Punjab-Haryana High Court
Anu Radha vs State Of Haryana And Others on 1 July, 2009
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel, Jitendra Chauhan
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No.3445 of 2003
Date of decision: 01 .7.2009
Anu Radha
-----Petitioner
Vs.
State of Haryana and others
-----Respondents
CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MR JUSTICE JITENDRA CHAUHAN
Present:- Mr. Puneet Bali, Advocate as amicus for the petitioner.
Mr. Lokesh Sinhal, Addl.A.G.Haryana for the State.
Mr. S.R.Hooda, Advocate for respondent No.2.
Adarsh Kumar Goel,J.
1. This petition seeks a direction to appoint the petitioner to the post of Head Mistress, after quashing the selection made by the Haryana Public Service Commission (HPSC) to the said posts.
2. Case of the petitioner is that vide advertisement dated 14.12.2001, Annexure P.14, the HPSC invited applications for 140 posts of head Masters/Head Mistresses in the pay scale of Rs.7500-12000. The requisite qualification was Graduation, preference being given for Post Graduation CWP No.3445 of 2003 2 with degree or diploma in Education and eight years' experience of teaching in a Government school. The petitioner was eligible and was allowed to appear in the screening test held on 26.5.2002. She qualified and appeared for interview on 22.7.2002 but was not declared successful as per result published on 7.9.2002. The petitioner served legal notice dated 25.9.2002, Annexure P.19 seeking to know criteria adopted in the interview and names of selected candidates but vide reply dated 20.11.2002, Annexure P.20, she was informed that the criteria was confidential and that documents of selected candidates had already been forwarded to the Government. Present petition was filed on 28.2.2003.
3. Contention raised in the petition is that the petitioner had higher merit as compared to respondent No.3 who was one of the selected candidates, as she was more qualified and her percentage of marks was higher. Her experience was also more. There is no transparency in the selection process and the same was arbitrary.
4. In the reply filed on behalf of the State, it is stated that the selected candidates stood appointed in the order of their merit as recommended by the HPSC. The stand of the CWP No.3445 of 2003 3 HPSC is that the selection is purely on merit and higher qualification and more experience did not necessarily mean higher merit of the petitioner.
5. On 3.11.2006, the petition came up before a learned Single Judge who referred the matter to larger bench. The order of reference is as under:-
"In deference to the order dated May 26, 2006, Shri S.R.Hooda, learned counsel representing respondent No.2, has produced the original records containing the "selection criteria" as well as "allocation of marks in interview". The same have been perused.
In view of the judgment rendered by the Hon'ble Supreme Court in Anzar Ahmed v. State of Bihar and others, 1994(1) RSJ 557, though it appears that there could be no restriction to restrict the marks for interview as no written test has been held for the purpose of selection. The restriction on allocation of marks for interview imposed by the Hon'ble Supreme Court in the case of Ashok Kuamr Yadav and others v. State of Haryana and others, 1985(4) SCC 417, thus, can be distinguished.
Similarly the Commission, on the strength of the judgment of the Hon'ble Supreme Court in Dr. Keshav Ram pal v. UP Higher Education CWP No.3445 of 2003 4 service Commission, 1986(1) SLR 681, can take the plea that it was not obligated to sub divide the marks for interview/viva voce under various heads.
There are some subsequent judicial precedents also wherein the selection based upon the interview only, have been approved.
However, whether the Commission, while laying down a selection criteria in which it consciously decides to sub divide the marks in interview/viva, but does not hold a written test for the selection purposes, enjoys unquestionable powers to determine such selection criteria and/or what can be the scope of judicial review to test the same on the touchstone of Articles 14 and 16 of the Constitution also appears to be of paramount public importance.
As the aforesaid question does arise for determination in the present case, I am of the considered view that it would be more appropriate if the same is answered by a larger Bench.
Consequently, let the papers of this case be placed before Hon'ble the Acting chief Justice."
6. The Commission produced the record as directed, which was perused by the Court. On 22.5.2007, following order was passed:-
CWP No.3445 of 2003 5
"Record has been produced before us. The same was opened and after perusal, the same has been sealed and returned.
Petitioner as well as counsel for the respondents pray for time to argue on the question whether the selection criteria adopted by the Commission was in accordance with law or not?"
7. Thus, the question for consideration is as to validity of selection criteria laid down by the Public Service Commission.
