Uttarakhand High Court
Dr Gyanendra Datta Sukla vs State Of Uttarakhand And Others on 5 August, 2015
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NANITAL
Writ Petition No. 259 of 2015 (S/B)
Dr. Gyanendra Datta Sukla
......Petitioner
Versus
State of Uttarakhand and others
......Respondents
With Writ Petition No. 260 of 2015 (S/B) Dr. Vandana Rani ......Petitioner Versus State of Uttarakhand and others ......Respondents With Writ Petition No. 261 of 2015 (S/B) Dr. Ajay Kumar Pandey ......Petitioner Versus State of Uttarakhand and others ......Respondents With Writ Petition No. 262 of 2015 (S/B) Dr. Surendra Pal Singh ......Petitioner Versus State of Uttarakhand and others ......Respondents With Writ Petition No. 263 of 2015 (S/B) Dr. Ila Revachand Tanna ......Petitioner Versus State of Uttarakhand and others ......Respondents With Writ Petition No. 278 of 2015 (S/B) Dr. Namrata Kulshrestha ......Petitioner Versus State of Uttarakhand and others ......Respondents With Writ Petition No. 279 of 2015 (S/B) Dr. Shailendra Pradhan ......Petitioner Versus State of Uttarakhand and others ......Respondents 2 With Writ Petition No. 280 of 2015 (S/B) Dr. Sheetal Verma ......Petitioner Versus State of Uttarakhand and others ......Respondents With Writ Petition No. 281 of 2015 (S/B) Dr. Meenu Srivastava Khare ......Petitioner Versus State of Uttarakhand and others ......Respondents With Writ Petition No. 282 of 2015 (S/B) Dr. Priyanka Rani ......Petitioner Versus State of Uttarakhand and others ......Respondents With Writ Petition No. 283 of 2015 (S/B) Dr. Manisha Dikshit ......Petitioner Versus State of Uttarakhand and others ......Respondents With Writ Petition No. 284 of 2015 (S/B) Dr. Sanjay Gupta ......Petitioner Versus State of Uttarakhand and others ......Respondents And Writ Petition No. 285 of 2015 (S/B) Dr. Rachna Gupta ......Petitioner Versus State of Uttarakhand and others ......Respondents 3 Mr. Yogesh Pacholia and Jayvardhan Kandpal, Advocates for the petitioners. Mr. H. M. Bhatia, Brief Holder for the State/respondent no. 1 Mr. Shailendra Nauriyal, Advocate for respondent nos. 3 and 4.
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
Date:‐ 5th August 2015
Judgment
Oral: K.M. Josepsh (C.J.)
Since common questions are raised in these writ petitions;
therefore, we are disposing of the same by a common judgment.
2. The petitioners have approached this Court seeking following reliefs:‐ "(i) Issue writ order or direction in the nature of certiorari for quashing the arbitrary condition of written examination/screening test for recruitment of the post of Assistant Professor/Associate Professor in Main Campus of the Uttarakhand Ayurved University.
(ii) Issue a writ order or direction in the nature of mandamus directing the respondents to hold the selection process of the posts of Assistant Professor/Associate Professor in Main Campus of the Uttarakhand University as per the prevailing rules and regulations.
(iii) Issue writ order or direction in the nature of certiorari for quashing the impugned notice dated 11.07.2015 whereby the selection process was stopped by the respondent no. 4 without assigning any reason.
(iv) Pass any other/further suitable order which this Hon'ble Court may deem fit and proper in the circumstances of the case"
3. The respondent/University issued an advertisement on 30th May 2015 (Annexure‐1) for filling up various posts of Assistant Professor and Associate Professor.
4. The petitioners are claiming to be applicants for the posts of Assistant Professor. The general conditions provided therein are as follows:‐ 4 "1. The appointment shall be on probation basis for two years for Assistant Professor and one year for Associate Professor and Professor.
2. Eligibility of a candidates and satisfaction of any other criteria (experience, age etc.) shall be considered as on date of interview.
3. In case of any dispute/ambiguity, if occurred, in the process of selection, the decision of the university shall be final.
4. Minimum/Maximum age limit shall be as per UGC Guidelines.
5. The University reserves the right to withdraw any advertised post(s) at any time without giving any reason or may increase or decrease the number of posts.
