Punjab-Haryana High Court
Pearl Sidhu vs State Of Punjab And Others on 29 April, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of Decision : 29.4.2013
CWP No. 11047 of 2010
Pearl Sidhu ....... Petitioner
Versus
State of Punjab and others ..... Respondents
CWP No. 10780 of 2009
Amolak Singh ....... Petitioner
Versus
State of Punjab and others ..... Respondents
CWP No. 15563 of 2009
Parshotam Dass Joshi ....... Petitioner
Versus
State of Punjab and another ..... Respondents
CWP No. 15427 of 2010
Prince Kaushal ....... Petitioner
Versus
State of Punjab and others ..... Respondents
CWP No. 11047 of 2010 and connected cases -2-
CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. Rajiv Atma Ram, Senior Advocate, with,
Mr. Arjun Pratap Atma Ram, Advocate,
for the petitioner in CWP No. 11047 of 2010 and
for respondent No. 3 in CWP No. 10780 of 2009
Mr. M.K. Dogra, Advocate, for the petitioner
in CWP No. 10780 of 2009 and
for respondent No. 15 in CWP No. 15427 of 2010
Mr. Ramesh Goyal, Advocate, for the petitioner
in CWP No. 15427 of 2010.
Mr. Gurdev Singh, Advocate, for the petitioner
in CWP No. 15563 of 2010.
Ms. Monica Chhibber Sharma, Deputy Advocate General, Punjab,
for respondents.
Mr. A.R. Takkar, Advocate, for respondent No. 8
in CWP Nos. 11047 of 2010 and15427 of 2010.
AUGUSTINE GEORGE MASIH, J.
By this order I propose to decide Civil Writ Petitions No. 11047 of 2010, 10780 of 2009, 15427 of 2010 and 15563 of 2010, which pertain to selection to the post of Assistant Town Planners in pursuance to the advertisement dated 22.5.2009, issued by the Punjab Public Service Commission (in short 'the Commission').
In CWP No. 10780 of 2009, petitioner has approached this Court praying for quashing the selection of Ms. Pearl Sidhu as Assistant Town Planner under the Ex-servicemen category by asserting that she having scored higher marks than the general category candidate, should be appointed against the general category, leaving the post vacant for the petitioner to be appointed against the said post. Eligibility of Ms. Pearl Sidhu for appointment has also been challenged. It has further been asserted that the petitioner possesses CWP No. 11047 of 2010 and connected cases -3- preferential qualifications as prescribed in the advertisement, which would entitle the petitioner in this writ petition, i.e. Amolak Singh, to be appointed prior to Ms. Pearl Sidhu as he possesses a Post Graduate Degree in M. Tech (Urban Planning), whereas Ms. Pearl Sidhu is Bachelor in Architecture with experience of three years.
Notice in this writ petition was issued and during the pendency of the writ petition, Amolak Singh possessing the qualification of Post Graduation has been issued appointment letter, whereas Ms. Pearl Sidhu has not been issued the same, which resulted in filing of CWP No. 11047 of 2010 by her, challenging the appointment and selection of all the candidates in pursuance to the advertisement dated 22.5.2009 to the post of Assistant Town Planner. It has been asserted that the petitioner is eligible for appointment to the post in question having scored higher marks than many of the general category candidates and being placed at Serial No. 1 in the Ex-serviceman category. It has further been asserted that she (Ms. Pearl Sidhu) being eligible, as per the Statutory Rules, should be issued the appointment letter and non-issuance of the same by the respondent-department is violative of the judgment of the Hon'ble Supreme Court in Rajesh Kumar Daria Versus Rajasthan Public Service Commission and others, AIR 2007 SC 3127, which lays down the principle of horizontal reservation and the operation of the said principle has been explained therein. It has further been asserted that preferential qualifications as provided in the Statutory Rules would come into effect when on consideration of all the candidates, who are eligible as per the Statutory Rules, have been found to be equal in all respects. When the said position comes into existence, it is then the person with the preferential qualifications CWP No. 11047 of 2010 and connected cases -4- would be entitled to be considered prior for appointment, but when a candidate without that preferential qualification, secures higher marks as has been assessed by the selecting authority, the said principle of preferential qualifications will not come into force. In support of this contention, reliance has been placed upon the judgment of the Hon'ble Supreme Court in State of U.P. and another Versus Om Prakash and another, 2006 (6) SCC 474. It has further been asserted that the respondent-department has proceeded to appoint candidates more than the advertised posts, which is not sustainable in the light of the judgment of this Court in Satbir Singh Bura Versus Haryana State Electricity Board, Panchkula, 1996 (1) SCT 437. On this basis, prayer has been made for allowing the writ petition by directing the respondents to appoint her (Ms. Pearl Sidhu) on the post of Assistant Town Planner.
