Himachal Pradesh High Court
Ms. Lata Devi Rt vs Subordinate Selection Board Hamirpur ... on 1 April, 2016
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No.4077 of 2015 alongwith CWPs No.4265 of 2015 and 18 of 2016.
Judgment reserved on: 23.03.2016.
Date of decision: April 01, 2016.
of
1. CWP No.4077 of 2015.
Ms. Lata Devi rt .....Petitioner.
Versus
Subordinate Selection Board Hamirpur and another .....Respondents.
For the Petitioner : Mr. Dushyant Dadwal, Advocate.
For the Respondents: Ms.Archana Dutt and Ms.Aruna
Sharma, Advocates, for
respondent No.1.
Mr.Shrawan Dogra, Advocate
General with Mr.Romesh Verma,
Mr.V.S.Chauhan, Additional
Advocate Generals and Mr. J.K.
Verma, Deputy Advocate General,
for respondent No.2.
2. CWP No.4265 of 2015.
Usha Devi .....Petitioner.
Versus
Himachal Pradesh Subordinate Services Selection Board and another .....Respondents.
For the Petitioner : Mr. Ramakant Sharma, Advocate.
For the Respondents: Ms.Archana Dutt and Ms.Aruna
Sharma, Advocates, for
respondent No.1.
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2
Mr.Shrawan Dogra, Advocate
General with Mr.Romesh Verma,
Mr.V.S.Chauhan, Additional
.
Advocate Generals and Mr. J.K.
Verma, Deputy Advocate General,
for respondent No.2.
3. CWP No.18 of 2016.
Ms.Asha Kumari .....Petitioner.
of
Versus
H.P. Subordinate Selection Board Hamirpur rt .....Respondent.
For the Petitioner : Mr. Dushyant Dadwal, Advocate.
For the Respondent : Ms.Archana Dutt and Ms.Aruna Sharma, Advocates.
Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1Yes Tarlok Singh Chauhan, Judge.
Since common question of law and fact arise for consideration in these petitions, they were taken up together for consideration and are being disposed of by a common judgment.
2. The petitioner(s) have participated in the selection process for the post of Steno-typist and now their grievance is that the respondents at the time of final evaluation have while filling up these posts deviated from the terms and conditions of the advertisement and, therefore, the entire process deserves to be declared null and void. It is averred that once the petitioner(s) had attained the requisite speed in shorthand as also in typewriting, Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 20:02:04 :::HCHP 3then they were required to be awarded full marks and the candidate with a faster speed could not have been awarded higher marks than .
the petitioner(s) thereby defeating the very terms and conditions as set out in the advertisement.
3. In response to the petitions, the respondents have of questioned the very maintainability of the petitions on the ground that no injustice has been caused to the petitioner(s). It is further rt averred that the evaluation of the answer-sheets of typing skill test of all the candidates has been carried out as per the prevalent formula/mechanism devised and approved by the respondents in the year 2011 under the mandate of Rule 15.1 of Business and Procedure, 2004 of the Board which is as under:-
"Mode of selection for the post of Steno-typist, Junior Scale Stenographer and Senior Scale Stenographer is as under:
1. Objective type written screening test (MCQ) consisting of General English and Hindi upto 10+2 standard, General Knowledge including General Knowledge of Himachal Pradesh, Everyday Science, Current affair & Logic.
= 100 Marks.
2. Skill test in Shorthand either in English or Hindi and typewriting on computer of prescribed speed (as per R&P Rules) of Hindi & English for those who qualify objective type screening test.
= 100 Marks
3. Interview of those who qualify shorthand and typing skill test.
= 30 marks The distribution of 100 marks for skill tests for the post of Steno- typist, Junior Scale Stenographer is made as under:
Total Marks for skill test : 100
i. Shorthand (English or Hindi) : 40
ii. Typewriting Test (English) : 30
iii. -do- (Hindi) : 30
The distribution of 100 marks for Skill tests for the post of Senior Scale Stenographer is made as under:
Total Marks for skill test : 100 ::: Downloaded on - 15/04/2017 20:02:04 :::HCHP 4 i. Shorthand (English) : 30 ii. Shorthand (Hindi) : 30 iii. Typewriting Test (English) : 20 . iv. -do- (Hindi) : 20
FORMULA TO WORK-OUT THE TYPING SPEED & MARKS:
5% mistakes of the total words typed may be ignored.
No. of total words typed - (No. of Mistakes x 10) = Net speed Time of Maximum Marks (MM) Qualifying Marks (QM) = 60% of MM (as per DGET Norms) rt Qualifying Penalty Marks (QPM) = MM - QM.