8. Since the petitioner was not represented by counsel, we requested Sh. Puneet Bali, Advocate, who was present in Court, to assist the Court as amicus. We have heard learned amicus for the petitioner, learned counsel for the Commission as also the learned counsel for the State.
9. The criteria laid down by the Commission on 19.7.2002 and adopted for selection held on 25.7.2002 is as under:-
"The commission lay down the following criteria for assessing the relative merit of the candidate called for viva-voce examination for the post of Headmasters, in CWP No.3445 of 2003 6 HES, class-II (Gazetted) School Cadre, Education Department, Haryana:-
Total marks of the viva-voce examination: 100 marks I. Personal achievement marks: 25 marks
(a) Higher qualification: 10 marks
(i) For Ph.D: 10 marks
(ii) For M.Phil or M. Ed or both 5 marks
(iii) For Post-Graduation in any Subject: 3 marks (B) Experience: 5 marks One marks for each completed year will be awarded for teaching or administrative experience in addition to the experience that is necessary to make a candidate eligible. The maximum marks for experience will be 5 marks.
(C) Prize/Awards: 5 marks Candidate who has received National teacher award 5 marks Candidate who has received State teacher award 3 marks Note: Candidate who has received both State & National teacher award will be given maximum 5 marks.
(D) Distinction at graduation Level: 5 marks.
Candidate who has stood 1st in the University at graduation level 5 marks.
CWP No.3445 of 2003 7
Candidate who has stood 2nd in the University at graduation level 3 marks.
Candidate who has stood 2nd in the University at graduation level 2 marks.
II. INTERVIEW:
The interview test will be conducted to the test the knowledge of the subject, intelligence, awareness, teaching faculty, articulation, expression, speaking ability and other related qualities. There will be 75 marks assigned for this test. They are distributed as under:-
(i) Knowledge and awareness: 25 marks
(ii) Teaching faculty including articulation, Expression and speaking ability 25 marks,
(iii) Intelligence and other qualities 25 marks.
For the convenience of marking and realistic assessment, a candidate is categorized as under in consultation with the expert advisor:-
Good- 18 - 25 marks
Average- 9 - 17 marks
Poor - 1 - 8 marks.
For qualifying the viva-voce test the candidate must obtain at least 40% marks in Aggregate."
10. Learned amicus for the petitioner submitted that laying down of selection criteria should have been prior to the selection process and the same should have been made public CWP No.3445 of 2003 8 before hand. The selection criteria must be fair and reasonable to check subjectivity and arbitrariness. Written test should be required, apart from service record being examined. If the selection was only on the basis of interview, there should be videography to bring about transparency. The sub division should have nexus to the object of selection moreso, when there is question mark on credibility of appointments to the Commission.
11. Reliance has been placed on following judgments:-
1. R.Chitralekha v. to submit that fair selection State of Mysore requires moral standards of and others, AIR members constituting Selection 1964 SC 1823 Committee and objectivity.
2. Janki Prasad to submit that for the post of Parimoo and Headmaster, efficiency, character, others v. State of teaching experience, ability to Jammu and manage class, percentage of Kashmir, 1973(1) successful candidates produced SCC 420 must be taken into consideration.
Character and service record of candidates must be before the Selection Committee.
3. Kiran Gupta and to submit that percentage of marks others v. State of allocated for interview cannot be UP and others, unreasonably high. Parameters 2000(7) SCC 719 like experience and service record & should be given due weightage Inder Parkash apart from qualification, general Gupta v. State of knowledge, personality and J&K and others, administrative ability and (2004) 6 SCC 786 achievements in extra curricular activities.
CWP No.3445 of 2003 9
4. Praveen Singh v. to submit that Selection State of Punjab Committee cannot act arbitrarily and others, (2000) and interview as basis of selection 8 SCC 633 is always suspect.
5. Maharashtra State to submit that rules of game Road Transport cannot be altered after process of Corporation and selection has commenced. others v. Rajendra Bhimrao Mandve and others, (2001) 10 SCC 51, K.Manjusree v.