In CWP No. 15427 of 2010, petitioner Prince Kaushal is asserting his right for appointment to the post in question on the ground that he possesses the qualification, which has been termed as preferential qualification, for appointment to the post of Assistant Town Planner, but no benefit of the same stands granted to him while considering his candidature for appointment. All the candidates, who have been recommended for appointment and the candidates who possess qualification other than the preferential qualification, deserves to be ousted.
In CWP No. 15563 of 2010, petitioner Parshottam Dass Joshi is also asserting his claim for appointment on the basis of preferential qualifications possessed by him and has also challenged the criteria for selection on the ground that 50% marks have been allocated for viva-voce, is excessive and is contrary to the judgment passed by the Hon'ble Supreme CWP No. 11047 of 2010 and connected cases -5- Court in Ajay Hasia Versus Khalid Mujib Sehravardi, AIR 1981 SC 487 and Ashok Kumar Yadav and others Versus State of Haryana, 1985 (3) SLR 200 (SC).
The official respondents in their reply have asserted that the essential qualification which has been prescribed by the respondents under the Statutory Rules provides three qualifications and the proviso attached thereto provides that preference will be given to the persons who possess qualifications specified in Clauses (a) and (b). Petitioner Ms. Pearl Sidhu in CWP No. 11047 of 2010 possesses qualification, which would fall under Clause (c) and, therefore, candidates appointed possess qualifications as prescribed in Clauses
(a) and (b) and thus, have been given preference over and above the candidates possessing qualification mentioned under Clause (c). Since clear preference for appointment to the candidates possessing qualifications as categorized in Clauses (a) and (b) has been provided in the Rules, candidates with qualification under Clause (c) cannot be appointed irrespective of the merit obtained by the candidates in the selection process. The merit prepared by the Commission was only on the basis of marks obtained by the candidates in the qualifying examination (one of the essential qualification which made them eligible). Candidates possessing the basic qualification which has been treated as a preferential qualification as mentioned in the Rules governing the service, have been given the precedence over other candidates. Even the Commission in its recommendations had advised the Government to give preference as per the rules at the time of appointment.
The department felt that there is a logic to give preference to the person who possesses qualification specified in Clauses (a) and (b) as the job CWP No. 11047 of 2010 and connected cases -6- profile of an Assistant Town Planner is to achieve the objective of Punjab Regional and Town Planning and Development Act, 1995 (in short 'Act'). This Act has been enacted for making provision for better planning and regulating the development and use of land in planning areas delineated for that purpose, for preparation of regional plans and master plans and implementation thereof. This can be done in a much better way by a person who possesses qualifications of town planning. The core subjects in the degree of Bachelor of Architecture are fine tuned to prepare the detailed designs and drawings of individual buildings in the overall plan of a scheme and stand alone buildings such as commercial, industrial, re-creational housing etc. Keeping these in mind, rule of procedure has been applied by the department in a manner that candidates most suited as per the qualifications possessed by them are appointed.
It has been asserted by the official respondents that once a category has been opted by a candidate for considering his/her candidature, the same cannot be changed. As per the advertisement, under Clause (c), it was specifically mentioned that category once claimed will not be allowed to be changed under any circumstance. None of the candidates protested to this condition incorporated in the advertisement at any point of time, which means that they had accepted the said condition. Support for this reasoning has been placed on the judgment of the Hon'ble Supreme Court in Union of India and others Versus Dalbir Singh and another, 2009 (7) Supreme Court Cases 251. On this basis, it has been asserted that there can be no change in category of any candidate in which he or she had applied and irrespective of the marks CWP No. 11047 of 2010 and connected cases -7- obtained by a candidate, appointment cannot be claimed in a different category where the candidates selected have obtained lower marks.
