Himachal Pradesh High Court
Reeta Devi vs State Of Himachal Pradesh & Others on 18 April, 2017
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 1878 of 2015 Judgment Reserved on :14.03.2017 .
Date of Decision: :18.04.2017
____
Reeta Devi ...Petitioner
Versus
State of Himachal Pradesh & others ...Respondents
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?____.
For the petitioner : Ms. B.S. Chauhan, Senior Advocate, with Mr. Munish Thakur, Advocate.
For the respondents :Mr. Pankaj Negi, Deputy Advocate.
General, for respondents No. 1 to 3.
:Mr. Ashwani K. Sharma-II, Advocate, or respondent No. 4.
Vivek Singh Thakur, Judge In the instant petition, order dated 26.02.2015, (Annexure P-3) passed by Deputy Commissioner, Hamirpur is under challenge vide which appointment of petitioner as Anganwari worker at Anganwari Centre Himmer, District Hamirpur (here-in-after referred to as the 'Centre') has been set aside in appeal, filed by respondent No. 4, under ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 2 Scheme/Guidelines for Engagement of Anganwari Workers/Helpers (here-in-after referred to as 'the Scheme').
.
2. In the Scheme notified on 05.10.2009, (Annexure-
PA), minimum qualification for appointment of Anganwari worker was Matric or equivalent and distribution of marks under Rule 7 was also provided on the basis of said qualification. However, vide Notification dated 19th June, r to 2010 (placed on record during hearing), eligibility criteria and distribution of marks was amended by respondent-
State. By substituting Rule 4 of the Scheme, 10+2 or equivalent was made as minimum educational qualification for Anganwari workers and substituted Rule 7 provided distribution of marks as under:
"7. Marks Selection shall be based on merit out of the total marks of 25. Marks will be awarded as follows:-
1. Anganwari Workers A) Maximum 13 Marks for educational qualification will be given in the following manner ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 3
i) Percentage of Marks in 10+2 divided by 10 subject to the maximum of 10 marks.
ii) Candidates who possess higher educational qualification will be given 3 additional marks as .
follow:-
Graduates=Additional Two marks for Graduation. Post Graduates & above =Additional 3 marks (2+1) Two for, Graduation and one additional mark for post graduation and above.
B) Maximum 2 marks for experience to be given as under:-
C) 2 marks for disabled women having 40% and above disability subject to the condition that the type of disability is not such as to hamper the discharge of her job responsibility. D) 2 marks for SC/ST/OBC candidates.
E) 2 marks for State Home/Balika Ashram Inmates/Orphans/ Widows/Destitues and Divorcees.
F) 4 marks for personal interview.
Total 25 marks
3. Petitioner and respondent No. 4 alongwith others, applied for appointment as Anganwari worker in the Centre, appeared in interview held on 28.02.2011 conducted by Selection Committee constituted under Rule-3 of the Scheme.
::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 44. Out of four candidates, one Ranjna Kumari did not appear in the interview whereas another Neelma Kumari was found ineligible for want of requisite academic .
qualifications. Petitioner was declared selected securing 6.97 marks aggregate after interview whereas respondent No. 4 was kept in waiting list with 6.7 marks as evident from result sheet Annexure P-1 to the petition.
5. on 14.03.2011, respondent No. 4, preferring an appeal/objection before the competent authority under the Scheme challenged appointment of petitioner. In the said appeal, Sub Divisional Officer (Civil) Bhoranj made an inquiry through CDPO, Tauni Devi who found that respondent No. 4 was aggrieved by awarding lesser marks to her in the interview, whereas, as per Committee marks were awarded as per performance of the individual and guidelines and rules framed by the Department. Thereafter, respondent No. 4 preferred CWP No. 6178/2014 in this Court which was disposed of with direction to Deputy Commissioner, Hamirpur (respondent No. 2) to consider and decide representation of respondent No. 4 within two months of receipt of certified copy, in accordance with law ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 5 by affording due opportunity of hearing/representation to her by assigning reasons in its decision and communicating the said decision to her. It was also clarified that decision .
in writ petition was not in favour of respondent No. 4 and respondent No. 4 was also granted liberty to place additional material if any, on record.
