Punjab-Haryana High Court
Tarun Arora And Others vs State Of Haryana And Others on 21 December, 2013
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CWP No. 12065 of 2013 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Date of Decision: December 21, 2013
1. CWP No. 12065 of 2013
Tarun Arora and others
.....Petitioners
Vs.
State of Haryana and others
.....Respondents
2. CWP No. 24536 of 2013
Neeraj Dahiya
.....Petitioner
Vs.
State of Haryana and others
.....Respondents
3. CWP No. 25225 of 2013
Vikas Dahiya
.....Petitioner
Vs.
State of Haryana and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Gupta Sanjay
2014.01.14 14:05
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CWP No. 12065 of 2013 [2]
Present:- Mr. Manohar Lall, Advocate for the petitioners in
CWP No. 12065 of 2013.
Ms.Anu Chatrath Kapur, Advocate for the petitioner in
CWP No. 24536 of 2013.
Mr.K.C. Rajput, Advocate for the petitioner in
CWP No. 25225 of 2013.
Mr. R.D. Sharma, DAG, Haryana.
Mr. R.K. Malik, Sr. Advocate with
Mr. Sangram Malik, Advocate
For respondents No. 3,5 to 7, 9 to 15 and 17 to 19.
-.-
M.M.S. BEDI, J.
This order will dispose of three petitions bearing CWP Nos. 12065, 24536 and 25225 of 2013. All the cases have been taken up simultaneously for decision as common question of law and fact arises for adjudication.
All the petitioners seek to quash the selection of the private respondents made to the posts of System Officer pursuant to advertisement No.1 of 2010 made by Haryana Staff Selection Commission on the same grounds. The petitioners have challenged the selection of respondents No.3 to 19 against the posts of System Officer on the grounds that the selection has been made without fixing criteria at initial stage and appointing private respondents No.3 to 19 despite the fact that they did not fulfill the eligibility conditions of experience which was prescribed in advertisement No.1 of Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [3] 2010 made by respondent No.2 vide notification dated June 21, 2007 (annexure P-11).
Brief facts relevant for the adjudication of the present petitions are that the petitioners in Tarun Arora's case claim that they have obtained B.E. Degree in Computer Science/ MCA with first Division. They had applied for the posts of System Officer earlier and were given appointments on contract basis at a fixed salary. A copy of the appointment letter of petitioner No.1, indicating that he joined in January 2010 as System Officer in HUDA, Panipat, has been appended with the petition as annexure P-1. It is claimed that similar appointment letters were issued to petitioners No.2 to 6 also. The contractual period of petitioners was extended for another one year or till the regular appointment was made on the same terms and conditions till January 2012 vide appointment letter dated January 19, 2011 giving extension to the petitioners. A copy of the extension letter has been appended with the writ petition as annexure P-2. Vide memo dated March 19, 2012, fresh appointment letter was issued to petitioner No.1 engaging him as System Officer purely on contract basis for a period of one year till January 22, 2013 on fixed monthly remuneration of Rs.14595/-. The other petitioners were also issued similar letters. On expiry of contractual period on January 22, 2013, the petitioners were further given extension for one year giving a break of three days from January 28, 2013 to January 27, 2014 or till the regular appointments were made by Haryana Staff Selection Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [4] Commission whichever was earlier, on the same terms and conditions. Salary, however, was increased to Rs.15325/-.
Respondent No.2 advertised 23 posts of System Officers against category No.15 vide advertisement No.1 of 2010. A copy of the advertisement published in the Tribune dated March 12, 2010 has been appended with the petition as annexure P-5. The relevant portion of the advertisement giving break up of 23 posts and the essential qualifications, pay scale etc. reads as follows:-
Category No.15 23 posts of System Officer (Gen = 13, SC = 3, BCA=2, BCB=2, ESM GEN=1, ESM SC=1, ESM BC=1) EQ: (i) BE (Computer Science)/ MCA with first division and 2 years of software development experience in Govt./ Semi Govt./ Ltd. Organisation.
ii) Hindi/ Sanskrit upto Matric Standard. Pay Scale Rs.7450-11500/-
Age: 17-40 years."
The advertisement contained special instructions appended to the advertisement which are as follows:-
"The prescribed essential qualification does not entitle candidate to be called for interview. The commission may shortlist the candidates for interview Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [5] by holding a written examination or on the basis of a rationale criterion to be adopted by the Commission. The decision of the Commission in all matters relating to acceptance or rejection of an application, eligibility/ suitability of candidates, mode of, and criteria for selection etc. will be final and binding on the candidates. No inquiry or correspondence will be entertained in this regard."