State of Andhra
Pradesh and
another, (2008) 3
SCC 512
and
Hemani Malhotra
v. High Court of
Delhi, (2008) 7
SCC 11
6. State of UP and to submit that higher qualification
another v. Om could be given preference only
Prakash and when other things were equal.
others, (2006) 6
SCC 474
7. K.M.Rashmi to submit that even though written
Mishra v. MP test was for shortlisting, the same
Public Service should have been taken into
Commission and account, in addition to interview.
others, 2006(12)
SCC 724
8. Jaskaran Singh to submit that criteria for selection
Brar v. State of will be liable to be set aside if
Punjab and arbitrary and irrational.
others, 2005(1)
RSJ 508 (Pb. &
Hry.)
CWP No.3445 of 2003 10
9. Vinod Kumar v. to submit that change of selection State of Rajasthan criteria after selection process was and others, 2005 illegal.
(2) SLR 243 (Raj.), & Ms.Suman Rana v.
Govt. NCT of Delhi and others, 2005(4) SLR 75 (Delhi)
12. Learned amicus further submitted that the selection criteria in the present case cannot be held to be fair and either the same be quashed or the petitioner may be directed to be appointed against one of the available posts.
13. Learned counsel for the State and the Commission opposed the submission and submitted that the selection criteria cannot be held to be unfair. There is no requirement that the criteria must be published in advance. Selection could be without written test. No case was made out for quashing the selection criteria nor direction for appointment of the petitioner was called for.
14. Questions raised can be formulated as follows:-
i) Whether interview can be sole basis of selection and if so, whether it is necessary to prepare proper record of interview?CWP No.3445 of 2003 11
ii) Whether sub division of marks for interview for different heads is a must?
iii) Whether criteria adopted in the present case is open to challenge and is illegal?
iv) Whether selections are liable to be quashed?
v) Whether the petitioner is entitled to a direction for appointment?
15. Before we proceed to deal with the questions, it will be appropriate to have a general overview of the role of Public Service Commissions and scope of interference with their working.
16. Importance of selections to the Government jobs can hardly be overemphasized. The Government machinery has vital role to play in achieving the constitutional goals. Selection at the entry point must ensure induction of best talent to the government service. Constitution has assigned role to the Public Service Commissions to bring about desired transformation from patronage to open competition as the basis for selection. Not only best methods of assessing efficiency and suitability are required to be employed, the Commissions are expected to establish their credentials of being above any CWP No.3445 of 2003 12 influence. Unfortunately, appointments to the posts of members of the Commission are often subject matter of controversy. Selections made do not inspire confidence on account of apprehension of extraneous influence. Though, the Courts normally exercise restraint in interfering with the selections and particularly with the criteria which may be laid down by an expert body, the Court cannot be oblivious that there has been a steady decline of public standards, public morals and public morale. In such a situation, the Courts cannot and should not remain mute and dumb. (See Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi , (1987) 1 SCC 227, Para 51). We need hardly repeat that selections are required to be made without any extraneous considerations and by using methods which may enable the most meritorious and suitable candidates to be appointed to public posts. No method may be foolproof and in the ultimate analysis it is the sincere effort of the Commission which is crucial. Public posts constitute national wealth and development of the nation is linked to excellence and merit being the basis of selections to public posts.
CWP No.3445 of 2003 13
17. History of evolution of Civil Services in some countries has been disquieting. In France, almost every public office used to be purchasable. The surveys showed that in England, job security brought about inefficiency and lack of devotion. (These developments have been referred to in judgment of the Hon'ble Supreme Court in Mehmood Alam Tariq v. State of Rajasthan, AIR 1988 SC 1451, para 6).
18. In America, the spoils system was in force and appointments were made on political considerations (see observations in State of Bihar v. Upendra Narayan Singh, (2009) 5 SCC 65, Paras 33 to 36). In the said case, unsatisfactory state of affairs of appointments to Public Service Commissions and their functioning has been noticed by Hon'ble Supreme Court thus:
"43. In the beginning, people with the distinction in different fields of administration and social life were appointed as Chairman and members of the Public Service Commissions but with the passage of time appointment to these high offices became personal prerogatives of the political head of the Government and men with questionable background have been appointed to these coveted positions. Such appointees have, instead of making selections for CWP No.3445 of 2003 14 appointment to higher echelons of services on merit, indulged in exhibition of faithfulness to their mentors totally unmindful of their constitutional responsibility. This is one of several reasons why most meritorious in the academics opt for private employment and ventures.