The judgment of the Hon'ble Supreme Court in the case of State of U.P. and another Versus Om Prakash and another (supra) has been sought to be distinguished on the ground that the law as laid down by the Hon'ble Supreme Court would be applicable to a situation where there was a competitive test held for assessing the suitability of the candidates possessing different qualifications and under these circumstances, if two or more candidates obtained equal marks then the preferential qualifications, as prescribed in the Rule, would be applicable. Since in the present case, there has been no written competitive test, the said judgment would not be applicable and instead the judgment in the case of The Secretary, A.P. Public Service Commission Versus Y.V.V.R. Srinivasulu and others, 2003 (2) SCT 920 would be applicable, wherein it has been held that the candidates having higher qualification can be given preference.
Apart from the grounds as has been taken by the official respondents, an application, i.e. CM No. 5233 of 2011, has been moved by Naval Kishore Sharma-respondent No. 8 in CWP No. 11047 of 2010, wherein it has been asserted that the experience certificate submitted by the petitioner is a fabricated and procured one and, therefore, prayer has been made for declaring the petitioner Ms. Pearl Sidhu as ineligible and initiating proceedings under Section 340 Cr.P.C. against her.
Reply to the said application has been filed by Ms. Pearl Sidhu and the allegations denied. It has been stated that the said certificate is a genuine certificate and in support thereof, documents have been produced.
CWP No. 11047 of 2010 and connected cases -8- Counsel for the parties have put-forth their arguments in Court in accordance with the pleadings which have been referred to above.
The first question which requires to be decided by this Court is with regard to preferential qualification as provided under the Statutory Rules and the effect thereof.
For resolving this issue, reference to the Statutory Rules would be essential. The post of Assistant Town Planner is governed by the Punjab Town and Country Planning Class-II (Technical) Service Rules, 1998 (in short 'Rules 1998'). As per Rule 5 of the 1998 Rules, appointment to the service shall be made in the manner specified in Appendix-B. For direct appointment, the qualifications prescribed therein are as follows :-
" (a) Post Graduation Degree or Diploma in City and Regional Planning or its equivalent from a recognized University or Institute OR
(b) Degree in B. Tech (in Planning) from a recognized University or Institute OR
(c) Degree in Architecture or Civil Engineering or its equivalent from a recognized University or Institute and experience in Town Planning's work for a minimum period of three years.
Provided that preferences will be given to the persons possessing qualifications specified in Clause (a) and (b) above.
(d) Punjabi of Matric or its equivalent standard."
This very qualification was incorporated in the advertisement dated 22.5.2009, issued by the Commission. 11 posts of Assistant Town Planner were advertised, out of which four were to be filled up from the general category, two from scheduled caste of Punjab, one each from scheduled CWP No. 11047 of 2010 and connected cases -9- caste sportsperson of Punjab, BC Punjab, BC ESM Punjab, ESM Punjab and physically handicapped of Punjab.
Amolak Singh (petitioner in CWP No. 10780 of 2009) as also Ms. Pearl Sidhu (petitioner in CWP No. 11047 of 2010) applied under the Ex- servicemen Punjab category. After the selection, recommendations were made by the Commission, according to which, Ms. Pearl Sidhu was placed at Serial No. 3 in the combined merit list and Amolak Singh at Serial No. 5. This merit list was forwarded by the Commission to the Government in the Department of Housing and Urban Development, vide letter dated 15.7.2009. In the category wise merit list, Ms. Pearl Sidhu was placed at Serial No. 1 and Amolak Singh at Serial No. 2. Amolak Singh is asserting his appointment prior to Ms. Pearl Sidhu on the ground that he was possessing qualification as provided in Clause
(a), which is a preferential qualification, whereas Ms. Pearl Sidhu possesses qualification as provided in Clause (c).
Reference at this stage needs to be made to the judgment of the Hon'ble Supreme Court in the case of State of U.P. and another Versus Om Prakash and another (supra) wherein dealing with the similar Rule providing for preference out of the two qualifications prescribed under the Statutory Rules, the Hon'ble Supreme Court after referring to the earlier precedent, i.e. in the cases of Secretary (Health), Department of Health and Family Welfare Versus Dr. Anita Puri, 1996 (6) SCC 282 and Secretary, A.P. Public Service Commission (supra) has held that when selection is made on the basis of merit assessed through competitive examination and interview, preference to additional qualification would mean other things being qualitatively and CWP No. 11047 of 2010 and connected cases -10- quantitatively equal, those having additional qualification would be preferred. It does not mean en bloc preference irrespective of inter se merit and suitability.
