Punjab-Haryana High Court
Date Of Decision: October 03 vs State Of Haryana And Another on 3 October, 2012
Author: A.K. Sikri
Bench: A.K. Sikri, Rakesh Kumar Jain
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. Letters Patent Appeal No.684 of 2012
DATE OF DECISION: October 03, 2012
Sachin Kumar
.....Appellant
versus
State of Haryana and another
.....Respondents
2. Letters Patent Appeal No.712 of 2012
Akash Kumar
.....Appellant
versus
Haryana Staff Selection Commission and others
.....Respondents
CORAM:- HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN, JUDGE
Present: Mr.Shbhash Ahuja and Mr.Rakesh Gupta, Advocates
for the appellants
Mr.B.S. Rana, Addl. Advocate General, Haryana
Mr.R.K. Malik, Senior Advocate with
Mr.Samrat Singh Malik, Advocate for the intervener
..
A.K. SIKRI, C.J.:
CM-3817-2012 in LPA-712-2012:
C.M. allowed.
Applicants are permitted to participate as interveners in the proceedings.
Main Appeals:
By the impugned order, subject matter of the present appeals, two writ petitions filed by the appellants herein have been LPA Nos.684 & 712 of 2012 -2- dismissed by the learned single Judge. Both the appellants had applied for selection to the post of Labour Inspector in response to Advertisement No.2/2010 dated 14.8.2010 issued by the Haryana Staff Selection Commission (hereinafter referred to as 'the Commission'). A total of 22 posts were advertised and 12 out of these belonged to general category. The selection to these posts is governed by the Haryana Labour Department (Group 'C') Service Rules, 1982, which prescribes the following qualifications as eligibility conditions:-
"i) A degree of Bachelor of Arts including Public Administration of a recognized University or its equivalent. Persons possessing the qualifications of Diploma/Degree in Social Welfare and Specialization in Labour Laws shall be preferred;
ii) Hindi/Sanskrit upto Matric standard."
It is not in dispute that the appellants fulfilled these conditions. However, the Commission had decided to shortlist the candidates for recruitment to the aforesaid posts of Labour Inspector and for this purpose it fixed minimum cut off percentage at 67% in the degree of Bachelor of Arts including Public Administration of a recognised university or its equivalent. This was prescribed vide notice dated 15.3.2012. Since the appellants did not fulfil this benchmark, as they had secured less than 67% marks in the degree of Bachelor of Arts, they filed the writ petitions challenging the validity of the notifications. Their submission was that as they fulfilled the eligibility conditions contained in the recruitment rules, it was incumbent upon the Commission to allow them to appear in the 2 LPA Nos.684 & 712 of 2012 -3- selection process and prescription of minimum cut off percentage of 67% in the degree of Bachelor of Arts, over and above what is prescribed in recruitment rules, was improper, unjustified and violative of Articles 14 and 16 of the Constitution. This contention has not been accepted by the learned single Judge, finding no fault with the aforesaid norm fixed by the Commission.
Submission of learned counsel for the appellants was that as per the rules, those who have specialised in Labour Laws are to be given preference. The appellants have specialisation in Labour Laws, but they are sidelined because of minimum cut off percentage for the General Category prescribed in the notice dated 15.3.2012. It is argued that as a result, a candidate, who was simply a Bachelor of Arts with more than 67% marks is preferred over the candidates like the appellants, who were not only having degree of Bachelor of Arts but even specialisation in Labour Laws.
Insofar as the contention of the learned counsel for the appellants that preference is to be given to a person having specialisation in Labour Laws, we are of the view that learned single Judge rightly interpreted the rule holding that such preference to the person having specialisation in Labour Laws is permissible only when two candidates are otherwise equal in merit. Law on this aspect is well settled by the Apex Court. Reference can be drawn to the judgment of the Supreme Court in Government of Andhra Pradesh vs. P.Dilip Kumar, 1993(2) SCC 310 wherein this principle is delineated and expounded in the following manner:-
"9. We may now turn to the instructions issued through Memo dated 13th October, 1978 which is in 3 LPA Nos.684 & 712 of 2012 -4- three paragraphs. The first paragraph merely states the purport of Note 1. The second paragraph states that the list of eligible candidates with post-graduate qualification shall be first considered in the order of their seniority and only after it is considered, the cases of ordinary graduates shall be considered. The selection has of course, to be made on the basis of merit and ability. Then comes the third paragraph which seeks to explain the phrase 'preference shall be given' to mean that other things (such as passing of prescribed test, maintaining merit, suitability, fitness, etc.) being equal preference shall be given to holders of post-graduate qualifications, and after giving such preference the claim of less qualified candidates would be considered. it may at this stage be mentioned that the subject clause of the Memo dated 13th October, 1978 has some relevance and may be reproduced :
"Sub:- Public Services A.P. Engineering Service Promotion to the category of Asstt. Engineers from Jr. Engineers category- preference to Post Graduates- Reg."