The petitioners applied for the posts of System Officer in compliance with the advertisement dated March 12, 2010 (annexure P-5) through proper channel. The petitioners claimed that they had 2 years experience as Software Developer well before the date of submission of applications for the posts of System Officer. The petitioners have appended copies of their experience certificates as annexure P-6 (colly). The petitioners claimed that no criteria was provided in the advertisement for short-listing the candidates for interview and no written test was taken and as such the petitioners were unaware of any criteria adopted by respondent No.2 for making selection on the posts of System Officer. The petitioners were called for interview in the month of December 2010 and were interviewed by different Selection Committees. Petitioners claimed that they were asked their names, father's name and some questions like how to connect the data base to sql-server? What is difference between RAM and ROM and what is system programme etc. The allegations of the petitioners Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [6] are that interview was conducted by two member Committee out of which one was from Haryana Staff Selection Commission and other one was from HUDA. Mr.Ashok Jain, HSSC and Mr. Sanjay Sharma, GM, IT, HUDA were the members of Selection Committee in most of the cases. The petitioners claimed that criteria for short-listing the candidates or the marks prescribed for educational qualification or interview were not made known to the candidates in the advertisement or by way of issuance of subsequent corrigendum. The criteria adopted by the Commission was made known to the candidates alongwith the declaration of result on April 23, 2013 in which following criteria was adopted for selection:- "i) Academic marks: 50 ii) Marks obtained in the viva voce 25
out of.
Total Marks: 75"
The copy of the result dated April 23, 2013 appended with the petition as annexure P-7 reflects the result of Drivers, System Officers, Data Entry Operators and steno-typists. Petitioners claimed that same criteria was adopted for the selection of all the said posts by respondent No.2 and that the result has been declared after 2 years and four months from the date of interview i.e. December 2010. After declaration of result, the recommendations were sent to HUDA and HUDA prepared list of selected candidates for the posts of System Officer as per their merit. A copy of the select list has been appended with the petition as annexure P-8. Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [7]
Petitioners have pleaded that Subordinate Services Selection Board was created under Article 309 of the Constitution of India by Governor of Haryana and as per the notification, function of the Board was to make appointment to non-gazetted Class III posts under Haryana Government except appointments of officers and employees of Punjab and Haryana High Court, vide notification dated January 28, 1970 (annexure P-
9). Vide notification dated December 9, 1997, the words "Subordinate Service Selection Board" were substituted by Haryana Staff Selection Commission. Thereafter vide notification dated July 28, 1998, sub para (d) of Para 6 was substituted according to which the Commission was empowered to devise the mode of selection and fix the criteria for selection of posts for which requisition is sent to it by a department and by an office, as it may deem appropriate and the criteria for selection of posts fixed earlier by the Board/ Commission was to be deemed to have been fixed under the above sub paragraph. Copy of the notification dated December 9, 1997 has been appended with the petition as annexure P-10. The petitioners claimed that the Commission was required to fix the criteria and mode of selection and to publish the same alongwith the advertisement. In support of said averment, sub-para 4 of the notification dated June 21, 2007 has been relied upon which was substituted w.e.f. April 21, 2007. The said para reads as follows:-
Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [8]
"In paragraph 6, for clause (d), the following clause shall be substituted and shall be deemed to have been substituted w.e.f. 10th January, 2006, namely:-
(d) Methods of recruitment and the principles to be followed in making appointments to the group 'B', 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 sent to it by a department or an offence, 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 clause."
The petitioners claimed that instead of 9 members, there were only 5 members in the Commission as such the constitution of Commission is against mandate given vide notification dated June 21, 2007 and it is for that reason that the mode of selection and criteria for awarding marks in academic and in viva voce were not disclosed in the advertisement and was disclosed only at the time of declaration of result. Petitioners claimed themselves to be most suitable candidates having been wrongly ignored by the Commission despite they having gained experience of 5 years in HUDA. Petitioners claimed that policy of pick and choose was adopted by the Commission and ineligible candidates with less experience were selected. Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [9] The petitioners pleaded that the following respondents have been selected without experience certificate:-
"i) Rakhi Sharma, respondent No.3: Her experience certificate is dated 17.7.2012 and the experience narrated in that certificate was from 12.7.2010 to 22.6.2012; whereas, the last date of submission of application was 12.4.2010.
ii) Anoop Singh (respondent No.5): His experience certificate was issued by the Excise and Taxation Department on 20.12.2010 well after the date of interview. So it is clear that this experience certificate was procured one.
iii) Ms. Kamna (respondent No.7): Her certificate dated 10.4.2010 was not issued by any private limited company which was the condition precedent in the advertisement.
iv) Vijay Shankar (respondent No.8): His experience certificate dated 29.2.2008 pertains to the dates from 2.5.2007 to 29.2.2008 depicting his experience as software developer which fell short of two years and this certificate was not issued by any private limited company. Another experience certificate dated 1.10.2010 was also produced Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [10] which shows his experience as Software Engineer.