To this, an argument has been raised by the respondents that this ratio will be applicable only in cases where there is a competitive examination held, followed by interview. Perusal of the judgment passed by the Hon'ble Supreme Court in Secretary (Health), Department of Health and Family Welfare Versus Dr. Anita Puri's case (supra) would show that there was no competitive examination held in the selection which was in question for appointing candidates to the post of dental officers. It thus cannot be said that the applicability of this principle as laid down by the Hon'ble Supreme Court would be restricted to a situation in giving preference to one qualification over the other where the basis of merit was assessed through a competitive examination, followed by the interview. Para-7 of Dr. Anita Puri's judgment (supra) reads as follows :-
"7. Admittedly, in the advertisement which was published calling for applications from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is B.D.S. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that M.D.S. is higher qualification than the minimum qualification required for the post and the respondent No. 1 was having that degree. The question then arises is whether a person holding a M.D.S. qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a CWP No. 11047 of 2010 and connected cases -11- particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of a person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he, possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held; his general aptitude for the job to be ascertained in course of interview, extra-curriculum activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S. qualified person like respondent No. 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualification person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed."
CWP No. 11047 of 2010 and connected cases -12- In view of the above law as laid down by the Hon'ble Supreme Court, the stand of the respondent-State that preference has to be given to the candidates possessing qualifications as provided for in Clauses (a) and (b) over candidates possessing qualifications as provided in Clause (c) cannot be accepted. The claim of petitioner Ms. Pearl Sidhu, therefore, cannot be ignored by-passing the merit obtained by her as assessed by the Commission since she (Ms. Pearl Sidhu) has secured higher marks in merit than Amolak Singh and has also secured higher marks than the general category candidates. The advise of the Commission to the Government to give preference as per the rules at the time of appointment also would be applicable in the situation as has been laid down by the Hon'ble Supreme Court as stated above.
Now moving on to the next ground as projected by Amolak Singh in his writ petition, i.e. CWP No. 10780 of 2009, asserting therein that Ms. Pearl Sidhu having obtained 3rd rank in the combined merit list would occupy a general category seat, which would entitle him to be appointed against the sole reserved category seat of ESM Punjab.
The Hon'ble Supreme Court in Rajesh Kumar Daria's case (supra) has dealt with the issue with regard to claim of employment, which is based on reservation, which can be termed as special reservation as contrasted from social reservation provided for under Article 16(4) of the Constitution of India.
While dealing with the reservation provision relating to women in different categories, reference has been made to earlier judgments of the Hon'ble Supreme Court and has been held as follows :
"5. Before examining whether the reservation provision relating to women, had been correctly applied, it will be CWP No. 11047 of 2010 and connected cases -13- advantageous to refer to the nature of horizontal reservation and the manner of its application. In Indra Sawhney vs. Union of India [1992 Supp.(3) SCC 217], the principle of horizontal reservation was explained thus (para 812) :
".......all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes [(under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped (under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against the quota will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same."
CWP No. 11047 of 2010 and connected cases -14- A special provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16 (4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta vs. State of U.P. [1995 (5) SCC 173] thus :
" ........... The proper and correct course is to first fill up the Open Competition quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation
- no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) [Emphasis supplied]"
CWP No. 11047 of 2010 and connected cases -15-
6. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be : "For SC : 30 posts, of which 9 posts are for women". We find that many a time this is wrongly described thus : "For SC : 21 posts for men and 9 posts for women, in all 30 posts". Obviously, there is, and there can be, no reservation category of 'male' or 'men'.
7-8. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are 'vertical reservations'. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are 'horizontal reservations'. Where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. [Vide - Indira Sawhney (Supra), R. K. Sabharwal vs. State of Punjab (1995 (2) SCC 745), Union of India vs. Virpal Singh Chauvan CWP No. 11047 of 2010 and connected cases -16-
(1995 (6) SCC 684 and Ritesh R. Sah vs. Dr. Y. L. Yamul (1996 (3) SCC 253)]. But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women'. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example :
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to CWP No. 11047 of 2010 and connected cases -17- ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.]"
Now applying the principle as has been explained by the Hon'ble Supreme Court, reservation to ESM category would fall to the special reservation group and, therefore, would be a horizontal reservation, meaning thereby that Ms. Pearl Sidhu could not move on to the general category post. However, in case Amolak Singh secures higher merit marks than the last general category candidate selected and appointed, the last general category candidate will have to make way for him.
