Punjab-Haryana High Court
Ashish Kumar Gupta & Another vs Punjabi University on 3 June, 2011
Author: Augustine George Masih
Bench: Augustine George Masih
Civil Writ Petition No. 1175 of 2010 -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
Civil Writ Petition No. 1175 of 2010
Date of Decision : 3.6.2011
Ashish Kumar Gupta & another
....... Petitioners
Versus
Punjabi University, Patiala & others
....... Respondents
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CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present : Mr. D.S. Patwalia, Advocate
for the petitioners.
Mr. Kanwaljit Singh, Sr. Advocate with
Mr. Puneet Bansal, Advocate
for respondents No. 1 to 3.
Mr. Deepak Sibal, Advocate
for respondents No. 4,6,7 & 9.
Mr. Vikrant Sharma, Advocate
for respondent No.5.
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AUGUSTINE GEORGE MASIH,J.
Punjabi University, Patiala-respondent No.1 issued an advertisement dated 23.9.2009 published in the Tribune inviting applications from the eligible candidates for Walk-in-Interview to be held on 29.9.2009 at 12.30 P.M. for filling up three posts of Workshop Instructor in the grade of Rs. 10300-34800 + Rs. 4800 Grade Pay. Out of these three posts one was reserved for the Scheduled Caste candidate for University College of Engineering, Punjabi University, Patiala. Qualifications prescribed for the post was B-Tech (Mech. Engg.) OR Civil Writ Petition No. 1175 of 2010 -2- Diploma (Mech. Engg.) with 7 years experience in reputed organisation(s). Candidates were required to bring all testimonials in original with attested copies along with four copies of Bio-data and a recent passport size photograph. The advertisement is Annexure P-5. 150 candidates came present on the date of interview i.e. 29.9.2009 and their attendance was marked. However only 112 candidates participated in the interview. Interviews were held on 29.9.2009 and 30.9.2009. The petitioners, who were fully eligible for appointment to the post finding that they had not been selected, have challenged the appointment of respondents No. 4 to 9 through the present writ petition.
It is the contention of the petitioners that the selection process was merely a farce. No criteria has been laid down by the Selection Committee. No records of selection has been maintained. Neither any marks were awarded for the interview and for the academic merit, nor the candidates were graded in any manner. Ineligible persons have been appointed and mala fide have been alleged against the Selection Committee, on the ground that respondent No.6 is ward of a University employee, who is working under the Chairman of the Selection Committee i.e. the Dean Academic Affairs in the department, who is also head of the Department of Zoology. The selection has been made on pick and choose basis. It has further been pleaded that only three posts were advertised whereas six candidates have been appointed i.e. respondents No. 4 to 9, which is depriving the candidates of their right to contest for selection to the posts. On this basis, it has been prayed that the selection of the respondents No. 4 to 9 be quashed.
Respondent-University has filed a written statement, wherein it Civil Writ Petition No. 1175 of 2010 -3- has made an effort to support the selection. It has been contended that post of Workshop Instructor is a "B" category post. The Vice Chancellor, which is the competent authority constituted the Selection Committee, which on the basis of the interview recommended five candidates including one candidate from the waiting list from the general category and two candidates including one candidate from the Scheduled Caste category in the order of merit. It was also recommended by the Selection Committee that the total posts advertised in the general category were two but due to increased requirement candidates selected in the general category were now recommended as four. The recommendations of the Selection Committee were approved by the competent authority i.e. the Vice Chancellor and the appointments were issued to the selected candidates in the order of merit. It has been denied that no merit list was prepared. The selection, according to the respondent-University, was based on the performance of the candidates in the interview held by the Selection Committee. The candidature of respondents No.4 to 9, as far as their eligibility is concerned, is sought to be justified.
Private respondents No. 4, 6, 7 & 9 have filed a joint written statement and a short reply has been filed by respondent No.5. The stand taken by these respondents is similar to that the University except that it has been pleaded that the petitioners having fully participated in the selection process and not being selected are estopped from challenging the same at this stage. The respondents have, thus, pleaded for dismissal of the writ petition as the same is without any merit.
No merit list was prepared by the Selection Committee of all the candidates, who participated in the Walk-in-Interview held on 29/30-9- Civil Writ Petition No. 1175 of 2010 -4- 2009 for the post of Workshop Instructor. He on this basis contended that in the absence of the criteria or even the merit list, the selection was merely an eye wash with an intention to help the private respondents in obtaining public appointments. Pick and choose method has been adopted and merely the names of the favourite candidates have been recommended by the Selection Committee. He contends that the appointment to the post, which is a public post, has to be transparent and each candidate who appeared before the Selection Committee is entitled to at least know the assessment made by the Selection Committee qua the performance of the candidate. In the absence of any criteria or the merit list the same is impossible and the selection, thus, cannot be sustained. He has further pressed before this Court that the selection made cannot be sustained as the Selection Committee has recommended the candidates beyond the advertised posts. The only justification which has been put forth by the University for appointing six candidates instead of the advertised three posts is that there was an increased requirement of the Workshop Instructors, which cannot be justified as the advertisement is dated 23.9.2009 whereas the interviews were held on 29.9.2009 and there is hardly a week's time in between.