Moreover, this certificate was produced after the last date of submission of application.
v) Anju Gupta (respondent No.9): He also procured his experience certificate on 31.3.2013 and no other experience certificate was available on record prior to 12.4.2010.
vi) Ms. Sarita (respondent No.11): She procured the desired experience certificate on 27.12.2010 fraudulently meaning thereby this certificate was not available on record on the last date of submission of applications i.e. 12.4.2010 and even at the time of interview.
vii) Mukesh Rani Kundu (respondent No.12): Her experience certificate was dated 24.12.2010 which was produced after the date of interview. Her certificate pertains to having experience as Programmer and not as software developer.
viii) Devi Person (respondent No.13): He was not eligible for the post of System Officer as he did not possess the requisite two years experience in software development. Moreover, his experience shown in the certificate was that of a Programmer. Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [11]
ix) Vikas Panghal (respondent No.14): His experience certificate is dated 3.10.2011 when all the process of selection was over. It is submitted that the certificate produced by him was of having experience as Software Engineer and not in software development."
It has been pleaded that petitioner No.6 belongs to reserved category and she possesses essential qualification alongwith 2 years experience in software development whereas respondents No.17, 18 and 19 who, though belong to Scheduled Castes category but did not possess 2 years experience in Software Development as such they were not eligible for the post of System Officer. Their experience certificates are dated July 31, 2012, December 22, 2010 and December 23, 2010. Petitioner No.3 Hardeep Singh claims that he applied against reserved post meant for BCA category and fulfilled all the conditions including 2 years experience in Software Development but he was ignored by the Commission and respondent No.16 Subhash Malik was selected wrongly under the category of BCA (DESM) whereas the post of BCA (DESM) was not advertised. Petitioners claimed that they had applied to the Commission under the Right to Information Act, 2005 for supplying the details of the selected candidates i.e. qualifications of candidates, their experience certificates, criteria adopted by the Commission and details of the marks sheets of the candidates who appeared in the interview but the information has not been Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [12] supplied. The petitioners have made reference to the observations made in a judgment in CWP No. 15656 of 2010 wherein the selection of PTIs was set aside by a Coordinate Bench of this Court on the ground that the criteria mentioned in the advertisement could not have been changed once the process of selection had started.
On notice having been issued to the respondents, the fact regarding eligibility conditions prescribed in the advertisement has been admitted. It has been disclosed that last date of receipt of application and determination of eligibility was prescribed as April 12, 2010 and 478 candidates were called for interview and 282 candidates appeared for interview. The Commission after following suitable criteria dated April 12, 2010 (annexure R-2/1) finalized the selection and marks of the petitioners under criteria are as follows:-
S. Name & Roll Category Marks of the Marks of No. Nos. of the petitioner the last petitioner selected candidate in his category.
1. Tarun Arora, General 42.85 52.50 Roll No.464
2. Krishan Kumar General 44.12 52.50 Sapra Roll No.28
3. Hardeep Singh BCA 40.02 52.20 Roll No. 285 Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [13]
4. Ms. Meenu Roll General 42.92 52.50 No.405
5. Ajay Sharma, General 42.50 52.50 Roll No.377
6. Ms. Mamta, SC 40.36 51.59 R.No.41 The petitioners on the basis of over-all performance could not make a grade in the selection. Respondents No.3 to 19 obtained more marks than the petitioners in their respective category and they were rightly selected being meritorious candidates. The Commission has taken up the plea that the petitioners having already appeared in the interview are estopped from challenging the process of interview. So far as notification dated January 28, 1970 is concerned, the Commission has claimed that as per para 6 (d) of the notification the Commission had fixed selection criteria on April 12, 2010, annexure R-2/1 in accordance with the conditions of advertisement. It is pleaded that vide judgment dated May 23, 2001 in CWP No. 15885 of 2000- Jawahar Lal Goyal Vs. State of Haryana and others, in Review application No. 2011 of 2001 in the said petition, after going through the relevant para 6 (d) of Haryana Government notification dated January 28, 1970, it has been held that Commission had the power to fix the criteria which they had done and published for general information and that the right of Commission to fix the method of selection cannot be challenged since Commission is entitled to fix its own method or criteria to judge the suitability of the candidates for selection. The selection criteria dated April Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [14] 12, 2010 has been made applicable uniformly to all candidates including the petitioners as such the selection is fair and justified. So far as experience of the private respondents is concerned, as per the reply of respondent No.1 and 2, the private respondents fulfill the conditions of experience. The reply in context to selected candidates regarding their experience as pleaded by respondents No.1 and 2 is as follows:-
Name and Roll Name of the Period of Remarks No. Organization exp.
