Punjab-Haryana High Court
Sanjay Gupta And Another vs The Registrar on 29 October, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP Nos.5660 & 17085 of 2009
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. CWP No.5660 of 2009
Sanjay Gupta and another ..... Petitioners
Versus
The Registrar, Punjab & Haryana
High Court, Chandigarh & others ..... Respondents
2. CWP No. 17085 of 2009
Dharampal and another ..... Petitioners
Versus
The Registrar, Punjab & Haryana
High Court, Chandigarh and others ..... Respondents
Date of Decision: 29.10.2013
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. H.N. Khanduja, Advocate,
for the petitioners in CWP No.5660 of 2009.
Mr. Gaurav Sethi, Advocate,
for the petitioners in CWP No.17085 of 2009.
Mr. Karminder Singh, Advocate,
for respondent Nos.1 and 2 in CWP No.5660 of 2009.
Mr. Ashok Bhardwaj, Advocate,
for respondent Nos.1 and 2 in CWP No.17085 of 2009.
Mr. Atul Gaur, Advocate,
for Mr. Sumeet Goel, Advocate,
for respondent Nos.3, 7 and 9 in CWP No.5660 of 2009.
Mr. J.S. Maanipur, Advocate,
for respondent Nos.4, 12, 26, 27, 28, 35, 41, 51, 57, 71, 79 and 81.
(in CWP No.5660 of 2009).
Mr. R.K. Malik, Sr. Advocate,
with Ms. Kiran Rathee, Advocate,
for respondent Nos.15, 16, 18 to 20, 23 to 25, 29, 30, 32 to 34,
Mittal Manju
2013.11.07 16:14
I attest to the accuracy and
integrity of this document
Chandigarh
CWP Nos.5660 & 17085 of 2009
-2-
36 to 38, 40, 43, 44, 47, 48, 50, 52 to 55, 58 to 60, 63 to 65, 67,
68, 70, 72, 74, 75, 77, 78 and 80.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
This order will dispose of CWP No.5660 of 2009 titled Sanjay Gupta and another vs. The Registrar, Punjab & Haryana High Court, Chandigarh and others & CWP No.17085 of 2009 titled Dharampal and another vs. The Registrar, Punjab & Haryana High Court, Chandigarh and others. The facts are taken from CWP No.5660 of 2009.
Fifty seven vacant posts of Clerks were advertised on 02.08.2008 in the Indian Express to be filled in the Ambala Sessions Division. The appointments were to be made in accordance with amended Rule 7 of the Haryana Subordinate Courts Establishment Rules, 1997. The petitioners had competed for the post and remained unsuccessful in securing appointments. The challenge in this petition is to the selection and appointment of respondent Nos.3 to 9 and subsequently impleaded selected candidates.
The essential qualifications advertised for the post were Degree of Bachelor of Arts or Bachelor of Science or equivalent thereto, from a recognized University and as have passed the Matriculation Examination with Hindi as one of the subjects. The method of recruitment was through a written examination consisting of question papers in English Composition and General Knowledge of 50% marks each. The qualifying marks were fixed at 33%. The third condition of recruitment was obtaining 40% marks in the aggregate in the written examination from amongst candiadtes demonstrating proficiency in operation of Computers. The last date for Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -3- receipt of applications was 30.08.2008. The written examination and the test of proficiency in operation of Computer was conducted on 02.11.2008 and 25.01.2009 respectively. The test for proficiency in operation of Computers was conducted on a Sunday in Kalpana Chawla Government Polytechnic for Women, Ambala City to whom such test was entrusted. The petitioners claim that their performance was good and sufficient to secure appointment.