Counsel for the respondent-University could not dispute the fact that no criteria has been laid down for selection to the post on Workshop Instructor. He also could not dispute that no merit was prepared of the candidates, who appeared in the walk-in-interview held on 29.9.2009 and 30.9.2009. However, he had sought to justify the selection on the ground that the criteria for selection was the suitability of the candidates on the basis of their performance in the interview held by the Selection Committee. His further contention is that the selection has been conducted Civil Writ Petition No. 1175 of 2010 -5- by the academicians, who were not well conversed with the administrative requirements and, therefore, have proceeded to make the selection on the basis of the interview held by the Selection Committee.
Counsel for the private respondents have pressed into service the judgment of the Hon'ble Supreme Court in the case of Dhananjay Malik & Ors. vs. State of Uttaranchal & Ors. 2008(3) RSJ 223 to contend that the petitioners having participated in the selection process without any objection being raised are estopped from complaining that the selection process was not based on any justifiable criteria. The eligibility of the private respondents have been sought to be justified.
I have heard counsel for the parties and have gone through the records of the case and as also the original records of the selection which was summoned by this Court and has been produced by the learned senior counsel appearing for respondents No. 1 to 3.
In the light of the order proposed to be passed by me adjudication on the eligibility of the respondents No. 4 to 9 for appointment to the post of Workshop Instructor is not being undertaken.
It is not in dispute that the post of Workshop Instructor is a 'B' category post and is a public post, which needs to be duly advertised so that equal opportunity is made available to the eligible candidates, whoever, choose to compete for appointment to the said post. Respondent-University is a creation of the statute and, therefore, cannot act at the whims and fancies of the authorities who hold power, and are bound by the law of the land. If that be so, for filling up of 'B' category post and that too on permanent basis an advertisement is dated 23.9.2009 for conducting a walk-in-interview on 29.9.2009. Although, it may appear to be discretion of Civil Writ Petition No. 1175 of 2010 -6- the appointing authority to choose its mode of procuring the best talent available but nevertheless walk-in-interview is resorted to generally where immediate need for filling up of the post is felt which cannot brook any delay or in the cases where a stopgap arrangement has to be made during the period when the regular selection is being held. It is also resorted in some cases when short term appointments are made but not where the appointment to a public post has to be done on a permanent basis and that too for the type of posts in question in this case. This short cut method which has been adopted by the University, especially when no urgency for filling up the posts has been reflected in the reply, is unjustified. An effort should be made by the authorities to give vast circulation to the post to be filled up which fall within the category of public post, so that all eligible candidates can get a chance to take part in the selection and the best and the most suitable candidate can be appointed.
Interview of 112 candidates have been held in the post-lunch session on 29.9.2009 and on 30.9.2009, although, 150 candidates had come present. If 112 candidates are interviewed and that too on two days it needs hardly any reasoning to come to a conclusion that without preparing a merit list of all the candidates who appeared in the walk-in-interview how the chosen six were short listed. It is an admitted case that no merit list of all the candidates who appeared in the walk-in-interview held on 29.9.2009 and 30.9.2009 for the post of Workshop Instructor had been prepared by the Selection Committee and the selection was based on the performance of the candidates in the interview only ( reference Annexure P-5). The proceeding of the Selection Committee, as per the original record, which has been produced in the Court, is merely a single sheet, photo copy of which has Civil Writ Petition No. 1175 of 2010 -7- been placed on record by the petitioners as Annexure P-11. Perusal of the same would indicate that merely the names of the candidates have been mentioned therein serial-wise which, according to the respondents, is the merit list prepared by the Selection Committee. I am afraid the same cannot pass the test of judicial scrutiny for appointment to a public post.