Rakhi Sharma, ITTI, Jan. 2007 to The applicant did
Roll No. 94 Bangalore 15.3.2010 (3 not claim/ attach
(Respondent dt.15.3.2010 years 2 the exp. of
No.3) months, 7 motherson Sumi
days) Infotech & Designs
Ltd., Noida
(annex.P-12)
Gupta Sanjay
2014.01.14 14:05
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CWP No. 12065 of 2013
[15]
Anup Singh, Dy.Excise & 14.5.2007 to Attached exp.
R.No.344 Taxation 9.4.2010 (2 certificate dt.
(respondent Hisar, dated years 11 9.4.2010 but no
No.5) 9.4.2010 months) salary was
mentioned in this
certificate which
was got completed
subsequently by
letter dt.
20.12.2010
(annexure P-13).
Ms. Kamna, Roll Xorient Sept.2007 to The exp. is of Ltd.
No. 225, Technologies April 2010 (2 Organization which
Respondent No.7 Pvt. Ltd., years 6 is valid as per
New Delhi, months) condition of Advt.
dated annexure P-14 is a
10.6.2010 letter of reliving
and it has no
bearing with the
experience.
Gupta Sanjay
2014.01.14 14:05
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CWP No. 12065 of 2013
[16]
Vijay Shankar, Atom 10.3.2008 to In the exp. the date
Roll No. 383 Technologies 30.9.2010 (2 of last working was
Respondent No.8 Ltd.,Mumbai years, 6 not mentioned.
months) Hence, he got
completed this
deficiency on
1.10.2010
subsequently.
Hence the
experience of Spiel
Studios Annexure
P-15 has no
bearing.
Anuj Gupta, Roll Secretariat 1.12.2006 to Exp. is valid on the
No. 14, for 8.4.2010 (3 cut off date.
Respondent No. 9 Information years 4 Annexure P-16 not
Technology, months) attached with
Haryana, application form
Govt. dated and it has no
8.4.2010 bearing with the
experience.
Gupta Sanjay
2014.01.14 14:05
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CWP No. 12065 of 2013
[17]
Sarita, Roll No. Distt. 23.10.2006 to In the exp. there
122, Respondent Primary 31.3.2010 (3 was no mention of
No.11 Education years 4 salary which was
Officer, months) got completed
Jhajjar, dated subsequently on
31.3.2010 27.12.2010.
Therefore, the exp.
is valid on the cut
off date.
Mukesh Rani Zenith 1.8.2006 to Exp. is valid on the
Kundu, Roll No. Computer 2.8.2008 (2 cut off date.
26, Respondent Ltd., New years) Annexure P-18 is
No.12 Delhi, dated not attached and
9.9.2008 has no bearing.
Gupta Sanjay
2014.01.14 14:05
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CWP No. 12065 of 2013
[18]
Devi Parson, Roll i) Secretariat 1.10.2008 to Exp. is valid on the No. 185, for 8.4.2010 (1 cut off date as Respondent Information year 6 Computer No.13 and months) Professional for Technology, maintenance of Haryana Software. Thus Govt. dated annexure P-19 has 8.4.2010 no relevancy.
ii) 11.9.2003 to
HARTRON 30.9.2008 (5
Informatics years)
Ltd., dated
13.4.2010
Vikas Panghal, Patni 7.4.2008 to Exp. is valid on the
Roll No. 466, Computer 22.12.2010 cut off date.
Respondent Systems (2 years) Annexure P-20 not
No.14 Ltd., Noida, taken into attached and has no
dated account up to bearing.
25.3.2010 12.4.2010
(cut off date)
Gupta Sanjay
2014.01.14 14:05
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CWP No. 12065 of 2013
[19]
Rakesh Kumar, Secretariat 4.7.2006 to Exp. is valid on the
Roll No.277, for 4.2.2010 (3 cut off date.
Respondent Information years 6
No.17 Technology, months)
Haryana
Govt. dated
4.2.2010
Renu Poriye, Roll i) University 7.11.2007 to Exp. is valid on the No. 68, College, 27.3.2008 (4 cut off date.