44. The scenario is worst when it comes to appointment to lower strata of the civil services. Those who have been bestowed with the power to make appointment on Class III and Class IV posts have by and large misused and abused the same by violating relevant rules and instructions and have indulged in favouritism and nepotism with impunity resulting in total negation of the equality clause enshrined in Article 16 of the Constitution.
45. Thousands of cases have been filed in the Courts by aggrieved persons with the complaints that appointment to Class III and Class IV posts have been made without issuing any advertisement or sending requisition to the employment exchange as per the requirement of the 1959 Act and those who have links with the party in power or political leaders or who could pull strings in the power corridors get the cake of employment. Cases have also been filed with the complaints that recruitment to the higher strata of civil services made by the Public Service Commissions have been affected by CWP No.3445 of 2003 15 the virus of spoils system in different dimensions and selections have been made for considerations other than merit."
19. An administrative or quasi judicial body such as a Selection Committee has normally to be left to devise its own procedure, subject to the same being fair and reasonable. Selection has to be made by assessment of relative merits. It is not necessary to give any reasons for the assessment. Reference may be made to judgments of the Hon'ble Supreme Court in Union of India v. M.L.Capoor and others, AIR 1974 SC 87, National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman, AIR 1992 SC 1806, para 7 and Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1. Though, the selection authority has to be given free play in joints, the power of awarding marks in interview is coupled with the duty to select the best and cannot be exercised arbitrarily.
20. Judicial review is basic structure of the Constitution. Its depth depends on nature of decision. No decision may be exempt from judicial review except decisions such as employment of troops and entering into international treaties CWP No.3445 of 2003 16 (State of N.C.T. of Delhi v. Sanjeev AIR 2005 SC 2080). Scope of judicial review extends to remedying injustice wherever found. Power exercised by any public authority is for the purpose for which the same is conferred. No authority can function arbitrarily or malafidely. (Dwarka Nath v. I.T.O. Special Circle, D Ward Kanpur and anr.AIR 1966 SC 81, Hochtief Gammon v. State of Orissa & Ors AIR 1975 SC 2226, Comptroller and Auditor-General of India v. K.S. Jagannathan, (1986) 2 SC 679, Para 18-20, Kumari Shrilekha Vidyarthi etc. v. State of U.P. & ors. AIR 1991 SC 537, Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161, Rameshwar Prasad (VI) v. Union of India AIR 2006 SC 980, Express Newspapers Pvt. Ltd. V. UOI, AIR 1986 SC 872 and S. Partap Singh v. State of Punjab AIR 1964 SC 72). With expanding scope of judicial review, there are instances of interference even in cases earlier considered to be purely executive functions. In Center for Public Interest Litigation v. Union of India, AIR 2005 SC 4413, appointment of Chief Secretary was set aside with the observation that on sensitive posts, appointments must be transparent and of persons above any suspicion. In Prakash Singh and others v. Union of India and others, 2006(8) SCC 1, directions in the CWP No.3445 of 2003 17 matter of police reforms were issued. Appointments to Public Service Commissions had to be of persons of integrity. However, in the present case, we are not directly concerned with appointment of members of the Commission but only with the issue of selection being on merits. This is possible only when persons of high integrity are appointed as Chairman or members of Public Service Commission. The observations of the Hon'ble Supreme Court, commenting upon unsatisfactory state of affairs of appointments to the commissions have already been referred to in this regard.