At this stage, the objection of the official respondents that there is a specific clause incorporated in the advertisement, according to which, a candidate was required to indicate in the application form the reserved category for which he/she wants to be considered and in the 'important note' Clause (c) of the advertisement, it has been stated that the category once claimed will not be allowed to change under any circumstances and, therefore, an ESM category candidate cannot be considered against the general category seat is required to be dealt with. In support of this stand, reliance has also been placed upon the judgment of the Hon'ble Supreme Court in Union of India and others Versus Dalvir Singh's case (supra), wherein it has been held that at no point of time a candidate having taken exception to the procedure adopted by the selection committee in preparing two separate select list for general and reserved CWP No. 11047 of 2010 and connected cases -18- candidates and having opted for reserved category, he/she cannot thereafter claim his/her case requires to be considered in the general category only because he/she has secured better percentage of marks than the last select candidate in general merit. This observation of the Hon'ble Supreme Court, on which reliance has been placed by the officials respondents, ignoring the fact as has been recorded by the Hon'ble Supreme Court in para-8 of the said judgment wherein it has been mentioned that to fill up the vacancies of mazdoors, an advertisement has been issued separately for general and OBC categories and pursuant to the said advertisement, the applicant had applied against OBC category and not under general category and, therefore, his name was not considered under the general category is misplaced. If the advertisement has been issued separately for general and OBC categories and the applicant had not applied for the general category and had only applied for the OBC category, then obviously his claim only could be considered under the OBC category. The judgment thus, relied upon by the respondents would not be applicable to the present cases as these observations were based upon the facts of that case.
It needs to be emphasized and clarified here that every citizen has a right to claim appointment to a public post provided he/she fulfills the qualifications and the requirement as prescribed under the Statutory Rules and the advertisement. The principles as laid down by the Hon'ble Supreme Court in Indra Sawhney vs. Union of India (1992 Supp.(3) SCC 217) and as clarified by the Hon'ble Supreme Court in Anil Kumar Gupta vs. State of U.P. (1995 (5) SCC 173) which clearly spells out that a combined merit list has to be first taken into consideration for filling up the general category posts and thereafter CWP No. 11047 of 2010 and connected cases -19- steps taken to proceed further for considering the vertical (social) reservation and horizontal (special) reservation. In vertical (social) reservation, all candidates falling in this category of reservation and who get selected to open competition vacancies, will not be treated to have been appointed on the seats reserved for the quota of vertical (social) reservation, whereas the position would be different qua the candidates who belong to the special reservation group. If the candidates belonging to this category fall short than the post(s) reserved for that category, the next candidate in merit in that particular special reservation group shall be appointed against the remaining vacant posts of that category. However, if they fill up the required reserved seats or exceeded the same, no further appointment has to be made, but they would continue to be selected and appointed on their own merit and there will be no deletion of such excess candidate out of the general merit. The condition thus as imposed in the advertisement by the respondents that under no circumstances can the category once applied for be changed, would be violative of Articles 14 and 16 of the Constitution of India if a candidate, who has secured higher marks than the general category candidate, is deprived of his right to consideration and appointment against open category seat. It needs to be emphasized here that there is no reservation for general category as such and candidates belonging to the reserved category can compete and also claim appointment on a general seat on his own merit basis.
The next objection, which has been raised by the petitioner in the writ petition, is with regard to action of the respondents in filling up excess posts than the advertised posts which is violative of the principles as laid down by the Hon'ble Supreme Court as also the Division Bench of this Court in the CWP No. 11047 of 2010 and connected cases -20- case of Satbir Singh Bura (supra). This contention cannot be accepted in the light of the fact that it was clearly mentioned in the advertisement that the number of vacancies and reservation of posts is liable to be altered without any notice. In Satbir Singh Bura's case (supra), the Division Bench of this Court has held that any appointment made in excess of the advertised vacancies or the increased number of vacancies where the advertisement does not contain a stipulation regarding the increase or decrease in the vacancies is contrary to the equality clause enshrined in Articles 14 and 16 of the Constitution.
In the present case, the advertisement specifically provides that the number of vacancies and reservation of posts is liable to be altered without any notice and, therefore, the action of the respondents in filling up the vacancies which have arisen due to posts becoming available during the selection process, cannot be said to be not in accordance with law.