Respondent No. Kurukshetra months)
18 dated
22.12.2010.
ii) Ansal May 2008 to
Institute of May 2008 (1
Technology, year 1 month)
Gurgaon,
dated
23.12.2010.
iii) Bharat 2.6.2009 to
Gears Ltd. 9.4.2010 (9
dated months)
9.4.2010
Gupta Sanjay
2014.01.14 14:05
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CWP No. 12065 of 2013
[20]
Minaxi Roll No. My Info 8.6.2007 to Exp. is valid on the
369, Respondent Services (P) 12.4.2010 (2 cut off date. No.19. Ltd., New years 8
Delhi, dated months), 23.12.2010 (calculated up to cut off date) In CWP No.25225 of 2013, Vijay Dahiya Vs., State of Haryana and others, the petitioner has claimed that he has worked as Senior Technical Support Officer with Hindustan Computers Limited at New Delhi and that the private respondents have been selected without having two years experience in Software Development. He has challenged that the criteria disclosed at the time of declaration of result has prescribed interview marks which are more than 50% of the marks prescribed for academic qualifications. He claims that prescribing more than 15% marks for viva- voce or interview is unreasonable and violative of Articles 14 and 16 of the Constitution of India. He has relied upon the judgment of Munindra Kumar and others Vs. Rajiv Govil and others, (1991) 3 SCC 368.
Petitioner Neeraj Dahiya in CWP No. 24536 of 2013 has also challenged the selection of private respondents as System Officers on the ground that it is violative of Articles 14 and 16 of the Constitution of India. He has alleged that all the private respondents did not have experience of two years on the date of interview which were held from December 21, Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [21] 2010 to December 24, 2010. He has quoted the instances of respondent No.4-Rakhi Sharma, respondent No.9 Devi Parson, respondent No.11- Mukesh Rani Kundu claiming that they did not have 2 years experience on the date of the interview.
The above said two petitions were ordered to be heard alongwith the case of Tarun Arora's case.
Mr.Manohar Lall, Mr.K.C. Rajput and Ms.Anu Chatrath Kapur, appearing for the petitioners have vehemently argued that the selection criteria had not been laid down before the selections and it has been changed/ adopted during the course of selection to select the private respondents arbitrarily. Another ground to challenge the selections of private respondents is that the respondents did not possess the requisite experience on the date of interview.
During the course of arguments, the entire record of selection was summoned by this Court and was carefully perused. It transpired from the record of selection that selection was made by three separate Selection Committees at different occasions. A perusal of the record indicates that the Haryana Staff Selection Commission had adopted the following selection criteria for selection to the posts of System Officer:-
"Haryana Staff Selection Commission, Panchkula. Criteria for making selection on the post of System Officer Against Advt. No. 1/2010, Category No. 15, Last date: 12.4.2010.
Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [22]
Total Marks:
75
1. Basic Qualifications: 10 marks Matric/+2 0.10 of the percentage of marks in whichever higher marks have been obtained
2. Essential qualifications: 40 marks BE (Computer Science)/MCA with first division and 2 years of software development experience in Govt./ Semi Govt./ Ltd. organization.
0.40 of the percentage of marks obtained as the case may be.
3. Viva Voce: 25 marks To assess the knowledge of subject, communication skill, general knowledge, general awareness and intelligence.
Member I Member II Member III
(Vinay Sharma) (Vijay Kumar) (Ashok Jain)
Member IV Member V Member VI
(Ram Sharan Bhola) (Tribhuwan Parkash Bose) (Lalit Butana) Member VII (Lal Singh Yadav) Sd/-Chairman.
Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [23]
12.4.2010"
A perusal of the record further indicated that out of 75 marks prescribed for selection, 50 marks pertain to educational qualification which were to be calculated as per the above said criteria and 25% marks were earmarked for viva-voce to assess the knowledge of the subject, communication skill, general knowledge, general awareness and intelligence. The fairness of the selection initially appears to be debatable as 33 ½ % of the total marks prescribed for selection had been kept for viva voce. It appears that the said criteria was capable of being misused for selecting candidates with low academic merit and reject the candidates having high percentage of marks. The record indicated that the petitioners had scored from 31.36 to 36.12 marks out of 50 as academic marks whereas the private respondents had scored the marks between 29.75 to 39.15 in academics. All the respondents have scored between 15 to 22 marks in viva voce whereas the petitioners were able to score 8/9 marks in viva voce. The chart showing details of the petitioners and respondents in CWP No. 12065 of 2013 is as follows:--
Petit Name/ Roll No. Category Academi Viva- Total Marks of i- F.Name c Voce Marks / Last oner marks/50 marks/25 75 Selected No. Candidate in petitioner's category
1. Tarun Arora 000464 General 33.85 9 42.85 52.50 S/o Sh.
Manohar Lal Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [24]