21. In M.V.Thimmaiah and others v. Union Public Service Commission and others, (2008) 2 SCC 119, para 21, principles for judicial review of recommendations of Selection Committee were reviewed and it was observed that scope for interference was limited to situations where selection is actuated by malafides and violation of statutory provisions. After referring to judgments in Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044, P.M. Bayas v. Union of India, (1993) 3 SCC 319, Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417, Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, UPSC v. S. Thiagarajan, (2007) 9 SCC 548,G. Sarana (Dr.) v. University of Lucknow, (1976) 3 SCC CWP No.3445 of 2003 18 585,Kunda S. Kadam v. Dr. K.K. Soman, (1980) 2 SCC 355,Ashok Nagar Welfare Assn. v. R.K. Sharma, (2002) 1 SCC 749, Union of India v. Mohan Lal Capoor, (1973) 2 SCC 836, Lila Dhar v. State of Rajasthan, (1981) 4 SCC 159, R.S. Dass v. Union of India, 1986 Supp SCC 617, State of U.P. v. Rafiquddin, 1987 Supp SCC 401,UPSC v. Hiranyalal Dev, (1988) 2 SCC 242, Mehmood Alam Tariq v. State of Rajasthan (1988) 3 SCC 241,Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, (1990) 1 SCC 305,National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman, 1992 Supp (2) SCC 481,Indian Airlines Corpn. v. Capt. K.C. Shukla, (1993) 1 SCC 17, C.P. Kalra v. Air India, 1994 Supp (1) SCC 454,Anil Katiyar v. Union of India, (1997) 1 SCC 280,All India State Bank Officers' Federation v. Union of India, (1997) 9 SCC 151, Union of India v. N. Chandrasekharan, (1998) 3 SCC 694, Inder Parkash Gupta v. State of J&K, (2004) 6 SCC 786, K.H. Siraj v. High Court of Kerala, (2006) 6 SCC 395, it was concluded:-
"22. Keeping in view the ratio laid down by this Court in several decisions, now we shall examine the argument of learned Senior Counsel for the appellants which had been addressed. But we may at the very outset observe that the Court while considering the CWP No.3445 of 2003 19 proceedings of the Selection Committee does not sit as a court of appeal. Courts have limited scope to interfere, either selection is actuated with mala fide or statutory provisions have not been followed....."
22. From the survey of above case law, it is clear that while Selection Committee can devise its own procedure, the same has to be fair and reasonable having nexus to the object of selecting the best. Criteria adopted by Selection Committee is open to judicial review on well known grounds of illegality, irrationality and impropriety.
23. We now proceed to deal with the questions formulated in para 14.
Re.i):
24. There has been debate on the issue of validity of interview as sole basis for selection. Theoretically, interview can be a valid tool and criticism of the same being adopted as a sole basis has been that the same involves subjectivity and its effectiveness depends upon exercise of discretion which is generally misused. Success of this method, like any other method, depends on moral standards of members constituting the committee. Safeguards are, however, required to be CWP No.3445 of 2003 20 introduced to check arbitrariness and also to ensure transparency. In absence of contemporaneous record being maintained, adoption of test or interview is rendered vulnerable to allegation of nepotism or favourtism and the burden may be on the Commission to satisfy the Court that the selection was fair. If there is contemporaneous record, it may be easier for the Commission to discharge its burden for showing fairness. We may refer to some leading judgments dealing with the validity of interview as a basis for selection and possible safeguards which ought to be adopted.
25. In R.Chitralekha (supra), interview as a basis for selection was tested on the anvil of Article 14 in the light of the contention that the same involved subjectivity, which was open to abuse. Referring to different opinions on the utility of interview as a basis for selection, it was observed that if there is dishonesty in allotting marks to a candidate in interview, there could be a same flaw in awarding marks in written examination. It was observed:
"In the ultimate analysis, whatever method is adopted its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty.CWP No.3445 of 2003 21
This criticism is mere a reflection on the examiners than on the system itself. The scheme of selection, however, perfect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant objective criteria and entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter. In this case the criteria laid down by the Government are certainly relevant in the matter of awarding marks at the interview. Learned counsel contends that the ability of a student on the basis of the said criteria can be better judged by other methods like certificate from the N.C.C. Commander or a medical board or a psychiatrist and should not be left to a body like the selection committee which cannot possibly arrive at the correct conclusion in a short time that would be available to it. The criticism does not affect the validity of the criteria, but only suggests a different method of applying the criteria than that adopted by the Committee. It is not for us to say which method should be adopted: that must be left to the authority concerned. If in any particular case the selection committee abuse its power in violation of Art. 14. of the Constitution, that may be a case for setting aside the result of a particular interview, as the High Court did in this CWP No.3445 of 2003 22 case. We cannot, therefore, hold without better and more scientific material placed before us that selection by interview in addition to the marks obtained in the written examination is itself bad as offending Art. 14 of the Constitution."