The principal challenge in the petitions is that in the written examination held on 02.11.2008 there was large scale large copying, resort to unfair practice and unfair means being adopted to unlawfully gain appointment to public service. The question papers set by the recruiting authority consisted of 8 pages distributed to the candidates in Xerox copies instead of in the printed format. These Xerox copies of question papers were prepared by four or five employees of the Sessions Division including the Steno, Nazir, Accountant and an Ex-reader of the Sessions Court who were alleged to be close to the invigilating authority. These officials smuggled out an advance copy of the question paper from the photocopying centre with a view to help relatives in getting selected. It is alleged that the Steno got his wife selected and appointed as Clerk. The Nazir got his brother's wife and sister's son selected. The Accountant/Additional English Clerk managed to get his son selected. The Ex-reader Pawan Kumar got his two daughters selected and appointed as Clerks. The other appointments too it is prayed require verification from official record to check favouritism at play. It is submitted that when the invigilating officers came for checking during the duration of the examination, malpractices were ssuspended but as soon as they left the hall, candidates again resorted to unfair means. It was Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -4- alleged that especially women were being helped in the written examination. When this matter was brought to the notice of the District & Sessions Judge, Ambala, one employee namely, Mr. Batish was suspended. It is alleged that no Additional District & Sessions Judge or Judicial Officer was deputed to supervise the examination/selection process which resulted in opportunity of adopting unfair means. The entire selection process was surrendered in the hands of the establishment without any direct involvement of Judicial Officers to oversee it. It is stated that the test of proficiency in operation of Computers of 209 short listed candidates was completed within two to three hours by two experts in the presence of the District & Sessions Judge, Ambala. No Additional District Judge or Judicial Officer was assigned this duty of invigilation and they were kept out of the entire process leading to appointment of Clerks; the District & Sessions Judge had a free hand to act arbitrarily, illegally and in a discriminatory manner. The interviews of the candidates were conducted by the District & Sessions Judge himself. Therefore, it is alleged that the selection process was a one man show. The criteria did not provide for interview and the result is based on leakage of question papers and use of unfair means and mass copying in the examination centre. It is urged that when the High Court introduced the condition of test of proficiency in operation of Computers then only such candidates should have been selected as were qualified and possessed the Post Graduate Diploma in Computer Application from a recognised institution or university. The two petitioners possess such Diploma; the selected candidates did not know the ABC of operation of Computers but were selected and appointed. After the Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -5- proficiency test the names of 150 candidates were displayed on the notice board but soon thereafter another list was put up on the notice board consisting of the 209 candidates. The list was thus replaced. As a result of resort to unfair means the result of the written examination should have been cancelled as it stood vitiated. These malpractices would not have occurred had the selection been left to Judicial Officers to supervise instead of clerical staff of the establishment of the Ambala Sessions Division.
It is the further case of the petitioners that there was no provision for assigning marks in testing proficiency in operation of Computers yet marks were awarded. If marks were to be awarded then it was not disclosed in the advertisement or on the notice board before the examination that such marks would enter the final result. This has resulted in many undeserving candidates obtaining appointment. Finally 73 Clerks were appointed. Accordingly, the entire process of selection stands vitiated.
Aggrieved by the selection, the petitioners got Mr. H.N. Khanduja, Advocate, to make a request under the Right to Information Act, 2005 for supplying information and documents relating to the selection and appointment of 73 Clerks. The request was turned down by the District & Sessions Judge, Ambala on two grounds. One, that the application had not been presented in accordance with Rule 3 of the Haryana Subordinate Courts (Right to Information) Rules, 2007 since the application fee was not paid by way of adhesive Court fee as required, Secondly, even otherwise the information sought was exempted from disclosure under Rule 4(c) of the aforesaid rules. Due to this, the petitioners were not in a position to implead all the respondents initially in this petition to assail their appointments. Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -6- This is where the matter rested when this petition was brought before this Court under article 226 of the Constitution challenging the selection and praying for quashing of the selection and appointment of respondent Nos.3 to 9 as well as other selected candidates whose particulars were denied access to under the RTI Act. It is prayed that a mandamus be issued directing respondents to supply information/documents regarding process leading to appointment of Clerks as requested by the petitioners. It is prayed that a CBI inquiry be ordered into the bungling of the selection process. In the alternative, a prayer is made that a direction be issued to the respondents to appoint both the petitioners on the post of Clerks who were not selected only due to bungling in the selection process.