It has been admitted by the respondents that there was no selection criteria laid down by the Selection Committee. This again is a flaw which cannot be cured to a selection which is on the post of a Workshop Instructor. It is true that where the Rules / instructions do not lay down any criteria the Selection Committee is entitled to formulate its own criteria for making selection but then it has to maintain record of the performance of the candidates in the interview and cannot resort to a process of pick and choose method, as in the present case. The selection has to be transparent for everyone to see, not only the unselected candidates have a right to know the assessment of their performance but the comparative merit would be essential wherever the selection is put to judicial scrutiny. Public posts are to be filled up on a justifiable criteria which has rationally to the object sought to be achieved. Public appointments cannot be treated as private appointments at the whims and fancies of the authorities or individuates. The justification sought to be given by the respondent-University in not preparing the merit list of all the candidates who had appeared before the Interview Committee is that the selection was done by a Committee which consisted of two academicians, who were not well conversant with the administrative procedures and the law. I am afraid, such a reasoning if accepted would encourage arbitrariness, giving the authorities leverage to make selection on their whims and fancies thereby giving total go bye to the Civil Writ Petition No. 1175 of 2010 -8- merit, which is the hallmark of the process of the selection on a public post. No further comments are made by the Court on the conduct of the Selection Committee as the Members of the Selection Committee are not impleaded as respondents in person in the present case. Suffice it to say that the Selection Committee has totally failed in performance of its duties which is mandate under the law as also the competent authority while granting approval to the said selection.
That apart, the justification for making selection and appointment to six posts while advertised three posts on the ground of increase in requirement also smells of arbitrariness and highhandedness with a mala fide intention to help some of the candidates, as the advertisement is dated 23.9.2009 and the walk-in-interview as per the advertisement was to be held on 29.9.2009. How within a span of one week the requirement increased to double the posts, which were advertised is anyone to guess? Merely by inserting a line in the advertisement that the number of posts can be varied, does not give a licence to the appointing authority to increase or decrease the posts at its whims and fancies. No reasoning or justification has been given by the respondent-University justifying the increase in requirement within a short span of one week nor has there been any urgency projected justifying such selection of candidates over and above the advertised posts. This again is something which crystlised the farce of the selection process, which appears to have been resorted to for merely completing the formality for appointing a favourite few that too on a public post. The largeses have been handed over in a platter sacrificing the merit at the alter of arbitrariness in a most whimsical and unjust manner. The selection, thus, cannot be sustained. Civil Writ Petition No. 1175 of 2010 -9-
It would not be fair if the arguments raised by the counsel for the private respondents that the petitioners having participated in the selection process cannot now turn around and challenge the same on the ground of there being no criteria for selection is not dealt with. The judgment relied upon by the counsel in Dhananjay Malik & Ors. vs. State of Uttaranchal & Ors. (supra) was a case where the advertisement itself was under challenge on the ground that the same was not in accordance with the Rules governing the service. In the present case, what has been challenged is the selection not on the ground of violation of the statutory rules but on the ground that the selection is totally arbitrary without any basis, whimsical, illegal and unjustified. Any selection to a public post, which is challenged in a Court of law, is required to pass the test of judicial scrutiny and merely because a person had participated in a selection and failed therein would not be a ground for estopping him to challenge such a selection. If a candidate participates in a selection with open eyes, on the basis of an advertisement, he cannot turn around and challenge such an advertisement as being violative of the statutory Rules as he had accepted the same and participated in the selection process. Mere participation in the selection cannot be termed as enough for depriving or estopping a person from challenging the selection, if the selection is based on no criteria, or in violation of the selection criteria and against the law of the land or if ineligible persons have been selected / appointed etc. In the case in hand, the selection is merely an eye wash and in total violation of the principles of service jurisprudence, according to which inter se merit of the candidates, who had participated in the selection has not been prepared and without comparing the inter se merit of the Civil Writ Petition No. 1175 of 2010 -10- candidates it is difficult to fathom as to how the Selection Committee recommended the names of the six candidates, who are respondents No. 4 to
9. This clearly establishes that the selection has been made without any fair, valid and rational basis what to say of any criteria adopted by the Selection Committee. What else can be termed as arbitrary, irrational, unjustified and without any basis. Will the Courts in such situations close its eyes and refuse to discharge its responsibility of holding such a selection a farce? Courts are seats of justice where it cannot shirk its responsibilities on mere technicalities. When the situation demands action is to be taken by the Court by striking down the illegal act of the authority. If the faith of the common man, the suppressed and the wronged, is to be maintained in the Constitution, the rules and principles of law, justice is to be done by the Court which need to act as a rescuer of the aggrieved and victim of the illegal acts of the authorities. Accordingly, selection of respondents No. 4 to 9 to the post of Workshop Instructor is hereby quashed.
The petition is accordingly allowed with a direction to the respondent-University to formulate a rational, fair, equitable criteria for the purpose of making selection to the post in question by notifying the same. Fresh advertisement be issued for holding selection to the post of Workshop Instructor and selection made in accordance with the notified criteria within a period of three months from the date of receipt of certified copy of this order.
3.6.2011 (AUGUSTINE GEORGE MASIH) 'SP' JUDGE