2. Krishan 000028 General 36.12 8 44.12 52.50 Kumar Sapra S/o Darshan Lal Sapra
3. Hardeep 000285 BCA 32.02 8 40.02 52.20 Singh S/o Sh.
Ram Parshad
4. Meenu D/o 000405 General 34.92 8 42.92 52.50 Pardeep Kumar Gupta
5. Ajay Sharma 000377 General 33.50 9 42.50 52.50 S/o Suresh Chand Sharma
6. Mamta D/o 000041 SC 31.36 9 40.36 51.59 Sh. Sohan Lal Resp Name/ Roll No. Category Academi Viva- Total Marks of onde F.Name c Voce Marks / Last nt marks/50 marks/25 75 Selected No. Candidate in petitioner's category
3. Rakhi 000094 General 38.22 17 55.22 52.50 Sharma, D/o Sh.Shiv Kumar Sharma
4. Monia D/o 000375 General 39.15 16 55.15 52.50 Sh. Om Narain Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [25]
5. Anup Singh 000344 General 33.40 21 54.40 52.50 S/o Sh. Raj Pal Singh
6. Mukesh S/o 000026 General 32.13 22 54.13 52.50 Sh. Mange Ram
7. Kamna D/o 000225 General 36.94 17 53.94 52.50 Sh. Ram Phal Sharma
8. Vijay 000383 General 34.60 19 53.60 52.50 Shankar S/o Sh. Sita Ram
9. Anju Gupta 000147 General 31.45 22 53.45 52.50 S/o Sh. Om Parkash Gupta
10. Reetu D/o 000457 General 33.43 20 53.43 52.50 Sh. Roshan Lal
11. Sarita D/o 000122 General 35.22 18 53.22 52.50 Sh. Dharam Pal
12. Mukesh Rani 000236 General 30.95 22 52.95 52.50 Kundu D/o Harikesh Kundu
13. Devi Person 000185 General 36.58 16 52.59 52.50 S/o Sh. Kali Ram Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [26]
14. Vikas 000466 General 33.52 19 52.52 52.50 Panghal S/o Jagbir Singh
15. Pankaj 000152 General 33.50 19 52.50 52.50 Sharma S/o Sh. Yoginder Kumar
16. Subhash 000037 DESM- 33.97 17 50.97 50.97 Malik S/o BCA Daya Nand
17. Rakesh 000277 SC 32.32 20 52.32 51.59 Kumar Son of Nanak Chand
18. Renu Poriye, 000068 SC 31.59 20 51.59 51.59 D/o Mangal Dass
19. Minaxi D/o 00369 SC 30.81 21 51.81 51.59 Ram Kumar It is pertinent to mention that the petitioners have not levelled any allegations of malafide against the members of the Selection Committee and they have also not levelled any allegation that the selection criteria providing 33½ % marks for viva voce is bad or that it has been used to select candidates of lesser merit. No doubt, it is apparent from the record that the petitioners on their low scores in viva voce have not been able to make a mark in the selection.
So far as the experience of the selected candidates is concerned, I have carefully gone through the original record and found that Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [27] the allegations of the petitioners that the private respondents did not possess two years experience are baseless. Mr. Manohar Lall has argued that all the selected candidates have not mentioned the salary in their experience certificates. But a careful perusal of original record indicates that all the selected candidates have specifically mentioned their experience.
I have checked the application forms of each candidate alongwith the annexures appended and found that the selected candidates have requisite experience as pleaded in the written statement. The following questions required to be determined in the present case:-
i) Whether on the basis of the experience certificates, the selection of the private respondents could be said to be unfair?
ii) Whether the criteria of providing 33½ % marks for selection has been misused or is capable of being misused and has been misused to make unfair selections?
REGARDING NON-DISCLOSURE OF CRITERIA AT THE TIME OF ADVERTISEMENT:
I have also checked from the record the date of adopting of criteria. The original record produced by the Commission indicates that on April 12, 2010 the Commission laid down the criteria for making selections for the posts of Drivers, System Officers, Data Entry Operators, steno- typists. I do not find any force in the contention of learned counsel for the Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [28] petitioners that the criteria is adopted just prior to the selection in order to give benefit to the private respondents. EXPERIENCE: ALLEGATIONS REGARDING VIOLATION OF THE CRITERIA OF ELIGIBILITY I.E. EXPERIENCE:
The petitioners had initially challenged the validity of the selection of respondents mainly on the ground that the private respondents did not possess any experience vide advertisement annexure P-5, prescribing 2 years of Software Development experience in Government/ semi Government/ Limited organization would be required alongwith the qualification of B.E. (Computer Science)/ MCA with first Division but perusal of the original record and the original applications of the private respondents reveals that the said respondents had mentioned the experience in their applications and they had also appended certificates. Faced with above said situation having arisen after perusal of the record, counsel for the petitioners has shifted his stand alleging that the salary was also required to be disclosed in the application forms and the experience certificates but this has not been done.