6. Relaxation of 5% marks (From 55% to 50%) will be provided for Master's level in case of SC/ST candidates for the post of Assistant Professor.
7. The candidates should bring their original certificates/marks‐sheets for verification at the time of interview.
8. No TA/DA will be paid to the candidates."
5. In short, therefore, the case of the petitioners is that the advertisement contemplates selection on the basis of the interview. By the impugned notification, which is issued as a corrigendum, it is stated that there will be a screening test. It is feeling aggrieved by the same that the petitioners are before this Court.
6. It is the case of the petitioners that no rules have been framed in the matter, and therefore, the conduct of the written examination is wholly arbitrary and illegal. The advertisement does not speak about written examination/ screening test and, therefore, it will be illegal. It is also the case of the petitioners that the imposition of the condition of written examination/screening test and in a short notice is arbitrary;
without making any rules, it is being done.
57. We have heard the learned counsel for the petitioners, learned counsel for the University and learned Brief Holder for the State.
8. The learned counsel for the petitioners would point out that the changes being introduced in the norms of selection are impermissible in law after the selection has commenced.
9. Per contra, the learned counsel for the University would submit that for 23 posts of Associate Professor, 246 applications were received. As far as for the posts of 23 Assistant Professor, 579 applications were received. He would therefore submit that in view of the large number of the applications received, it becomes necessary to hold the screening test.
10. Learned counsel for the petitioners would submit that actually all the petitioners are aspirants for the posts of Assistant Professor. Therefore, we are only focusing in these cases with regard to the position in regard to the posts of the Assistant Professor. The position appears to be that for the posts of 23 Assistant Professor 579 applications were received.
11. The learned counsel for the University would point out that the methodology adopted by the University is to conduct the screening test, as otherwise the Selection Committee would have had to interview the large number of candidates for very few posts. In this connection, he drew our attention to the following judgments. In AIR 1987 SC Page 454 (Ashok Kumar Yadav and others vs. State of Haryana and others), a Constitution Bench of the Hon'ble Apex Court was concerned with a 6 situation under the rules, where a composite test consisting of a written examination and a viva voce test had to be held. The Haryana Public Service Commission called for interview 1300 candidates. This was done on the basis that all 1300 candidates secured the minimum of 45% marks in the written examination.
The vacancies were, however, only 61. Therein the Hon'ble Apex Court held as follows:‐ "Where there is a composite test consisting of a written examination following by a viva voce test, the number of candidates to be called for interview in order of the marks obtained in the written examination, should not exceed twice or at the highest, thrice the number of vacancies to be filled.
(Para 20) In the instant case the Haryana Public Service Commission called for interview all candidates numbering over 1300 who satisfied the minimum eligibility requirement by securing a minimum of 45% marks in the written examination when the number of vacancies to be filled was merely 61. Held that calling such a large number of candidates for interview was not proper. However, in doing so, the Haryana Public Service Commission could not be said to be actuated by any mala fide or oblique motive, because it was common ground between the parties that this was the practice which was being consistently followed by the Haryana Public Service Commission over the years and what was done in this case was nothing exceptional. The selections made by the Haryana Public Service Commission could not be said to be vitiated merely on the ground that as many as 1300 and more candidates representing more than 20 times the number of available vacancies were called for interview. Something more than merely calling an unduly large number of candidates for interview must be show in order to invalidate the selections made.
(Paras 20, 21)"
12. In (1994) 6 SCC 293 (Madhya Pradesh Service Commission Vs. Navnit Kumar Potdar and another), a Bench of the two‐judges of the Hon'ble Apex Court was concerned with the following facts:‐ 7 This is a case where Public Service Commission issued an advertisement inviting applications for the posts of the Presiding Officer of the Labour Court. Nine posts had to be filled up, out of which only four posts were available to the general category candidates. In pursuance to which, several applications were received. The Madhya Pradesh Industrial Relations Act, 1960, provided that a person to be appointed as a Presiding Officer of the Labour Court should have practiced among other category candidates as an Advocate or a Pleader in Madhya Pradesh for a total period not less than five years, but the Commission decided to short list the candidates on the basis that only those who had completed seven and half years practice as an Advocate were to be called for interview. It is in this context that the Hon'ble Apex Court, inter alia, held as follows:‐ "10. This Court in the case of State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220] had to consider as to whether the appointments could have been offered only to those who had scored not less than 55% marks when Rule 8 which was under consideration, in that case, made candidates who had obtained 45% or more in competitive examination eligible for appointment. This Court held that Rule 8 was a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit and the one higher in rank is deemed to be more meritorious than the one who is lower in the rank. There was nothing arbitrary in fixing the scoring of 55% for the purpose of selection although a candidate obtaining 45% was eligible to be appointed.