In response to the writ petition on notice of motion being issued, the Registrar of this Court and the District & Sessions Court, Ambala have filed a joint written statement and have contested the case. It is the stand of the official respondents that when malpractices were alleged in the written examination in which the petitioners had participated with respect to leakage of question papers and cheating they did not agitate the matter or approach this Court either on its administrative or judicial side during the interregnum between the declaration of the result of the written examination and the holding of the proficiency test in handling of Computers which was spaced out by more than two months. The petitioners willingly participated in the Computer test without raising any dispute with respect to cheating, use of unfair means etc prior thereto. They are, therefore, precluded from questioning the process of the written examination. It is stated that respondent No.2, the District & Sessions Judge, Ambala vide letter dated Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -7- 29.09.2008 had ordered that the written examination be held on 02.11.2008 and pursuant thereto had issued directions accordingly that services of all the Judicial Officers and staff in Ambala Sessions Division would be required to help in the conduct of the examination and deal with a large number of applications recieved. All Judicial Officers and the staff at Ambala were directed to remain present on the day of the written examination. Duties were to be assigned to all the staff in due course. A roster of duties was circulated on 25.10.2008. For each Centre an Additional District & Sessions Judge was appointed as Centre Incharge and two Judicial Magistrates were appointed as Supervisors to assist the Centre Incharge. The contention of the petitioners that no Judicial Officer had been appointed to oversee the Examination Centre is therefore palpably false and is aimed at prejudicing the mind of the Court. An order was passed by the answering respondent on 01.11.2008 wherein one ADJ and one JMIC were assigned the duties of supervising the process of preparation of copies of the question papers. These two officers remained closetted with two officials who operated the Xerox machines throughout the process which started at about 2:00 PM on 01.11.2008 and ended at midnight. Except these two Officers and two persons deputed with them, no other person was permitted to enter the strong room. The allegations to the contrary in the writ petition have been refuted. The question papers were sealed in different boxes as per requirements in the Centres. The room where the process of preparation of copies of question papers had been carried out was locked and the key entrusted to the ADJ which was handed over to the answering respondents on the next day after the paper was attempted by the candidates. There was Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -8- no leakage of question papers. It is admitted that one incident of a staff member trying to help a candidate was brought to the notice of the answering respondent No 2. The complaint led to immediate suspension of that staff member. The candidature of that helped candidate was cancelled. The copy of the order is Annexure R-2/5. The official has been charge- sheeted and departmental inquiry was pending on the date of filing of the written statement. Except for this, no other complaint of any kind as alleged was received or made by any person to the answering respondent or to any other officer. If such had happened that would have been taken care of there and then. The High Court was informed of the incident on the same day. The fact that the petitioners had not made any complaint and kept mum for two months till the test of proficiency in operation of Computers was held speaks against them. The answer sheets were checked by one ADJ and two JMICs. After the result of the written examination was declared on 14.01.2009 and displayed on the notice board, three times the number of candidates of each category were called for the Computer proficiency test. On 22.01.2009 the official respondents issued an order deciding that for testing the proficiency of candidates in operation of Computers, a practical examination and viva-voce would be held. This was done in the background that no detailed criteria was spelt out in the recruitment and service rules for testing the proficiency of candidates in operation of Computers then with a view to conduct a fair test, a practical examination as also viva-voce should be conducted applicable to all uniformally. The criteria was fixed in consultation with the Administrative Judge of the Ambala Sessions Division. A Committee was constituted consisting of the Sessions Judge, Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -9- Ambala, one ADJ and one Additional Civil Judge (Sr. Division), Ambala to oversee conduct the Computer proficiency test which was ordered to be done by a directive dated 24.01.2009 passed by this Court on its administrative side. This limb of the selection process including evaluation of answer sheets of the Computer proficiency test held on 25.01.2009 were entrusted to an independent agency i.e. Kalpana Chawla Government Polytechnic College, Ambala and papers were checked by their staff members. The test was conducted by staff of the Polytechnic and was supervised by the Committee formed for the purpose consisting of Judicial Officers. The viva-voce test qua proficiency in computers was conducted not single handedly as alleged but by the District & Sessions Judge, Ambala together with the Principal of the said Polytechnic. The final result was declared on 02.02.2009 and was displayed on the notice board. However, thereafter an error was pointed out in the totaling of the marks obtained in the written test and those obtained in the Computer proficiency test in the final result, which was ordered to be corrected on 06.02.2009 and the revised list was accordingly displayed.