Marks obtained: Maximum Marks x Net speed - Qualifying Penalty Marks (QPM) Qualifying Speed.
FORMULA TO EVALUATE THE SHORTHAND ANSWER SHEET:
i. 5% of total words relaxation in mistakes. ii. For next 10 mistakes, half mark for each mistake to be deducted.
iii. For other mistakes, 01 marks for each mistake to be deducted."
4. It is also averred that the aforesaid formula/mechanism has been hosted on the web page of the respondents as per the directions given by the H.P. State Administrative Tribunal.
We have heard the learned counsel for the parties and have gone through the records of the case.
5. At the outset, we may make note of the contents of the advertisement issued on 08.07.2014 and the relevant code for our purpose is 403 and the same reads as under:-
"403 i) Should have passed 10+2 examination or its equivalent rom a Steno-typist from a Board of School Education/University recognized by the H.P. H.P.Govt.
ii) Should possess the following speed in Shorthand and Type writing on computers in both the language i.e. E nglish & Hindi at the time of initial recruitment.
Speed in shorthand Speed in Typewriting on computers ::: Downloaded on - 15/04/2017 20:02:04 :::HCHP 5 English Hindi English Hindi 60 60 25 25 .
Provided that at the time of initial recruitment the candidate shall have to pass shorthand test in either of the language i.e. in Hindi or English at the prescribed speed.
Provided further that the candidates will have to pass typewriting test in both the languages at the time of initial recruitment.
of Provided further that the incumbent having passed shorthand in one language at the time of initial recruitment at the the prescribed speed shall have to pass the shorthand test in second language either in Hindi or English whichever may be as prescribed supra within a period of three years from the rt date of appointment. The appointment letter of such candidate
(s) who does not qualify the shorthand test in second language shall contain the specific condition that he shall have to pass the test in shorthand test in second language within a period of three years and if he qualifies the test in shorthand test in second language within a period of three years he will be eligible to draw his annual increment from due dates and the candidate(s) who qualifies the said test after three years will be eligible to draw his first increment only from the date of qualifying the prescribed test.
iii) Should have a knowledge of word processing in computer as prescribed by the recruiting authority.
Desirable knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh."
6. The criteria for selection is prescribed in the rules, whereas, it is only the conditions of eligibility and other details that are set out in the advertisement. The advertisement contains the details of the number of posts available for selection and also prescribes therein the essential qualifications and other eligibility criteria. The Court, at this stage, is only required to oversee and ensure that the procedure being adopted by the respondents for filling-up the posts in question is fair and transparent.
7. It would be evident from the advertisement that the qualification prescribed therein only indicates a benchmark or ::: Downloaded on - 15/04/2017 20:02:04 :::HCHP 6 bottom line i.e. the eligibility criteria for selection. It is only those candidates, who qualify and meet the minimum prescribed .
qualification who can further be considered for selection which in turn would then be determined upon their performance and ultimately determine the merit of the respective candidates. The of mere fact that the petitioner(s) had attained the prescribed speed would only make them eligible for further consideration, but would rt not entitle them for being awarded maximum marks. The maximum marks would obviously be awarded for maximum speed coupled with error-less shorthand or typewriting speed as the case may be.
8. Faced with this situation, the learned counsel for the petitioner(s) would contend that the selection process has to be conducted strictly in accordance with the stipulated selection procedure and the same needs to be scrupulously maintained.
There can be no relaxation in the terms and conditions of the advertisement and the respondents could not have themselves changed the eligibility criteria by raising the benchmark which was not stipulated in the advertisement. It is further contended that the respondent could not have changed the norms of recruitment process during the pendency of the selection process.
9. In support of their contentions, the learned counsel for the petitioner(s) have placed reliance upon judgments of the Hon'ble Supreme Court in Bedanga Talukdar versus Saifudaullah Khan and others (2011) 12 SCC 85, Duddilla Srinivasa Sharma and others versus V.Chrysolite (2013) 16 SCC 702, Public ::: Downloaded on - 15/04/2017 20:02:05 :::HCHP 7 Service Commission, Uttaranchal versus Jagdish Chandra Singh Bora and another (2014) 8 SCC 644 and Renu and others .
versus District and Sessions Judge, Tis Hazari Courts, Delhi and another (2014) 14 SCC 50.
10. There can be no quarrel with the proposition that the of advertisement is sacrosanct and has, therefore, to be religiously followed. But, then the moot question is as to whether the rt respondents have in any manner deviated from rules and advertisement.