11. In the case of Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417] it was said: (SCC p.446, para
20) ʺOnly 11 to 12 candidates are called for interview in a day of 5 1/2 hours. It is obvious that in the circumstances, it would be impossible to carry out a satisfactory viva voce test if such a large unmanageable 8 number of over 1300 candidates are to be interviewed. The interviews would then tend to be casual, superficial and sloppy and the assessment made at such interviews would not correctly reflect the true measure of the personality of the candidate.ʺ
12. On behalf of the respondents, it was pointed out that there is no presumption that an advocate having seven and half years of experience will be more suitable for the post of Presiding Officer of the Labour Courts than an advocate having only five years of experience because it all depends on the personal merit of the candidate concerned. It is true that it has been found that sometimes the persons with lesser years of experience and practice have proved to be better advocates and they excel in profession. The success in profession is not necessarily linked with the years of practice. But that may be an exception. Normally, it is presumed that with longer experience an advocate becomes more mature. In any case, this fixing the limit at seven and half years instead of five years of the practice for purpose of calling the interview cannot be said to be irrational, arbitrary having no nexus with the object to select the best amongst the applicants.
13. The High Court has taken the view that raising the period from five years to seven and half years' practice for purpose of calling the candidates for interview amounted to changing the statutory criteria by an administrative decision. According to us, the High Court has not appreciated the true implication of the short‐listing which does not amount to altering or changing of the criteria prescribed in the rule, but is only a part of the selection process. The High Court has placed reliance on the case of Praveenkumar Trivedi v. Public Service Commission, M.P [ 1986 Lab IC 1990 (MP)] where it has been pointed out that Commission cannot ignore a statutory requirement for filling up a particular post and cannot opt a criteria whereby candidates fulfilling the statutory requirements are eliminated from being even called for interview. As we have already pointed out that where the selection is to be made purely on the basis of interview, if the applications for such posts are enormous in number with reference to the number of posts available to be filled up, then the Commission or the Selection Board has no option but to short‐list such applicants on some rational and reasonable basis."
913. The learned counsel for the University sought to draw considerable support from this judgment to contend that the short screening test/ written examination to be held in this case is justified, though, it is a decision taken by the Selection Committee.
14. (1997) 4 SCC page 664 (Union of India and anr. vs. T. Sundararaman and ors.) was a case where the Union Public Service Commission advertised for three posts of Assistant Professor for medicine for which minimum three years experience was prescribed. Therein, the Bench of two‐judges took note of Note 21 to the advertisement, wherein it was stated that possession of minimum qualification would not entitle the candidates to be called for the interview. It was specifically provided that a Commission, when it is found that number of applications received is large and it will not be convenient or possible for the Commission to interview all the candidates, it may restrict the number of candidates to a reasonable limit on the basis of the qualification and experience higher than the minimum prescribed in the advertisement or by holding a screening test. Apparently pursuant to the same, the Commission decided to hold the screening test. They short listed the candidates on the basis of the experience which was more than what is the minimum. We may notice from the judgment that the Hon'ble Apex Court drew support from the judgment, reported in (1994) 6 SCC 293. The Hon'ble Apex Court also referred to the judgment of Govt. of Andhra Pradesh vs. P. Dilip Kumar and anr. JT (1993) 2 SC 138, in which it is held that it is always open to the recruiting agency to screen candidates so that the field of selection can be narrowed down 10 with the ultimate objective of promoting candidates with higher qualifications to enter the zone of consideration.
15. In (2005) 4 SCC 154 (Secretary A.P. Public Service Commission vs. B. Swapna and others) we notice that a Bench of two‐judges was faced with the situation of relaxation in the eligibility conditions and it was frowned upon. It was a case where the Court took the view that the Selection Committee has no power to relax the essential qualifications. The Hon'ble Apex Court held as follows:‐ "15. Another aspect which this Court has highlighted is scope for relaxation of norms. Although Court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramchandra Iyer and Ors. v. Union of India and Ors. (1984 (2) SCC 141) this Court held that once it is established that there is no power to relax essential qualification, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised.
