Punjab-Haryana High Court
Pratima Sethi vs State Of Haryana on 12 January, 2012
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.19298 of 2010 (O&M)
Date of decision: 12.01.2012
Pratima Sethi ....Petitioner
versus
State of Haryana, through District Education Officer, Ambala, and
others.
....Respondents
II. Civil Writ Petition No.20509 of 2010 (O&M)
Seema Setia ....Petitioner
versus
State of Haryana, through District Education Officer, Ambala, and
others.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Present: Mr. H.S.Dhandi, Advocate, for the petitioner.
Mr.Saurabh Mohunta, DAG, Haryana, for respondent
No.1.
Mr. R.K. Malik, Senior Advocate, with Mr. Rajdeep
Singh Cheema, Advocate, for respondents 2 to 4.
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1. Whether reporters of local papers may be allowed to see the
judgment ? No.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J. (Oral)
1. Both the writ petitions in CWP No.19298 of 2010 and CWP No.20509 of 2010 are connected. The latter is at the instance Civil Writ Petition No.19298 of 2010 (O&M) -2- of the petitioner, who incidentally is the sister of the petitioner in the former writ petition. In CWP No.20509 of 2010, the complaint is that the advertisement makes a reference for recruitment as 'Headmaster' and leaves out the expression 'Headmistress'. Consequently, she was misled into not applying for the post. The respondents would object to the same by saying that even under the General Clauses Act, the gender as 'male' must be taken as including female and it will be false to contend that the advertisement was misleading in any way. Out of 25 applications received, 2 women candidates of the same school had also applied and the petitioner in CWP No.20509 of 2010 has only been set up by the petitioner in CWP No.19298 of 2010 to create an additional and fresh ground to challenge the selection. I do not believe that the reference to the post as vacant for Headmaster could have caused any doubt or mislead any prospective candidate from applying to the post on a belief that it excluded an appointment as a Headmistress. Any interpretation to a public post must always be viewed as gender neutral and unless very strong grounds are made or there is a specific reference excluding women, I cannot take that the advertisement contained any error. I cannot again be oblivious to the fact of intimate relationship between the petitioners in CWP No.19298 of 2010 and CWP No.20509 of 2010 and the collusion is obvious. I reject, therefore, the contention raised by the petitioner in the latter case that the advertisement was misleading in that it did Civil Writ Petition No.19298 of 2010 (O&M) -3- not contain a specific reference to the consideration for appointment of a Headmistress as well.
2. In CWP No.19298 of 2010, the principal ground of challenge is that the selected candidate did not have the necessary qualification for being considered for the post since the candidate had not worked as a Master but was only as Hindi teacher. This objection itself need not hold us for long, for, the question of whether a Language teacher, who is a Sanskrit teacher or a Hindi teacher would be included within the expression of "Master" came to be considered in a case before this Court in State of Haryana and another Versus Rajinder Sharma and another in LPA No.726 of 2009, decided on 09.11.2009, when the State was trying to assail the decision taken by a single Judge of this Court that 8 years experience as a Master could not be stated to include the experience as a Sanskrit teacher/Hindi teacher, who had a qualification as a Language teacher as Shashtri/Parbhakar/Giani. The Division Bench held that 8 years experience as a Master teaching different subjects like, Social Studies, Science, Maths, etc. cannot be treated differently from persons, who taught Hindi, Punjabi and Sanskrit and found that Sanskrit teacher and other teachers were in the same pay scale and had the same qualification. The promotion avenue was also common to the higher post. I reject the argument that a Language teacher cannot be treated as a Master and hold the contention to be wholly untenable. The Division Bench went as far Civil Writ Petition No.19298 of 2010 (O&M) -4- as to impose a cost of Rs.25,000/- against the State that opposed an interpretation that the Master with 8 years experience would include a Language teacher with as many as years of experience. I would not, therefore, find the educational qualification as lacking for the selected candidate.