6. Deputy Commissioner, Hamirpur vide impugned order (Annexure P-3) set aside appointment of petitioner on the ground that out of four marks, respondent No. 4 was awarded only 1 mark which came to be 25% of total 4 marks provided for interview in the Scheme, whereas petitioner was awarded 3 marks (75%) in the said interview despite the fact that respondent No. 4 was having 18% higher marks than petitioner in 10+2 examination. Deputy Commissioner further observed as under:-
"Interestingly, there are broad guidelines that no candidate is to be given less than 40% or more than 80% in an interview until unless there are exceptional circumstances. Thus, it appears that the petitioner who has the best academic record had worst the possible interview. If we go by norms of her having got 1.6 marks (40%), she would still appear ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 6 as the overall topper. The academic achievement gap of the petitioner and respondent is too big to reconcile the difference in interview marks. This is further corroborated by the fact that even a person who was .
unqualified was felt to be good enough for 50% interview marks".
7. On the basis of aforesaid observations, Deputy Commissioner held that there appeared a deliberate attempt to tilt the advantage in favour of petitioner and, thus, set aside selection of petitioner with direction to conduct fresh interview to the post and liberty, to all eligible candidates including petitioner and respondent No. 4 or any other persons who had appeared in the interview for the post of Anganwari worker, was also granted to participate in process. Hence present petition.
8. Respondents No. 1 to 3 filed joint reply to the petition in which they reiterated the events, quoted reasons preferred by Deputy Commissioner to set aside the appointment of petitioner but without commenting upon justification of impugned decision and without placing on record any material in support of the same. With rejoinder filed by petitioner to the reply of respondents No. 1 to 3, ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 7 copy of unamended Scheme notified vide Notification dated 05.10.2009 was also placed on record. During hearing of the case, learned Deputy Advocate General placed a copy .
of Notification dated 19th June, 2010 on record vide which amended provision of the Scheme were substituted as referred supra. Respondent No. 4 has not preferred to file any reply.
9. Learned counsel for petitioner submits that impugned order is based on surmises, conjectures and without any legitimate basis as there are no broad guidelines either on record or otherwise, as referred by Deputy Commissioner in impugned decision quoting that no candidate is to be given less than 40% or more than 80% marks in an interview except for exceptional circumstances.
It is also contended that Deputy Commissioner, while hearing the appeal as provided in the Scheme, exceeded his jurisdiction by sitting over evaluation carried out in interview by Selection Committee and has reassessed the merit on the basis of academic qualification despite the fact that performance of a candidate in an interview may not always be proportionately equally good as to marks ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 8 obtained in academic qualification. It is urged that there is no illegality, irregularity and perversity committed by the Selection Committee in awarding marks to petitioner in .
interview and that selection of petitioner to the post of Anganwari worker on the basis of overall merit is in accordance with law.
10. Learned counsel for petitioner has relied upon pronouncement of Hon'ble Supreme Court in case 'Durga Devi and another versus State of H.P. and others, reported in (1997) 4 SCC 575 in which it has been held as under:-
"3. It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates.
Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the Constitution of the Committee or its procedure vitiating the selection, or proved mala fides, affecting the selection etc. It is not disputed that in ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 9 the present case the University had constituted the Committee in due compliance with the relevant status. The Committee consisted of experts and it selected the candidates after going through all the relevant .
material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction.