From the use of the expression 'promotion' in the subject clause and 'seniority' in paragraph 2 of the memo it was argued that the said instructions applied to cases of promotion only and had no application when it came to filling up of the posts by direct recruitment. We will immediately deal with the said submission.
10. The Andhra Pradesh Engineering Service Rules, 1966 ('the Rules' hereafter) came to be enacted in exercise of powers conferred by the proviso to Article 309 of the Constitution. Rule 4 thereof prescribes the qualification for appointment to certain posts including the post of Deputy Executive Engineer by direct recruitment, promotion or transfer. Note I 4 LPA Nos.684 & 712 of 2012 -5- forms part of the said rule. Before the insertion of the second part to Note 1 by GOMs No. 180 of 1983, the instructions contained in the Memo of 13.10.1978 provided guidance in the matter of grant of preference to post-graduate for entry by promotion to the post of Deputy Executive Engineer. The subject clause of the Memo undoubtedly refers to preference to be granted to post- graduates in the matter of promotion and the use of the expression 'seniority' in paragraph 2 thereof is undoubtedly indicative of the fact that its application was limited to laying down guidelines for application of the preference clause found in Note 1 to the rule in the matter of promotion. Paragraph 2 thereof while stating that rule 4 is not conditional or limited proceeds to add that for any particular year, the list of eligible candidates with post-graduate qualification shall be considered in the order of their 'seniority' and only after such list is considered the cases of ordinary graduates shall be considered and selection will be made on the basis of merit and ability. The question of seniority among post- graduates can arise only in regard to candidates who are in service and who are to be considered for promotion to the next higher post. There can be no question, of arranging post- graduates according to seniority where they are seeking appointment by direct recruitment. In that case the list would have to be prepared on the basis of merit and not seniority. Therefore, the use of the expression 'promotion' in the subject clause and the expression 'seniority' in paragraph 2 of the memo is indicative of the fact that the instructions concerned appointment by promotion. In paragraph 2 it is said that candidates with post-graduate qualification will be arranged in the order of their seniority and they 5 LPA Nos.684 & 712 of 2012 -6- shall be considered first and only after such a list is considered, the case of ordinary graduates shall be considered and selection made on merit and ability. Paragraph 3 then says that the expression 'preference shall be given' used in Note I means that other things being equal, holders of post-graduate qualifications will be given preference and after that the claims of less qualified candidates would be considered for appointment. The use of the word after in both the paragraphs is significant and is indicative of the manner in which the preference clause is to be worked out. After the amendment of Note 1 by the introduction of the second part earmarking the slot of 9th vacancy for post- graduates, the mode of implementing the preference in the matter of appointment by promotion underwent a change rendering the memo of 13.10.1978 otiose. But it can still be availed of as an aid to construction of Note 1 insofar as it concerns grant of preference in the matter of direct recruitment. Except for this limited use to which the Memo can be put, we are agreed that it related to grant of preference at the promotion stage only and has since become otiose.