The only question now which requires to be considered and decided is the challenge to the selection and appointment as raised by Parshotam Dass Joshi (petitioner in CWP No. 15563 of 2010) on the ground that the criteria for selection, which allocates 50% marks for viva-voce, is excessive and the same being contrary to the judgment passed by the Hon'ble Supreme Court in Ajay Hasia's case (supra) as also in Ashok Kumar Yadav's case (supra), the selection deserves to be set aside.
It is by now settled by various judicial verdicts that the recruiting agency can evolve its own criteria for selection in the absence of any statutory mandate, limiting such criteria. If the process of selection and the criteria is provided under the statutory Rules, the same cannot be deviated from by the recruiting authority. No statutory Rules/Instructions has been referred to by the CWP No. 11047 of 2010 and connected cases -21- petitioners which would prescribe a criteria for selection or shortlisting of the candidates. In the absence of the same, the discretion is that of the Commission to evolve its own process of shortlisting and devise its own method for the same. The power of judicial review, no doubt is available to the Court, but that jurisdiction is limited and the Court can only interfere with such decision of the recruiting/appointing authority if the same was illegal or suffered from procedural impropriety or was irrational and that too to the extent that it was in outrageous defiance of logic or moral standards. Interference by the Court would also be permissible in case such a decision is totally arbitrary, unjust and based on malafides. If these traits are absent, the Court would not interfere in the exercise of discretion by the competent authority in laying down the procedure and criteria for selection.
In the case of Anu Radha Versus State of Haryana and others, 2009 (3) SCT 477, this Court has upheld the decision of the Commission to select Headmistresses on the basis of interview alone. While dealing with this aspect, reference has been made to the judgment of the Hon'ble Supreme Court in Ajay Hasia's case, wherein the Hon'ble Supreme Court had observed that the oral interview was not satisfactory mode of selection and should not be relied upon as exclusive test but should be only additional or supplementary test for assessing the caliber of the candidates. This decision was considered by the Hon'ble Supreme Court in the case of Lila Dhar Versus State of Rajasthan, AIR 1981 SC 1777, wherein it was observed that in Ajay Hasia's case (supra), the Hon'ble Supreme Court was dealing with admissions, which principle would not be applicable to the selection to judicial service. Awarding of marks under different heads could lead to distorted picture while totality of impression may CWP No. 11047 of 2010 and connected cases -22- give more accurate picture and there can be no magic formula in these matters and the Court cannot sit in judgment over the methods of marking, resorted to by the interview bodies, unless they are based on oblique motives. This view was reiterated by the Hon'ble Supreme Court in the case of Inder Parkash Gupta Versus The State of Jammu and Kashmir, (2004) 6 SCC 786 and P. Mohanan Pillai Versus State of Kerala and others, (2007) 9 SCC 497. Judgment in the case of Ashok Kumar Yadav (supra), on which reliance has been placed by the counsel for the petitioner, was also considered by the Division Bench of this Court and while referring to the subsequent judgment in the case of Anzar Ahmed Versus State of Bihar, (1994) 1 SCC 150, it was observed that the principles laid down in Ashok Kumar Yadav's case (supra) was held to be not inflexible one particularly when interview was the only basis of selection.
In view of the above, I do not find any merit in the contention of the petitioner and, therefore, the challenge to the selection on the ground that the interview marks are 50% and thus excessive must fail.
In view of the above, these writ petitions are disposed of with directions to the Principal Secretary to Government of Punjab, Department of Housing and Urban Development-respondent No. 1 to consider afresh the claims of the candidates as recommended by the Commission, in accordance with the position of law as explained above and take appropriate steps.
It needs to be added here that an objection with regard to authenticity of the experience certificate of Ms. Pearl Sidhu (petitioner in CWP No. 11047 of 2010) has been raised by respondent No. 8 Naval Kishore Sharma, which may also be gone into by respondent No. 1 before proceeding to CWP No. 11047 of 2010 and connected cases -23- decide the claims of the candidates as per merit as recommended by the Commission.
The above directions be complied with within a period of two months from the date of receipt of certified copy of this order.
A photocopy of this order be placed on each connected case file.
(AUGUSTINE GEORGE MASIH) JUDGE 29.4.2013 sjks