4. In the instant case, as would be seen from the perusal of the impugned order, the selection of the appellants has been quashed by the Tribunal by itself scrutinizing the comparative merits of the candidates and fitness for the post as if the Tribunal was sitting as an appellate authority over the Selection Committee. The selection of the candidates was not quashed on any other ground. The Tribunal fell in error in arrogating to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for appointment. That was the function of Selection Committee. The observations of this Court in Dalpat Abasaheb Solunke case are squarely attracted to the facts of the present case. The order of the Tribunal under the circumstances cannot be sustained. The appeal succeeds and is allowed. The impugned order dated 10-12-1992 is quashed and the matter is remitted to the Tribunal ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 10 for a fresh disposal on other points in accordance with the law after hearing the parties".
11. Learned counsel for petitioner has also relied .
upon judgment passed by this Court in case Pawan Kumar Thakur Versus Dr. Y.S. Parmar University and others, reported in (2011) 2 SLC 124 in which marks awarded in interview were also questioned. As per ratio of this judgment marks can be questioned by alleging malafide against the Selection Committee, but for that Selection Committee is, necessarily, to be added as party whereas in present case in its appeal before Deputy Commissioner, respondent No. 1 had neither alleged malafide nor arrayed Selection Committee or its members as respondent.
12. Relying upon another judgment of this Court passed in Amar Nath Rana Versus State of Himachal Pradesh and connected matter, reported in (2012) 3 Him.
L.R. 1557, it is submitted on behalf of petitioner that selection only on the basis of marks of viva-voce is also permissible under law whereas in present case only 4 marks out of 25 marks have been awarded which are 16% of total ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 11 marks, available with the Selection Committee to be awarded in interview.
13. Learned Deputy Advocate General has reiterated .
its stand taken in reply and has justified impugned order.
However, despite numerous adjournments, neither Deputy Advocate General nor respondent No. 4 was able to place on record any document/guidelines as referred by Deputy Commissioner in impugned order, providing that no candidate is to be given less than 40% and more than 80% in an interview except in exceptional circumstances.
14. Learned counsel for respondent submits that 4 marks provided for viva voce in the Scheme are unconstitutional and impermissible under law as it comes to be 16% which is higher than 15% of total marks and in numerous pronouncement of the Courts, 15% of total marks is the maximum limit which can be provided to the Selection Committee for interview. In support of his contention learned counsel has relied upon pronouncement of Constitutional Bench of Hon'ble Supreme Court in case Ajay Hasia and others Versus Khalid Mujib Sehravardi and others, reported in (1981) 1 SCC 722. It was a case ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 12 pertaining to admission in Regional Engineering College to the first semester of the B.E. course in which it was held as under:
.
"We are of the view that, under the existing circumstances, allocation of more than 15 per cent of the total marks for the oral interview would be arbitrary and unseasonable and would be liable to be struck down as constitutionally invalid".
15. It is contended on behalf of respondent No. 4 that in view of ratio of Law laid down by the Apex Court in Ajay Hasia's case supra, provision of 4 marks in viva voce out of total 25 marks is arbitrary and illegal being contrary to law of Land. He further submitted that even if it is considered to be permissible under law then also, awarding 1 mark only to respondent No. 4 is an illegal act of Selection Committee as prescribed minimum pass marks in all examinations are 33% and 1 mark out of 4 marks comes to be 25% whereas minimum pass marks must be awarded in an interview to a candidate, more particularly for the reason that petitioner who was having lesser merit in 10+2 examination was awarded 3 marks which comes to be 75% of maximum marks of interview. He also ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 13 submitted that Selection Committee awarded 1 mark only to respondent No.4 but 2 marks to one Neelam Kumari who was even not having requisite qualifications and was not .
eligible for the post. As per him all these facts reflect malafide and arbitrariness on the part of Selection Committee.