11. We may, at this stage, note that the petitioner(s) after undergoing written/screening test have been shortlisted to appear in the typing and shorthand skill tests and were thus fully aware of the requirement of excellence in the tests. They were fully aware that they would have to compete in the further test which would be evaluated on the basis of the high speed and error-free shorthand and typing tests of the candidates. The petitioner(s) are presumed to be aware that the advertisement only prescribes the basic eligibility criteria and further details would be available in the rules, statutory instructions and guidelines etc. and would further be presumed to be fully aware and conscious that allocation of marks would be based entirely on performance.
12. Even otherwise, every candidate who participates and undergoes a selection is deemed to be aware that he/she has to excel as it would be then alone that he/she can be considered on ::: Downloaded on - 15/04/2017 20:02:05 :::HCHP 8 merits. After-all, the selection means to pick out the best and most suitable candidate based upon performance.
.
13. Therefore, in such circumstances, we are at a loss to understand as to how the respondents have given a complete go-by to the advertisement or have not adhered to the same in letter and of spirit as alleged. Rather, it is the petitioner(s), who have proceeded with this litigation on fallacious premises.
14. rt That apart, it would be noticed that the petitioner(s) in pursuance to the advertisement have participated in the selection process with their eyes wide open. In case, the petitioner(s) entertained any doubt regarding awarding of any marks or had found any other discrepancy in the advertisement, then they should have sought clarification from the respondents before participating in the selection process. But, having participated in the selection process, the petitioner(s) cannot now turn around and question the method of selection. This is the settled position of law and to buttress the same we only need to refer to a recent judgment of the Hon'ble Supreme Court in Madras Institute of Development Studies and another vs. K. Sivasubramaniyan and others (2016) 1 SCC 454, wherein the Hon'ble Supreme Court held as under:-
"14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.
15. In Dr. G. Sarana vs. University of Lucknow & Ors., (1976) 3 SCC 585, a similar question came for consideration before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Athropology in ::: Downloaded on - 15/04/2017 20:02:05 :::HCHP 9 the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the .
petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held: (SCC p.591, para 15) of "15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the rt appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: (AIR p.432, para 9) '9. ..It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.' "
16. In Madan Lal & Ors. vs. State of J&K & Ors. (1995) 3 SCC 486, similar view has been reiterated by the Bench which held that: (SCC p.493, para 9) "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of ::: Downloaded on - 15/04/2017 20:02:05 :::HCHP 10 marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute .
between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to of have emerged successful as a result of their combined performance both at written test and oral interview, they rt have filed this petition. 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 or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla 1986 Supp. SCC 285, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
17. In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576, this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p. 584, para 16) "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly ::: Downloaded on - 15/04/2017 20:02:05 :::HCHP 11 disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the .
writ petition."
18. In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others, (2013) 11 SCC 309, recently a Bench of this Court following the earlier decisions held as under: (SCC p.320, para 24) of "24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part rt in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
15. In addition to the aforesaid, we also find that the petitioner in CWP No.4077/2015 has already approached the H.P. State Administrative Tribunal by filing O.A.No.2900/2015 and the said petition is still pending before the learned Tribunal and infact on 26.08.2015 the learned Tribunal passed the following order:-
"Heard. Notice.
Ms. Aruna Sharma, learned standing counsel waives service of notice on behalf of the sole respondent. Reply be filed within four weeks.
In so far as prayer for interim relief is concerned, suffice it to say that the respondent-Board shall evaluate the performance of the candidates in the typing skill test strictly in accordance with the criteria/rules/regulations holding the field, which may also be put in the public domain.
List on 28.09.2015.
Copy dasti."::: Downloaded on - 15/04/2017 20:02:05 :::HCHP 12
16. Though, a copy of the order has been placed as Annexure P-8 with the petition, but the same has not been assailed .
before this Court. Once, that is so, then the instant petition is not maintainable as the petitioner without assailing the order of the learned Tribunal cannot directly file and maintain the present of petition before this Court in matters covered under the provisions of the Administrative Tribunal Act. It is only against the orders passed rt by the learned Tribunal whether interlocutory or final that a writ petition can be filed before this Court.
17. That apart, CWPs No.4265/2015 and 18/2016 have directly been filed before this Court without first approaching the learned Administrative Tribunal and are, therefore, not maintainable before this Court.
18. In view of the aforesaid discussion, not only are the petitions not maintainable before this Court but they even lack merit and, therefore, dismissed as such. The parties are left to bear their own costs. The pending applications, if any, also stand disposed of.
The Registry is directed to place a copy of this judgment on the files of connected matters.
(Mansoor Ahmad Mir), Chief Justice.
( Tarlok Singh Chauhan), April 01, 2016. Judge.
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