Himachal Pradesh High Court
Ms. Shweta Sadyal vs State Of H.P. & Ors on 21 April, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4435 of 2013 .
Date of decision: 21.4.2015.
Ms. Shweta Sadyal ...... Petitioner
Vs.
State of H.P. & ors. ..... Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes r 1 For the petitioner : Mr. K.S. Banyal, Advocate.
For the respondents : Mr. Shrawan Dogra, Advocate General with Mr. Rupinder Singh, Additional Advocate General, for respondent No.1.
Mr. Shrawan Dogra, Senior Advocate with Mr. D.K. Khanna, Advocate, for respondent No.2.
Ms. Uma Manta, Advocate, for
respondent No.3.
Tarlok Singh Chauhan, Judge (Oral).
The petitioner has prayed for the following substantive relief:-
(i) That the respondent No. 2 may very kindly be directed to re-draw/ recast the select list for the post of ADAs, the result of which was declared on 29.4.2013 by directing the respondent No. 2-HP Public service Commission to recommend the name of the petitioner against fifth post in general category, the petitioner and respondent No. 3 being barracked in merit of the interview, but being elder to respondent No. 3 by setting aside the selection/ recommendation of respondent No. 3.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 18:02:01 :::HCHP ...2...
2. Minimal but necessary facts which require mention are given below.
.
3. The petitioner is a post law graduate and pursuant to advertisement issued by the H.P. Public Service Commission (respondent No. 2) on 1.9.2012 applied for the post of Assistant District Attorney on contract basis.
4. The respondent No. 2 conducted a screening test for short-listing the candidates, whereafter only the qualified candidates were called for interview. The final select list was declared on 29.4.2013 wherein the name of the petitioner did not find place. The petitioner, therefore, sought information under the Right to Information Act (for short, RTI).
5. As per information received, it revealed that the respondent No. 3, who had obtained equal marks was ordered to be appointed on the basis of his having obtained higher marks in the screening test.
6. It is contended by the petitioner that the eligibility test was only for the purpose of short-listing the candidates and in the event of the marks being equal in the interview; it was the petitioner who was required to be selected as she was senior in age. In support of his contention the petitioner has relied upon the following provision of the advertisement: -
(i) In cases where the number of eligible candidates is inordinately large in proportion to the number of posts, the Commission may restrict the number of candidates to be called for interview by subjecting all the eligible candidates to a screening test. Since the purpose of holding screening test is only to shortlist the number of candidates, marks obtained ::: Downloaded on - 15/04/2017 18:02:01 :::HCHP ...3...
in screening test shall not be counted for deciding the merit of a candidate. Final selection of a candidate will be made .
solely on the basis of his/her performance in the viva-vice test/ interview, which will be of maximum 100 marks.; The minimum pass marks in interview are 45 for the candidates of general category and 35 marks for the candidates of reserved categories.
7. The respondent No. 2 has contested the petition, wherein preliminary submission has been raised to the effect that in the event of a tie in interview the rules of business of the Commission provide for counting of marks of screening test and this action of the respondent has already been upheld by this court in CWP No. 5764 of 2013 titled Manish Kumar vs. Himachal Pradesh Public Service Commission decided on 13.6.2013. Various other objections have been raised, which necessarily need not be gone into in view of limited controversy involved in the present case.
I have heard the learned counsel for the parties and have gone through the records of the case.
8. The Rules known as Himachal Pradesh Public Service Commission (Procedure & Transaction of Business and Procedure for the conduct of Examinations, Screening Tests & Interviews Etc.) Rules, 2007 (as amended up to 31st March, 2012) have been annexed with the reply as Annexure R-2/2. Rule 7 contained in Chapter V deals with the Selection of the candidates to be made as per procedure prescribed in the respective notified rules/ regulations.
Chapter -C thereunder relates to Interview and the clause relevant for determination of this petition is reproduced hereinunder:-
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"(iii) Whether selection is to be made on the basis of performance of the candidates having qualified the .
screening test, before the interview board, a candidate scoring more marks in the interview shall be placed above the candidates scoring lesser marks in the interview. If the candidates will score equal marks in an interview, then a candidate securing more marks in the screening test will be placed above the candidate securing lesser marks in the screening test. In case the marks of screening test are equal then the candidate who is senior in age will be placed above the candidate junior in age. Where selection is to be made r purely on the basis of performance of the candidates before the interview board, a candidate scoring more marks in the interview shall be placed above the candidates scoring lesser marks in the interview. If the candidates will score equal marks in a interview, then a candidate who is senior in age will be placed above the candidate junior in age."
9. Now what would be the relevance of these rules has been dealt with in detail by a learned Division Bench of this Court in Manish Kumar vs. Himachal Pradesh Public Service Commission (supra), wherein the aforesaid provision was considered alongwith a circular issued by the State Government, which provided that the final order of merit of the candidates in the event of tie of marks would be determined on the basis of the fact that the candidate higher in age will be ranked senior. If there is still a tie, the candidate who has scored more marks in written or screening test, as the case may be shall be ranked senior to the one who got lesser marks. This Court then held:-
"Notice was confined to respondent No.1 in response to order dated 27.7.2012. It appears that for selection of 27 ::: Downloaded on - 15/04/2017 18:02:01 :::HCHP ...5...
posts of Assistant Engineer (Electrical), Class-I, (Gazetted), advertisement was made and screening test was to be .
conducted. Thereafter, on the basis of the outcome of the screening test, the candidates were interviewed. Noticeably the number in screening test was not added with the interview for making final selection. It appears that the petitioner has secured 44 marks in screening test in comparison to 45 marks secured by respondent No.3, whereas in the interview both the petitioner and respondent No.3 had secured equal marks.