16. Learned counsel for respondent has submitted that challenge of respondent is also against abuse of power by Selection Committee which has vitiated its power to select and thus selection of petitioner has rightly been set aside by Deputy Commissioner. Reliance has been placed upon case titled as Mehmood Alam Tariq and others Versus State of Rajasthan and others, reported in (1988) 3 SCC 241 in which it has been held as under:-
"24. It is important to keep in mind that in his case the results of the viva-voce examination are not assailed on grounds of mala fides or bias etc. The challenge to the results of the viva-voce is purely as a consequence and incident of the challenge to the vires of the rule. It is also necessary to reiterate that a mere possibility of abuse of a provision, does not, by itself, justify its invalidation. The validity of a provision must be tested with reference to its operation and ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 14 efficacy in the generality of cases and not by the freaks or exceptions that its application might in some rare cases possibly produce. The affairs of Government cannot be conducted on principles of .
distrust. If the selectors had acted mala fide or with oblique motives, there are, administrative law remedies to secure reliefs against such abuse of powers. Abuse vitiates any power".
17. In rebuttal, leaned counsel for petitioner has relied upon pronouncement of the Apex Court in case Lila Dhar Versus State of Rajasthan and others, reported in (1981) 4 SCC 159 in which Hon'ble SCC has held as under:-
"6. Thus, the written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. If both written examination and interview test are to be essential features of proper selection, the question may arise as to the weight to be attached respectively to them. In the case of admission to a college, for instance, where the candidate's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 15 importance to be attached to the interview test must be minimal. That was what was decided by this Court in Periakaruppan v. State of Tamil Nadu, Ajay Hasia etc. v. Khalid Mujib Sehravardi & ors. etc., (supra) .
and other cases. On the other hand, in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way, subject to basic and essential academic and professional requirements being satisfied. To subject such persons to a written examination may yield unfruitful and negative results, apart from its being an act or cruelty to those persons. There are, of course, many services to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise, and the discerning may in an interview test, catch a glimpse of the future personality. In the case of such services, where sound selection must combine academic ability with personality promise, some weight has to be given, though not much too great weight, to the interview test. There cannot be any rule of thumb regarding the precise weight to be given. It must vary from service to service according to the requirements of the service. the minimum qualifications prescribed, the age group from which the selection is to be made, the body to which the task of holding the interview test is proposed to be entrusted and a host of other ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 16 factors. It is a matter for determination by experts. It is a matter for research. It is not for Courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives.
.
The Kothari Committee also suggested that in view of the obvious importance of the subject, it may be examined in detail by the Research Unit of the Union of Public Service Commission.
9. ......Both the cases cited before us Periakaruppan's case and Ajay Hasia's case were cases of admission to colleges. We have already pointed out that the provision for marks for interview test need not and cannot be the same for admission to colleges and entry into public services..............
......Nor do we think that the Court intended any wide construction of their observation. As already observed by us the weight to be given to the interview test should depend on the requirement of the service to which recruitment is made, the source material available for recruitment, the composition of the interview Board and several like factors................".
18. Though, in arguments, learned counsel for respondent No. 4 has argued malafide and arbitrariness against Selection Committee but from perusal of material on record, including impugned order, it does not appear ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 17 that such grounds were ever taken by respondent No. 4 challenging the appointment of petitioner. On confronting with such a situation, learned counsel for respondent No. 4 .
submitted that these grounds were taken in appeal preferred by respondent No. 4 before Deputy Commissioner, however, copy of the said appeal was never placed on record by respondent No. 4 and he has even not chosen to file a separate reply placing its independent stand on the record. There is no material available on record indicating that malafide was ever urged against Selection Committee. Even it is presumed that it was a ground in appeal before Deputy Commissioner, the same is of no consequence for, so evident from memo of parties of impugned order, failure of respondent No.4 in arraying Selection Committee as its members respondents in his appeal.
19. Reasoning of Deputy Commissioner on the basis of broad guidelines is also not sustainable as no such broad guidelines referred in impugned order, were brought in the notice of Court providing that no interview Committee had to award less than 40% or more than 80% marks to a ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 18 candidate in an interview except in exceptional circumstances.
