor as per rules and moreover that method is also not known to the system also. How the percentage of marks has been calculated is totally new to the system as the petitioner has secured 2447 marks out of 4800 marks which comes to 50.97% and the petitioner cannot be held ineligible for appointment to the post of Sub Station Attendant. The selection was to be done only on the basis of written test which the petitioner has qualified and was on the top of the merit list in the category of sports quota. It has not been proved by the respondents from any document that there was concealment on the part of the petitioner or some misrepresentation was made. Subsequently, at a later stage, which was at the time of issuing appointment letters, all of a sudden, the criteria was disclosed to the petitioner which cannot be accepted, at this stage."
13. The learned Single Judge also noted that these posts were meant for sports category candidates out of which five posts were filled up and one is still lying vacant. The selection was made only on the basis of written test which the respondent had qualified with distinction securing first position in the merit meant for sports category candidates and, therefore, this post be offered to him.
14. The next question, in these circumstances, that arises for consideration is as to whether there could be prescription of 50% marks in Diploma Course in Engineering when Rules do not stipulate any such percentage. We are of the opinion that the answer given by the learned Single Judge in the impugned judgement is in accord with the legal position and does not call for a different approach. Rule 9 of the Punjab State Electricity Board Rules has already been LPA No. 300 of 2012 (O&M) -9- extracted above. It requires passing of Matriculation or equivalent qualification (which is Diploma in Electrical Engineering in the instant case). As specifically stated by the appellant, this is only an educational qualification, which makes a candidate eligible to compete for the post. In so far as the selection to the post is concerned, that is entirely dependent on the merit in the written test. No doubt, under certain situations, a higher qualification than prescribed in the Rules can be stipulated. However, those are the cases where candidates applying for the post may be very large in numbers and generally the interview is the mode of selection. In such cases, filtration is permissible by prescribed higher standards. That is not the situation in the instant case.
15. Therefore, we do not find any justification in prescribing minimum 50% marks in Diploma in Electrical Engineering and the ratio of Dr. Krushna Chandra Sahu and others' and P.K. Ramachandra Iyer's cases (supra) would be directly applicable.
16. For these reasons, the directions contained in the impugned judgement are upheld leading to the dismissal of the present appeal.
(A.K. SIKRI) CHIEF JUSTICE (RAKESH KUMAR JAIN) JUDGE 31st October, 2012 Amodh