26. In Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, it was observed that oral interview was not satisfactory and should not be relied upon as exclusive test but should be only additional or supplementary test for assessing caliber of candidates. It was also observed that to bring about transparency, tape recording of interview may be done so that there is contemporaneous evidence as to questions asked and the answers given to eliminate controversy and to act as a check on possible arbitrariness. However, in Lila Dhar v. State of Rajasthan, AIR 1981 SC 1777, it was observed that the observations in Ajay Hasia (supra) related to admissions and may not apply to selection to judicial service. Awarding of marks under different heads may lead to distorted picture while totality of impression may give more accurate picture. There could be no magic formula in these matters and the Court cannot sit in judgment over methods of marking employed by CWP No.3445 of 2003 23 the interview bodies unless there was oblique motive. Same view was taken in Inder Parkash Gupta v. State of J&K, (2004) 6 SCC 786 and P.Mohanan Pillai v. state of Kerala and others, (2007) 9 SCC 497.
27. In Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454, it was observed that allocation of marks for interview should not be very high but in later judgments including Anzar Ahmad v. State of Bihar, (1994) 1 SCC 150, the rule in Ashok Kumar (supra) was held to be not inflexible one particularly when interview was the only basis of selection.
28. In D.V.Bakshi and others v. Union of India and others, AIR 1993 SC 2374, Para 7, it was observed that element of subjectivity can be checked if proper record is maintained and marks are awarded under separate heads. The relevant observations are:-
"7. If an oral test is, therefore, a 'must' as in this case, a heavy responsibility is cast on the examiners to maintain a proper record of' the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate. Once this care is taken the CWP No.3445 of 2003 24 element of subjectivity will be largely checked and the marks assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate, In the matter of evaluation some degree of honest error must be countenanced. However, if there is any allegation of nepotism or favourtism, the same can be checked with reference to the record so maintained. Since the oral test is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light. But that is not to say that a mere allegation based on the fact that passing of an oral test is a 'must' or that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into the records of the oral test. But if the allegation is supported by some dependable proof, the Court will satisfy itself whether or not the charge is well founded. That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the CWP No.3445 of 2003 25 result of the oral test as a whole or qua a candidate, as the case may be...."
29. In Madan Lal and others v. State of J& K and others, AIR 1995 SC 1088, Para 15, observations with regard to requirement of tape-recording was held to be obiter. It was observed:-
"15....These observations cannot be read to mean that in the absence of tape recording of questions and answers the interview process would fail or the result of the interview would get vitiated..."
30. We, thus, hold that interview as sole basis of selection may not be per se illegal. While absence of video recording or preparing other record may not always render the selection bad, it is desirable that proper record of questions asked and answers given is maintained. In the present case, even though, no such record was maintained. We are not inclined to interfere with the selection having regard to overall fact situation but we consider it appropriate to give directions in the light of observations of the Hon'ble Supreme Court in Ajay Hasia and D.V. Bakshi (Supra), when we deal with question (v). Question (i) is answered accordingly. CWP No.3445 of 2003 26 Re.ii):
31. On question whether separate marks for different qualities should be allotted, reference may first be made to the judgment of the Hon'ble Supreme Court in A.Periakaruppan v. State of Tamil Nadu, AIR 1971 SC 2303. The rule itself in that case required separate marks to be allotted for different qualities specified therein. However, in State of Karnataka and another v. M.Farida and others, AIR 1976 SC 2482, it was observed that whether marks should be separately allotted for different heads, depended on the rules. In absence of rules, it may not be necessary to allocate marks for separate heads. Relevant observations are:-
"6.....It seems to us in the context that the qualities are mentioned only as guide, as indicating the attributes to be kept in view, in assessing the personality of the candidates. It seems hardly possible in the test contemplated to allocate separate marks for each of the various qualities specified, because most of them overlap one another and are so intermixed that they cannot be separated. Also, the test carries a maximum mark of 100; it seems a little absurd to suppose that the seven qualities to be judged at the interview are of equal value, each CWP No.3445 of 2003 27 carrying 14 2/7 marks. This further confirms the view that Part IV of Scheduled II never intended that separate marks should be allotted for the several qualities stated therein. Reading Rule 9 with Part IV of Schedule II, we are of opinion that the interviewing body was required to award a block mark on a total impression of the personality of each candidate after giving due consideration to the seven qualities specified in Part IV...."
32. In Dr. Keshav Ram Pal v. U.P. Higher Education Service Commission, Allahabad, AIR 1986 SC 597, it was observed that interview Board was not under obligation to sub divide marks under various heads.