It is therefore submitted by Mr. Karminder Singh, learned counsel appearing for the High Court and the Sessions Division that the entire selection process was fair and transparent and no illegality of any kind whatsoever as pleaded in the writ petition crept in the selection process. Both the petitioners cleared the written test. After computing the marks of the written examination and the Computer proficiency test they were placed at Sr. No.83 and 89 respectively in the merit list. The petitioners have neither been declared failed or ineligible nor their candidature, at any stage, Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -10- has been rejected for any reason. Infact both of them were included in the select list. According to Rule 7 of the Rules, a select list for the post of Clerk remains in force till one year and posts of Clerks falling vacant during the said period are to be filled from amongst the candidates included in the select list as per merit. The selection process has become a deadball and the select list rendered infructuous. The writ petition has been filed by certain disgruntled elements who were not able to make the grade. The petitioners having participated in the selection process cannot be allowed to turn round and challenge the same by reason of their non-selection.
The petitioners have filed a replication to the written statement filed by respondent Nos.1 and 2. It is explained that though they participated in the selection process but could not approach the Court earlier as irregularities committed in the selection process came to the notice of the petitioners only after the declaration of results, selection and appointments of respondent Nos.3 to 9 who were close relatives of members of the staff of the establishment of the Ambala Sessions Division. The petitioners submit that for preparing more than 2180 question papers each consisting of 8 pages then according to advise received by the petitioners from private experts they urge that 2180 question papers would take 18 hours to Xerox. Time would also be taken for arranging of pages and putting them into order and stapling them. After stapling, four bundles of about 500 question papers each were to be prepared and sealed afterwards. Here again time was needed. If all four formalities were observed then 30 hours are required to complete the process through Xeroxing leading to preparation of four bundles of question papers. It would be humanly impossible that two Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -11- persons operating a Xerox machine could complete the process from 2 PM till midnight. It is suggested that 4-5 or more persons who were close to the 2nd respondent were tasked to help in preparing xerox copies of the question papers and it is these extra hands unoficially assigned duty that managed to steal the question papers which has resulted in leakage and thereby relatives of 4-5 persons managed to procure selection and appointment as highlighted in the writ petition resulting in selection being tainted and defective. With respect to award of 10 marks for written examination and 15 for viva-voce in the Computer proficiency test it is said that that could have been authorized only by the High Court but not by the Administrative Judge of the Sessions Division alone. The criteria was therefore evolved for Computer Proficiency Test suddenly and without due permission of the High Court to whom the rule making function is entrusted.
Respondent Nos.1 and 2 have filed a rejoinder to the replication. The allegations contained in the replication have been refuted as not based on facts and aimed only at misleading the Court. It is explained that of the total 2180 applications received 11 were rejected. The question paper may have consisted of 8 pages but 2 pages were Xeroxed on one page and, therefore, the question paper consisted of four pages i.e. two pages were Xeroxed on one page. Besides this, the machines which were employed were high speed Xerox machines sold under the brand name- Xerox Work Center 5020. The photocopying speed of which machines were upto 20 pages per minute and the first page timed out at 7.5 seconds. The total number of pages required were 2169 X 4 = 8676. The total time consumed to Xerox 99 pages was 8 minutes and, therefore, the time consumed to Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -12- Xerox 8676 pages was 701 minutes, which comes to 11 hours 41 minutes. Two such machines had been pressed into service and, therefore, the time spent was 5 hours 50 minutes per machine which was within the human resources and machine capacity to produce the required quantity from 2 PM to midnight which comes to all of 10 hours. The remaining time was spent in arranging pages, stapling and counting etc. It is thus canvassed that the averments of the petitioners contained in paragraph 5 of the replication are completely wrong and misleading.