16. In State of U.P. v. Rafiquddin and Ors. (1987 (Supp) SCC 401), it was inter alia, held as follows: (SCC p. 428, para 30) ʺ30. Before we close we would like to refer certain aspects which came to our notice during the hearing of the case relating to the functioning of the Public Service Commission, selection of candidates and their appointment to the Judicial Service. We were distressed to find that the Public Service Commission has been changing the norms fixed by it for considering the suitability of candidates at the behest of the State Government after the declaration of results. We have noticed that while making selection for appointment to the U.P. Judicial Service the Commission had initially fixed 40 per cent aggregate marks and minimum 35 per 11 cent marks for viva voce test and on that basis it had recommended list of 46 candidates only. Later on at the instance of the State Government it reduced the standard of 40 per cent marks in aggregate to 35 per cent and on that basis it forwarded a list of 33 candidates to the government for appointment to the service. Again at the behest of the State Government and with a view to implement the decision of the high level committee consisting of Chief Justice, Chief Minister and the Chairman of the Commission forwarded name of 37 candidates in 1974 ignoring the norms fixed by it for judging the suitability of candidates. The Commission is an independent expert body. It has to act in an independent manner in making the selection on the prescribed norms. It may consult the State Government and the High Court in prescribing the norms for judging the suitability of candidates if no norms are prescribed in the Rules. Once the omission determines the norms and makes selection on the conclusion of the competitive examination and submits list of the suitable candidates to the government it should not reopen the selection by lowering down the norms at the instance of the Government. If the practice of revising the result of competitive examination by changing norms is followed there will be confusion and the people will lose faith in the institution of Public Service Commission and the authenticity of selection.ʺ
17. In Maharashtra State Road Transport Corpn. And Ors. v. Rajendra Bhimrao Mandve and Ors. (2001 (10) SCC 51), it was held as under: (SCC p. 55‐56, para 5) ʺIt has been repeatedly held by this Court that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. Therefore, the decision of the High Court, to the extent it pronounced upon the invalidity of the circular orders dated 26.6.1996, does not merit acceptance in our hand and the same are set aside.ʺ
18. In Krushna Chandra Sahu (Dr.) v. State of Orissa and Ors. (1995(6) SCC 1), it was held as under: (SCCp.13, paras 34‐36) ʺ34. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In P.K. Ramachandra Iyer v. Union of India (1984 (2) SCC
141) it was observed: (SCC pp.180‐81, para 44) 12 'By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm.'
35. Similarly, in Umesh Chandra Shukla v. Union of India (1985(3) SCC 721), it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Durgacharan Misra v. State of Orissa (1987(4) SCC 646) and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce.
36. It may be pointed out that rule‐making function under Article 309 is legislative and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana (1980 Supp SCC 524). For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection.ʺ The Commission has been given right to freeze any ranking list. The selection from the ranking list from amongst the posts advertised was limited to the cases where the selected candidates had relinquished the selection or who had not joined the duties within the given time and also new requisitions sent by the appointing authority. The Commission did not think it appropriate to make appointment from the new requisitions. The fact that the Commission had directed that fresh advertisements were to be made is clearly indicative of the fact that the Commission did not want the new requisitions were to be filled up by appointing from the ranking list in force. The Tribunal and the High Court were therefore not justified in holding by referring to the amended rule that the fall out vacancies were to be filled up from the ranking list. The fall out vacancies in terms of the amended notification were to be notified in the next recruitment. Case of the applicant all through has been that her claim was relatable to the 14 vacancies indented on 14.4.1997 and in particular the open category. It is not her case that Commission had directed fresh advertisement though it had not freezed the rank list. It is not disputed that there cannot be direction for fresh advertisement unless the rank list is freezed. The materials placed on record clearly show that before directing fresh advertisement, the Commission had in fact 13 for reasons recorded directed freezing. Unfortunately, the Tribunal did not grant adequate time to the Commission to produce relevant records and the High Court proceeded on erroneous premises that the amended rules applied. Therefore, looked at from any angle, the High Court's judgment affirming Tribunal's judgment cannot be maintained."