I have considered the said argument and I am of the opinion that the validity of an experience certificate cannot be doubted solely on the ground that the salary received by the candidates is not disclosed. But even otherwise, almost in all the cases, the salary has been disclosed. Even if it is presumed for the sake of arguments that salary has not been mentioned by any candidate, this itself is not a sufficient ground to set aside the selection Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [29] of a candidate on the ground that he or she did not possess the requisite experience. It is always the satisfaction of the Selection Committee or the appointing authority to examine the validity and authenticity of the documents before issuing appointment letter to a candidate. It is settled proposition of law that fraud vitiates all the transactions It is observed that in case the experience certificate of any candidate, on verification is found to be fake or fictitious, it will be open to the appointing authority to cancel the selection and deny appointment letter to the selected candidate. It is, therefore, held that selection of private respondents is not invalid but it is subject to the verification of the authenticity of the documents appended with the application including the experience certificate.
I have also considered the contention of Ms. Anu Chatrath Kapur that the experience of the selected candidates is not in the field of Software Development in Government/ Semi Government/ limited organizations but was in the different fields of software. She had pointed out that certificate of respondent No.6- Vijay Shankar, respondent No.9 Devi Parson, respondent No.10-Vikas Panghal and respondent No.11 Ms.Mukesh Rani Kundu cannot be said to be experience of Software Developer.
I have considered the said contention in context to the experience of the said candidates. The experience of a candidate in the subject of computer can be determined by an expert in the Computer Science. The Court, has got no jurisdiction to enter into the controversy Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [30] whether experience as a programmer or any other post of computer expert can be said to be the Software Development experience or not. It is a settled proposition of law that the Court cannot assumed the jurisdiction as an Appellate Authority to ponder upon the selection made by Committee consisting of expert. A perusal of the record indicates that all the committees consisted of a member from the Haryana Staff Selection Commission alongwith technical expert. In Committees 'A' and 'D'- Rajinder Singh, Assistant GM, HARTRON, in Committee 'B'-Sanjay Sharma, GM IT, HUDA in Committee 'C' Mr. Sanjay Sethi, System Analyst, HARTRON and on December 22, 2010, Mr. Naveen Chaudhary, System Analyst, HARTRON assisted the members of the Commission of Haryana Staff Selection Committee. A perusal of the record reflects that four committees deputed for interviews on December 21, 2010 and December 22, 2010 consisted of technical expert to assist the Commission. It is not the case of the petitioners that different Committees making selections at different times were not capable of determining the actual merit of the candidates or were not able to indulge in fair selection. A doubt may arise regarding the validity of selection by different committees at different times in the absence of any parameters laid down for determining merit pertaining to different trades but since there is no allegation of malafide or nepotism pertaining to any candidate, the selection of the private respondents cannot be held to be vitiated on the ground of adoption of an arbitrary procedure. The Apex Court in Dalpat Abasaheb Solunke and Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [31] others Vs. Dr.B.S. Mahajan and others, AIR 1990 SC 434 observed that High Court cannot sit in appeal over the decision of Selection Committee. Selection requires expertise in the subject which the Court does not possess. The Court can interfere in the selection only under few grounds such as illegality, patent material irregularity in the constitution of Selection Committee or adoption of a procedure which has vitiated the entire selection. In Vijay Syal and another Vs. State of Punjab and others, AIR 2003 SC 4023, it was observed that the Court should not normally interfere with the assessment of marks especially when on the face of it, no apparent malafide appears.
CRITERIA OF SELECTION ADOPTED FOR DETERMINING MERIT:
Though the petitioners have not seriously contested the validity of the criteria in the case pleaded but during the course of arguments, counsel for the petitioners emphasized that the process of selection does not inspire any confidence as the advertisement did not spell out the selection criteria and the criteria which has been obtained indicates that out of 75 marks, 25 marks had been assigned for interview and 50 marks had been assigned for academic qualifications. It was argued that marks assigned for interviews were high and violated the norms set out by the Apex Court in Ajay Hasia and others Vs. Khalid Mujib Sehravardi and others, AIR 1981 SC 487, Ashok Kumar Yadav and others Vs. State of Haryana and others, (1985) 4 SCC 417, Ashok @ Somanna Gowda and others Vs. Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [32] State of Karnataka by its Chief Secretary and others, 1993 (3) SLR 149. In Ajay Hasia's case (supra), in the case of admission to Education institutions, the Court held that reservation of 50 marks for oral interview as against 100 allocated for written test allocated to high percentage i.e. 33 ½ percentage of total marks is not permissible. In Ashok Kumar Yadav's case (supra), allocation of 33 ½ % marks for interview was held to be high.