The private respondents beyond respondent No.9 were permitted to be impleaded by orders of this Court dated 18.07.2011. Many of them have filed separate written statements defending their appointment as legal and valid. They have taken the defence inter alia that the petitioners once having participated in the selection process along with the private respondents without any demur or protest, after having failed to qualify in the examinations cannot be allowed to turn round and question the very same process. They rely on the Supreme Court judgments rendered in Dhananjay Malik & Ors. vs. State of Uttaranchal & Ors., 2008(3) RSJ 223, K.A. Nagamani vs. Indian Airlines & Ors., 2009(3) RSJ 500, Madan Lal & Ors. vs. State of J&K & Ors., 1995(3) SCC 486 and Chandra Prakash Tiwari vs. Shakuntala Shkula, 2002(6) SCC 127.
In Madan Lal's case, the Supreme Court observed:-
"It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -13- selected at the said interview and who ultimately finds himself to be unsuccessful."
I have heard the learned counsel for the parties and have perused the papers placed before me.
Learned counsel for the petitioners submits that 57 posts were advertised and 73 appointments have been made and therefore, appointments beyond advertised vacancies are illegal. It is urge that appointments beyond advertised vacancies not supported by rule or operation of waiting list or in absence of a condition in the advertisement that the number of vacancies are liable to increase or decrease would run contrary to the constitutional scheme of appointments under Articles 14 and 16 of the Constitution. This cannot be diputed as a general proposition of law laid down as long back in Hoshiar Singh vs. State of Haryana and others, 1993 Supp (4) SCC 377. However, in the present case, I find that the field is occupied by Rule 7 which prescribes a select list, the life of which is to remain statutorily in force for one year and posts of Clerks falling vacant during the said period are meant to be filled from that very selection process. In the present case, there was a note in the public notice that the number of vacancies are liable to increase or decrease. It is not the case where the petitioners were selected and placed in such position in the merit list as would satisfy their claims in terms of Rule 7 from the waiting list. The petitioners failed to make it within the merit of the 73 posts filled and therefore, they have no right to be appointed and would thus lose locus standi to challenge the selection on this ground both on principle of competition failure and against appointments beyond advertised vacancies made short of their merit position. The advertisement was Mittal issued Manju on 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -14- 02.08.2008 and there was a time lag of six months in completing the process for additional vacancies to occur to be filled by operation of Rule 7 of the rules.
The argument of the petitioners based on improbability of Xeroxing large number of answer sheets has been falsified in the rejoinder to the replication where the process is clearly demonstrated to be achievable through combination of manpower and machines. The contention is, therefore, rejected. If any relative of an employee has been selected they have been selected strictly as per merit without any consideration of the relationship and no fishing and roving enquiry can be ordered. Merely because some relatives of some employees have been selected, it cannot be suggested or accepted on first principles that the selection is unfair and these candidates did not deserve to be selected. Everyone has a right to compete on merit relationship notwithstanding. In any case, such an allegation restricted to six candidates cannot be a ground for vitiating the entire selection or to issue a mandamus to the respondents to appoint the petitioners in answer to the alternative prayer. The allegations of cheating and mass copying do not hold much water since the petitioners participated in the written examination, were in the thick of anwering the questions in a hall room with a large number of candidates competing alongside in the same Examination Centre. They are presumed to have seen what they saw, felt and heard what they heard but yet kept silent for more than two months only to be tested for their proficiency in operation of Computers conducted by an outside agency, the Polytechnic in which they eagerly participated but remained unsuccessful to make the grade. If they were first hand witnesses Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -15- to any nefarious activity they should have immediately reacted and agitated the matter. If the sat on the fence awaiting appointment by the same process which they say now was through corrupt practices they have taken there chances and lost their remedies. Therefore, such allegations though appear to be serious on their face value but remain largely unsubstantiated by material facts and material particulars. It is very easy to allege malafides and bias at motion hearing but harder still to prove during regular hearing in absence of facts or on generalized pleas pricking holes in the selection process which are neither wide nor gaping. At the same time though I would enter a word of caution that this Court would not abdicate its constitutional duty to strike down corrupt practices wherever found and any impurity discovered in the examination process leading to public appointments where facts justify on dependable proof. However, there are no dependable facts in this case to return a positive finding faulting the selection as one suffering from incurable taint. Appointments of relatives may raise a strong suspicion but suspicion alone cannot take the place of proof however light the standards of proof be in dealing with favouritism, nepotism, corruption and the like, as explained by the Supreme Court in D.V. Bakshi and others v. Union of India, AIR 1993 SC 2374 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, theMittal CourtManju will 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -16- 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 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."