20. Ratio of law laid down in cases for Admission to .
Educational Institutions cannot be made applicable to the cases of employment. Concept of awarding passing marks i.e. 33% marks to a candidate, urged on behalf of respondent No. 4, is also without basis because no such bench mark for qualifying in interview was prescribed in present case. r Also 33% marks are not always passing marks in examination(s). In some cases passing marks are even 50%. There is no practice or law, so as to binding interview committee, to award certain minimum percentage of marks in an interview. Therefore, contention raised by learned counsel for respondent No. 4 that respondent No. 4 was entitled for atleast 1.6 marks in interview is not tenable.
21. So far as grant of 2 marks to the candidate not having requisite academic qualification is concerned, the same cannot be basis to conclude that marks in interview were awarded arbitrarily as marks in interview are awarded on the basis of performance in the interview and ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 19 not on the basis of academic marks/qualifications.
Normally, a person having higher academic marks/qualification may perform better in interview than a .
candidate having lesser academic qualifications but vice versa is also not impossible. There is no law or presumption that performance in an interview will always be proportionate to academic marks or qualification.
Allegations of nepotism and favouritism against Selection Committee in their absence are not permissible under law.
In the present case Rule-7 provides various heads of distribution of marks to the candidates in which Selection Committee is not having any discretion. Out of 25% only 4 marks are in the hands of Selection Committee which cannot be considered as excessive as claimed by respondent No. 4.
22. Learned counsel for respondent No. 4 has also relied upon judgment of Coordinate Bench of this country passed in CWP No. 1796 of 2015 titled as Santosh Versus State of Himachal Pradesh and others wherein appointment of a candidate was set aside on the ground that despite having better academic record lesser marks in interview ::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 20 were awarded to a candidate. What weighed to the court, in this case, is evident from following paras of the judgment:-
.
"10. I observe so because not only is the petitioner well-qualified and may be even more qualified than the members of the Selection Committee itself, but that apart the marks in favour of respondent No.6 have been increased from 7 to 9 in the individual marking conducted by the President, SMC and, on the other hand, as regards the petitioner, her marks have arbitrarily r been reduced from 4 to 2.
11. Similarly, the Headmaster, the head of the Institution-cum-Member Secretary of the SMC had initially awarded 9 marks to respondent No.6 which have thereafter been scored of to make it 9½ and as regards the petitioner, she has been awarded "zero marks" .
12. The S.D.M., on the other hand, has awarded 9.5 marks out of 10 marks to respondent No.6, whereas, the petitioner has only been granted 0.5 marks. Evidently, even after awarding such high marks, the difference of marks between the petitioner and respondent No.6 is only 0.47 marks and the petitioner has been awarded ridiculously low marks 0.83 out of 30 marks in the viva voce".::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 21
23. In my opinion, judgment mentioned supra, is not applicable to the facts and circumstances of the present case. In the said case, there was over writing, cutting in .
record for increasing and decreasing marks already awarded to candidates in order to favour a particular candidate. Even in the said judgment it has been observed as under:-
"9. Normally, this Court would not sit in appeal over the assessment of an individual candidate made by the respondents and would also not adopt a role of supervisory authority and revaluate the performance of a Candidate at the viva voce/interview merely because of a whisper of favouritism has been levelled. But then can the Court ignore a selection which is an a malgam of favouritism and nepotism and uphold the same".
24. Writ Court is not a supervisory authority for reevaluating performance of candidate in viva voce/interview. Mere allegations of favourtism and nepotism in absence of any substantive material on record and also for want of pleadings in this regard, are not sustainable.
::: Downloaded on - 20/04/2017 23:57:52 :::HCHP 2225. Thus, in my considered view, the stand taken by the respondent No. 4 is not tenable in the eyes of law whereas the petitioner has made out a case for interference .
by this Court. In view of above discussion petition is allowed and impugned order dated 26.02.2015 (Annexure P-3) is quashed and set aside. Pending application(s), if any, also stand disposed of. No order as to costs.
April 18, 2016
r to (Vivek Singh Thakur)
Judge
*brb*
::: Downloaded on - 20/04/2017 23:57:52 :::HCHP