The relevant provision of the Rules of Business of the Himachal Pradesh Public Service Commission, 2007, reads as below:
r "Where selection is made by the interview of candidates qualified in the screening test, the candidate scoring more marks in the interview shall be placed above the candidates scoring less marks in the interview. If candidate score equal marks in interview, then the candidate scoring more marks in screening test wi ll be placed above the candidate securing less marks in the screening test. In case the marks of screening test are equal then the candidate who is senior in age will be placed above the candidate junior in age."
2. In view of above provision, the person who has secured higher marks in screening test was to be selected in case there is tie of marks in interview. In that condition, the age shall not be given preference.
3. On the other hand, learned counsel for the petitioner, has invited our attention to the Circular letter dated 11th July, 2005 issued by the Principal Secretary (Personnel) to the Government of Himachal Pradesh to the Secretary, Himachal Pradesh Subordinate Services Selection Board (Annexure P-6). The main contents of the observations are written here as below:
"............the final order of merit of candidates in the event of tie of marks shall be determined on the basis of the fact that the candidate higher in age will be ranked senior. If there is still a tie, the candidate who had secured more marks in written or screening test, as the case may be, shall be ranked senior to the one who got lesser marks."
"4. It has been submitted on behalf of respondent No.1 that the said Circular is only applicable to the services/posts ::: Downloaded on - 15/04/2017 18:02:01 :::HCHP ...6...
recruited under the Himachal Pradesh Subordinate Services Selection Board and is not guiding factor in respect of the .
selection being conducted by the Himachal Pradesh Public Service Commission. Learned counsel for the petitioner has also invited our attention to the judgment of the Supreme Court in State of Punjab and Others vs. Manjit Singh and Others (2003) 11 SCC 559, paragraph 11, which reads as below:
"11. In the case in hand, it was not for the Commission to have fixed any cut off marks in respect of reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have up- to-the mark merit, as prescribed by the Commission. r The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant-Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are with in the domain of the State Government. It cannot impose it s own policy decision in a matter beyond its purview."
5. We have heard learned counsel for the parties and also gone through the criteria and Rules of Business. In our considered view, also the Rules of Business prescribed by the Himachal Pradesh Public Service Commission shall carry force over the Circular issued by the State Government which is specifically not in respect of the selection to be made by the Himachal Pradesh Public Service Commission. Paragraph 11 referred by the learned counsel for the petitioner in Manjit Singh (supra) is rather helpful to protect the cause of the respondent No.3. Undisputedly, the respondent No.3 has secured higher marks in the screening test and equal marks in interview, as such, he has rightly been selected as ::: Downloaded on - 15/04/2017 18:02:01 :::HCHP ...7...
Assistant Engineer in comparison to the petitioner. In the facts and circumstances, the writ petition is without any merit and is .
dismissed."
10. Yet again, a similar controversy came up for consideration before another learned Division Bench of this court in CWP No. 5260 of 2013 Dr. Ashish Guleria vs. H.P. Public Service Commission & others decided on 2.8.2013 and it was observed as under:-
"2.
r to We find from the record that the petitioner and respondents No.2 to 3 are scoring equal marks in the interview. In this view of the matter, the Public Service Commission considered the marks of the candidates obtained in the screening test to break the tie where the respondents No.2 to 3 have scored higher marks than the petitioner. Learned counsel appearing for the petitioner submits that the marks obtained in the screening test cannot form the basis for breaking the tie. We are unable to accept this submission as this controversy already stands decided by this Court in CWP 5764 of 2012-G, titled as Manish Kumar versus H.P. Public Service Commission and others, decided on 13th June, 2013holding that the Rules of Business of the H.P. Public Service Commission provide that in case of a tie in the written test/interview, it is the marks in the screening test which will be considered for breaking the tie. We are also unable to accept this submission that Article 320 of the constitution does not provide/vest any power in the Himachal Pradesh Public Service Commission to frame any Rules of Business for the purpose of breaking the tie as envisaged. Petition is dismissed. "
11. Now a perusal of the aforesaid judgements would clearly that the issue raised in this petition is no longer res-integra as the learned Division Bench has categorically held that rules of ::: Downloaded on - 15/04/2017 18:02:01 :::HCHP ...8...
business prescribed by the Himachal Pradesh Public Service Commission shall carry force over the circular issued by the State .
Government, which is specifically not in respect of the selection to be made by the Himachal Pradesh Public Service Commission.
12. In view of the exposition of law as enunciated by the learned Division Bench(s), which otherwise is binding on this court, there is no scope for interference.
13. In view of the aforesaid discussion, I find no merit in this petition and the same is dismissed, leaving the parties to bear their own costs.
April 21, 2015. ( Tarlok Singh Chauhan ), (Hem) Judge.
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