I have considered the said contention. The above said judgments have been considered by the Apex Court in Kiran Gupta and others Vs. State of UP and others, 2000 (4) RSJ 439 holding that reasonableness of percentage of marks allotted for interview in cases of educational institutions/ schools will not afford a proper guidance in determining permissible percentage of marks in interview in cases of selection/ appointment of posts in various services, the mode of oral interview alone as criteria for selection for appointments/ promotions to any posts, the high percentage of marks for interview cannot be challenged. In Lila Dhar Vs. State of Rajasthan and others, (1981) 4 SCC 159, the ratio of marks allocated for written test and the interview and the ratio of 75:25 was held to be valid by observing as follows:-
"In the case of admission to a college, for instance, where the candidates personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [33] in the written examination. The importance to be attached to the interview-test must be minimal. Therefore, the ratio of the decisions in Minor A. Peeriakaruppan etc. Vs. State of Tamil Nadu and others, 1971 (1) SCC 38 and Ajay Hasia and others Vs. Khalid Mujib Sehravardi and others, 1981 (1) SCC 722, in this regard, cannot be applied in case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied." In view of Lila Dhar's case (supra) and Kiran Gupta's case (supra), I am of the considered opinion that the selection criteria cannot be held to be arbitrary or bad only on the fact that 25 marks have been assigned out of 75 marks for interview. It is not out of place to observe here that the above said criteria is no doubt capable of being misused, the probability cannot be ruled out of awarding higher marks in interview i.e. between 20 to 23, a candidate could be favoured to get high marks out of total of 75 marks and being selected whereas by awarding less than 10 marks in the interview, a candidate scoring highest marks in the academics could be rejected. When excessive marks for interview are prescribed, it sets the Court probing into the records for some dependable proof. In this context reference can be Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [34] made to D.V. Bakshi and others Vs. Union of India, AIR 1993 SC 2374, wherein it was observed as follows:-
"In the matter of evaluation some degree of honest error must be countenanced. However, if there is any allegation of nepotism or favouritism, the same can be checked with reference to the record so maintained. Since the oral test is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is a 'must' or that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into the records or the oral test. But if the allegation is supported by some dependenable proof, the Court will satisfy itself whether or not the charge is well-founded. That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [35] oral test as a whole or qua a candidate, as the case may be. In the present case, however, the allegation is of a general nature and is not supported by even light proof to infer, even prima facie, that the result of the oral test was tainted because of bias. We, therefore, do not see any merit in the contention raised by the petitioners."
It is apt to mention in the present case that there is no allegation of nepotism or favouritism in context to a particular respondent. The suspicion in the minds of the petitioners that the result of the oral test is tainted with bias, has neither been alleged nor established. It is, therefore, held that the criteria providing 50 marks i.e. 10 marks for matric/ +2 calculated as 0.10 of the percentage of marks and 40 marks for B.E. (Computer Science)/ MCA with first division calculated as 0.40 of the percentage of marks obtained and 25 marks for viva voce is capable of being abused as the marks reserved for the oral test are excessive and can be used to help a candidate getting minimum marks in matric and BE (Computer Science)/ MCA but in view of no specific allegation of malafide and no illegal pattern having been noticed, it cannot be said that the above said criteria of providing 25 marks out of 75 marks i.e. 33 ½ % for viva voce was tainted. Neither any malafide has been pointed out nor any such pattern indicating any favour to any select candidate could be detected.
It is not out of place to mention here that the learned counsel for the petitioners have tried to attribute illegality to the selection by the Gupta Sanjay 2014.01.14 14:05 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 12065 of 2013 [36] Commission on the basis of the observations made by this Court in CWP NO. 15656 of 2010- Sanjeev Kumar and others Vs. State of Haryana and others, wherein selection made by the Haryana Staff Selection Commission filling the posts of PTIs was held to be bad on the ground that the process of selection had been made without members of the Commission having been consulted. As the selections had been made without any consultation, assessment and participation of any of the members of the Commission but the selections were nothing but one man show.
The observations against the Commission are not applicable to the facts of the present case as neither the constitution of Selection Committee has been challenged nor any allegations of bias have been levelled. All the pleas raised have been considered above.
On the basis of above discussion, I do not find any ground to interfere in the selection made by the Commission. The petitions are dismissed. Interim order is vacated. Records be returned.
December 21, 2013 (M.M.S.BEDI)
sanjay JUDGE
Gupta Sanjay
2014.01.14 14:05
I attest to the accuracy and
integrity of this document
High Court Chandigarh