Besides this, there is no reason to disbelieve that Judicial Officers did not remain Incharge and deputed to supervising the conduct of the examination which was the real complaint raised in this petition where the petitioners aver that had the judicial officers been in attendance during the examination process that would have lent credence of a fair selection. The allegations are clearly an afterthought to scandalize the selection process for gaining personal undue advantage and as such do not deserve prima facie to be entertained or opined on or for that matter and for this reason should the case be handed over to the CBI for investigation as prayed for. That prayer is, therefore, rejected as one without any intrinsic merit nor to serve any useful end without any dependable proof forthcoming except bald assertions.
It is the further contention of the learned counsel for the petitioners that converting the Computer proficiency test into one of award of marks for the written examination and the viva-voce held de hors the conditions of the advertisement or the same being contrary to the rules is misplaced and unmerited. The amended rule required testing of proficiency in operation of Computers and such condition imposed is clearly Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -17- supplemental to the rule and does not supplant it. If such criteria was introduced, no prejudice was caused to any candidate since it was applied across board. Its purpose clearly appears to be to recruit the most efficient candidates in the operation of Computers on which Court work substantially rests. I have no doubt that this was a salutary step towards a fairer selection of recruiting the best possible amongst the avialable talent.
Mr. Khanduja then relies on a decision of the Supreme Court in Rajesh Kumar Gupta and others vs. State of U.P. and others, 2005(2) SCT 827 to contend that mere participation in the process of selection will not operate as an estoppel from maintaining a writ challenging the selection on that ground. This was a case of an abrupt change in criteria of selection not envisioned in the rules of which the participating candidates had no knowledge to start with. They were taken by surprise by introducing an entirely foreign principle of evaluation of merit. This is not the position in this case and the case is distinguishable on facts. Reliance has then been placed on the decision of the learned Single Judge of this Court in Anil Kumar vs. District & Sessions Judge, Rohtak, 2010(2) SCT 435. In that case, selection of process servers and peons in the office of the District & Sessions Judge, Rohtak was found to be vitiated by illegality, arbitrariness and without adopting any fair, transparent, rational and established method of selection. The selection process was found to be totally vitiated. The process of short-listing resorted to in the Sessions Division was found based on just looking at the faces of the candidates which was farcical.
The dictum laid down in P.Mohanan Pillai vs. State of Kerala & Ors., 2007(2) SCT 604 also relied on is of no help to the petitioners. The Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh CWP Nos.5660 & 17085 of 2009 -18- case revolved around enlarging the zone of consideration by lowering the cut off marks. It was observed that the procedure prevailing on the date of vacancy should ordinarily be followed. The fact situation there was different.
In Dr. Krushan Chandra Sahu vs. State of Orissa, 1995(6) SCC 1 the Supreme Court held that the selecting agency has no jurisdiction to lay down the criteria for selection at its own level unless authorized specifically in that regard by the rules. It is the function of the rule making authority which cannot be side stepped by executive fiat. In the present case, if marks were awarded in evaluation of merit in the Computer Proficiency Test the action stood authorized by the official respondents in consultation with the Administrative Judge of the Ambala Sessions Division. The rule was not discarded. The gaps were filled in by a fair method to produce better results in making appointments. The judgment, therefore, does not come to the aid of the petitioners.
For the foregoing reasons, there is no merit in these petitions which fail and are dismissed.
(RAJIV NARAIN RAINA) JUDGE 29.10.2013 manju Mittal Manju 2013.11.07 16:14 I attest to the accuracy and integrity of this document Chandigarh