33. We, thus, hold that sub division of marks is not must unless it is so provided under the rules. However, the sub division must have nexus with the object of selecting the best and the most suitable candidates. In the present case, though sub division leaves much to be desired, having regard to facts and circumstances, we are not inclined to interfere. However, we propose to give direction as mentioned in para 36. Question
(ii) is answered accordingly.
Re. iii):
CWP No.3445 of 2003 28
34. In the present case, interview has been adopted as a sole basis. The marks have been sub divided in the manner set out herein above. While there is every scope for observing that a better method could be evolved, particularly examination of service record, when selection was from in service candidates. It would have also been desirable to have transparency by keeping contemporaneous record of the questions asked and the answers given by way of video recording or otherwise, as recommended in judgments of the Hon'ble Supreme Court, particularly in Ajay Hasia, Lila Dhar and D.V.Bakshi (supra). There is nothing, in the present case, to show that the selection was manipulated or was in violation of any rule so as to call for interference of this Court.
35. Learned Counsel for the Commission informed the Court that even in the qualifying written examination, marks secured by the petitioner were lower to the contesting respondent.
36. We, thus, conclude that even though, there is nothing to show that criteria adopted was not bonafide, it would have been better if service record of each of the candidates was called for and marks allocated for the same. CWP No.3445 of 2003 29 While we do not propose to interfere with the selection, in the facts of present case, we propose to give direction for keeping into account service record of such selections in future in the light of observations of the Hon'ble Supreme Court in Janki Prasad (Supra). Question (iii) is answered accordingly. Re.iv):
37. We also find that the petitioner has failed to implead selected candidates, though, the petitioner made effort to get the particulars. The fact remains that all the selected candidates are not before the Court. The petitioner participated in the selection process. Selected candidates are required to be impleaded as parties before the selection can be set aside as held in Madan Lal (supra) and K.H. Siraj (supra). As already observed, the criteria adopted, though may not be ideal, selection in the present case is not liable to be interfered with. We also find that the petitioner has herself participated in the process of selection which may create an estoppel against her challenge to the selection. The selected candidates have already worked for more than seven years. However, even on merits, we do not find any ground to interfere with the selections.
CWP No.3445 of 2003 30
38. As regards judgments relied upon on behalf of the petitioners, we find that the same are distinguishable. Since the issue has already been analysed at length, individual judgments need not be separately discussed. As already observed, there is no inflexible rule that selection based only on interview would be illegal. Criteria to allocate marks under sub heads though not the ideal one, is not shown to have vitiated the selection. In view of judgments relied upon by the learned counsel on the question of candidates being put to advance notice and there being no change permissible after selection process starts, the criteria adopted should have been notified but absence thereof cannot be held to have vitiated the selection. Question (iv) is answered accordingly.
Re.v):
39. In view of our conclusion on questions (i) to (iv), the petitioner is not entitled to a direction for appointment. Question (v) is answered accordingly.
40. However, even though we have not found any ground to interfere with the selections or for direction of appointment of the petitioner, we consider it necessary to issue CWP No.3445 of 2003 31 certain directions in the light of judgments of the Hon'ble Supreme Court. In Ajay Hasia (supra), it was observed:-
"20..... We think that it would also be desirable if the interview of the candidates is tape-recorded. for in that event there will be contemporaneous evidence to show, what were the questions asked to the candidates by the interviewing committee and, what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee."
In D.V. Bakshi (supra), it was observed:-
"7.....a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the oral test as a whole or qua a candidate, as the case may be...."
In Janki Prasad (supra), it was observed:-
"17.....The efficiency of a teacher and his qualifications to be appointed as Head Master depend upon several considerations. His character, his teaching experience, ability to manage his class, his popularity with the CWP No.3445 of 2003 32 students and the high percentage of successful students he is able to produce are all matters which must be necessarily taken into consideration before a selection is made. For this any Committee which desires to make a selection after interview should insist that the character roll and the service record of the teachers should be before it...."
41. Accordingly, we direct respondent No.2 to :
(i) ensure that proper record of interviews conducted by it i.e. of questions and answers, is maintained in appropriate form, such as video recording or otherwise, as may be decided by it in all future interviews; and
(ii) consider the service record of in service candidates while considering their candidature for the appointment to a post of Headmaster or any other like post in future selections.
42. Subject to the directions, in para 41 above, this petition is dismissed.
(Adarsh Kumar Goel)
Judge
July 01, 2009 (Jitendra Chauhan)
'gs' Judge