16. Shri Hari Mohan Bhatia, learned Brief Holder for the State, in fact, draw our notice to a judgment rendered in Writ Petition No. 1231 of 2009 (S/S) by a learned Single Judge. That was a case where selection was done under the Uttarakhand Ayurvedic and Unani Pharmacist Service Rules, 2009. Rule 15 of the said Rules provided for the procedure for direct recruitment. The Selection Committee by a resolution, however, purported to amend the said Rules observing that the select list would be prepared on the basis of marks obtained year wise/month wise with the stipulation that a candidate, who had passed in the first attempt without any supplementary examination or back paper, would be placed ahead in the seniority list from those candidates who cleared the examination by giving supplementary examination or back paper. This was in the teeth of the Rules. The learned Single Judge took the view that the resolution of the Selection Committee to amend the Rules is illegal. It is submitted that the judgment has been upheld by the Division Bench of this Court, but we must notice at once that what the Selection Committee purported to do in the said case was found to be clear in violation of the statutory rules. We must notice that we may broadly state that there can be two situations. In a case, where the matter is governed by either rules or executive instructions issued by the Appointing Authority, unless there is power given thereunder to the selection body to relax the 14 qualifications, it is not open to the selection body to relax the qualification. In this case, as in the case in (1994) 6 SCC 462, it is not a case, where the qualifications are sought to be relaxed.
The situation is one where, according to the University, it is in receipt of large number of applications in comparison to the large number of posts to be advertised. That is to say against 23 posts of Assistant Professor, 579 applications are received. We have noticed that in Ashok Kumar Yadav's case, the Hon'ble Apex Court has, in fact, laid down that normally not more than two, but at the maximum not more than three persons qua the posts/qualifications must be called for the interview.
17. In this case, we are not provided with any particulars as to for which post the petitioners have applied for among the posts. We are also not told vis‐à‐vis each posts how many applications are received. In other words, for the totality of 23 posts of Assistant Professor global figure of 579 is indicated. We must first decide as to whether procedure adopted of issuing a corrigendum when no mention is made about the written test in the original advertisement is permissible. The case of the petitioners is that there are no rules in respect of the posts.
According to Shri H.M. Bhatia, the rules also provide for interview.
18. What is involved in these cases is that in view of the large number of the applicants, Selection Committee has taken a decision to hold the written examination to short list the persons to be called for the interview. Therefore, the requirement of deciding the matter on the basis of performance in interview is not done away with. What is being done is only 15 to decide the persons who will be called for the interview in view of the number of the applicants. This, we would think, if the number of posts is few and applicants are many, would appear to be permissible in law. Having stated the same as a general proposition, we must pass on to consider what order is to be passed, when the full facts are not present before us.
19. There is yet another dimension which is that the learned counsel for the University points out the urgency that is the UGC has fixed 31st August 2015 as the date by which appointments must be made. Originally, the written examination was scheduled to be held on 19th July, 2015, but the said date was kept in abeyance. We have noticed that one of the arguments of the petitioners was that they are being asked to take examination at short notice. Now some time has already elapsed. Therefore, in our view holding of screening test would be justified, if the number of applicants is in excess to the number of posts to be filled. We uphold generally the principle that has been enunciated by the Selection Committee but we must also issue specific directions as to in what circumstances the test will not be held. We have noticed that in Ashok Kumar Yadav's case the Court has taken a view that upto maximum three persons can be called for interview. We would, therefore, dispose of the writ petitions in the following fashion:‐
(i) We uphold the contention that screening test can be imposed, if when there is large number of candidates.
However, we would direct that screening test will be held only in those cases where there are more than five candidates who have applied for any one post. In other words, if the number of applicants, who fulfill the 16 requirements, are five or less than five no screening test shall be held.
(ii) Regarding the syllabus, the University will on or before 10.08.2015 publish in its website, in the notice board of its office as also in one Hindi news paper having wide circulation in the State of Uttarakhand regarding details of the syllabus on the basis of which the screening test will he held.
(iii) We record the submission of the learned counsel for the respondent University that the written test will be held only on 23.08.2015. The holding of the screening test is being permitted only for the purposes of short listing the candidates, in the circumstances as we have indicated above.
(iv) We have already noticed the second prayer in these writ petitions. Therefore, we direct that the selection will be held strictly in accordance with all the relevant rules and regulations otherwise applicable.
(V.K. Bist, J.) (K.M. Joseph, C.J.) 05.08.2015 Parul