xx xx xx xx xx
13. The matter may be looked at from another view- point. The word preference' as understood in ordinary parlance means preferring or choosing as more desirable, favouring or conferring a prior right. What then is the purpose and object sought to be achieved by the insertion of the preference clause in the rule? There is no doubt that preference was sought to be granted under Note 1 to post- graduates in the larger, interest of the administration. How would the interest. of the administration be served by granting preference to post-graduates? It is obvious that it 6 LPA Nos.684 & 712 of 2012 -7- was thought that on account of their higher mental equipment the quality of performance that the State will receive from highly qualified engineers would be better and of a high order. In other words the State considered it necessary to strengthen the engineering service by recruiting postgraduates to the extent available so that the State may benefit from their higher educational qualifications and better performance. If this was the objective surely it would not be realised unless post- graduates are treated as a class and given preference on block over the graduates. Since sufficient number of post- graduates may not be available from the feeder channels and even if available cannot be promoted out of turn without causing heart burns, it was thought desirable to resort to such large scale recruitment directly from the open market. The underlying idea of the Memo dated 13.10.1978 was the same but certain difficulties were felt in resorting to enforcement of the preference clause at the promotion stage and that is why the second part came to be inserted in Note I but no such difficulty would be experienced in strengthening the cadre through direct recruitment. But then it was said what was the need for the PSC to hold the written test by inviting applications from graduates and subjecting them to test? That was for the reason that there was no guarantee that sufficient number of post-graduates would qualify for selection and appointment. But if the preference rule were to be implemented as held by the Tribunal it would apply only where the post-graduate and graduate candidates have secured the same number of marks. If the rule so implemented is carried to its logical end it would ultimately resolve a tie only at the last rung of the ladder because ties at higher 7 LPA Nos.684 & 712 of 2012 -8- levels would be resolved by a post- graduate being followed by a graduate in the select list. The question of elimination would really arise at the last placement in the list and hence the real purpose of the preference rule would not be served. That is why this Court in Md. Usman's case (supra) approved of this method of recruitment as most reasonable. There is nothing arbitrary or unreasonable in the employer preferring a candidate with higher qualification for service. It is well settled by a catenation of decisions that classification on the basis of higher educational qualification to achieve higher administrative efficiency is permissible under our constitutional scheme. See Roshan Lal Tandon v. Union of India, State of J & K V/s. Triloki Nath Khosa, Md. Sujat Ali V/s. Union of India, Roop Chand Adlakha V/s. Delhi Development Authority, V. Markendeya V/s. State of Andhra Pradesh and Sanatan Gauda V/s. Berhampur University. We, therefore, do not agree that treating post-graduates as a class and giving them preference in this manner is violative of Articles 14/16 of the Constitution. We also do not see any vice in the relevant rule and in Note 1 as amended in 1983."
This view has been reiterated by the Supreme Court in Secretary, A.P. Public Service Commission vs. Y.V.V.R. Srinivasulu, (SC), 2003(5) SCC 341.
It follows from the above that appellants can claim preferential treatment only when they were at par with other candidates. Insofar as primary qualification is concerned, obviously, the candidates called for interview with more than 67% marks in Bachelor of Arts are better than the appellants.
8 LPA Nos.684 & 712 of 2012 -9-In this backdrop, we come to the second aspect of the matter, viz., whether the Commission could fix higher cut off marks of 67 percent. Answer to this would be in the affirmative, as we find that position on this aspect of law again has been concluded by the Supreme Court in the case of Madhya Pradesh Public Service Commission vs. Navnit Kumar Potdar and another, JT 1994(6) SC 302, in the following manner:-
".........it is all the more necessary to fix the limit of the applicants who should be called for interview where there is no written test, on some rational and objective basis so that personality and merit of the persons who are called for interview are properly assessed and evaluated. It need not be pointed out that this decision regarding short-listing the number of candidates who have applied for the post must be based not on any extraneous consideration, but only to aid and help the process of selection of the best candidates among the applicants for the post in question. This process of short-listing shall not amount to altering or substituting the eligibility criteria given in statutory rules or prospectus. In substance and reality, this process of short-listing is part of process of selection. Once the applications are received and the Selection Board or the Commission applies its mind to evolve any rational and reasonable basis, on which the list of applicants should be short- listed, the process of selection commences. If with five years of experience an applicant is eligible, then no fault can be found with the Commission if the applicants having completed seven and half years of practice are only called for interview because such applicants having longer period of practice; shall be presumed to have better experience. This process will 9 LPA Nos.684 & 712 of 2012 - 10
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not be in conflict with the requirement of Section 8(3)(c) which prescribes the eligibility for making an application for the post in question. In a sense Section 8(3)(c) places a bar that no person having less than five years of practice as an Advocate or a pleader shall be entitled to be considered for appointment to the post of Presiding Officer of the Labour Court. But if amongst several hundred applicants, a decision is taken to call for interview only those who have completed seven and half years of practice, it is neither violative nor in conflict with the requirement of Section 8(3)(c) of the Act."
To the same effect is the judgment of the Supreme Court in State of Punjab and others vs. Manjit Singh and others, 2003(11) SCC
559. In the present case, it is not disputed that the mode of selection was through process of interview only. The Commission while fixing the aforesaid criteria applied the norm of 1/5, namely, calling five candidates against one vacancy. This yardstick for short-
listing the candidates is perfectly in tune with the legal position.
We, thus, find no error in the impugned judgments and dismiss these appeals.
( A.K. SIKRI )
CHIEF JUSTICE
October 03, 2012 (RAKESH KUMAR JAIN)
pc JUDGE
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