3. The petitioner has a still further grievance that in the manner of award of marks, the Management through the Selection Committee committed error in assigning higher marks to the 4th respondent while considering the educational qualifications on various heads. The counsel would refer to the fact that in terms of the criteria laid down by the State Government for sanctioned post in Government aided schools in Haryana State, there was no basis for awarding marks for M.Ed. independently of the marks given for M.A., M.Sc. or M.Com. No specific higher marks could be awarded for M.Ed. qualification. The award of higher marks given to the 4th respondent for M.Ed. qualification was, therefore, unjustified. The learned counsel would further argue that the maximum marks that could be assigned for interview was only 20 marks in terms of the Government instructions but the 4th respondent has been awarded 22 marks in the interview, that is, more marks than could be assigned for this purpose. It is further contended that in the norms for selection, the Selection Committee had made a provision for 5 marks for extra curricular activities. She had participated in NCC and additional marks must have been given as provided in the Civil Writ Petition No.19298 of 2010 (O&M) -5- Government instructions while detailing several extra curricular activities that included NCC as well. If additional 2 marks were to have been given to the petitioner that would have made the difference and the petitioner would have secured more marks than the 4th respondent.
4. The learned counsel appearing on behalf of the Management would contend that the entire argument is premised on an assumption that the criteria for selection issued by the State on 18.01.2011 was applicable. The learned counsel would point out that the criteria for selection issued on 18.01.2011 clearly spelt out that it shall be "henceforth the criterion" for selection. Since the selection had been made even in October 2010, the State Government instructions were not applicable. On the other hand, it is contended by the learned senior counsel that the Management had clearly spelt out selection criteria that provided as follows:-
B.A./B.Sc./B.Com. 25% weightage
B.Ed. 25% weightage
Higher qualification 1st Division 5 marks
M.A./M.Sc./M.Com. 1Ind Division 3 marks
IIIrd Division 2 marks
H.Q.M.Ed. Ist Division 5 marks
IInd Division 3 marks
IIIrd Division 2 marks
E.C.A 5 Marks
Experience 1 Mark for more than half
year up to one year.
After the exp. of 8 years
(Maximum 10 Marks)
Interview Maximum 25 marks"
5. I find that unless the norms that the Management has set Civil Writ Petition No.19298 of 2010 (O&M) -6- to itself are shown to be arbitrary or untenable, I cannot find fault with them, for the only reason that the State Government has given instructions at variance with the norms which the Management set to itself prior to the commencement of the State Government instructions, for instance, a provision for higher marks for M.Ed. qualification independently of marks assigned for M.A., M.Sc., M.Com. or a provision for 25 marks for interview could not be seen as arbitrary. In Lila Dhar Versus State of Rajasthan and others- AIR 1981 1777, 25% marks for interview was upheld. There have been decisions of the Hon'ble Supreme Court which have upheld the prescription of marks for interview as high as upto even 60 marks as in All India State Bank Officers' Federation Versus Union of India and others-(1997) 9 SCC 151. Even higher prescription of marks for M.Ed. qualification cannot be said to be arbitrary. Indeed the Court's power to judge the wisdom of the selection body as to how the norms ought to be kept and how the marks have to be assigned under various Heads are very limited. The Court shall only examine whether there is any arbitrariness involved in the norms prescribed for selection. I would hold that no such arbitrariness existed in this case.
6. The learned counsel for the petitioner would state that in the whole scheme, the non-award of marks for extra curricular activities was erroneous. I had called upon the counsel to produce the applications of both the candidates, namely, the petitioner and Civil Writ Petition No.19298 of 2010 (O&M) -7- the 4th respondent. The petitioner has referred to NCC certificate under column No.18 "for any other particulars" and the 4th respondent has also submitted a whole bunch of certificates and giving details of her participation as a group leader in scouts, as an administrative organizer of Arya Samaj Camp and other seminars and enclosed 16 certificates for alleged participation in extra curricular activities. I will not undertake an examination of whether the marks should have been awarded one way or the other for the extra curricular activity. At least, I find that for all the various certificates given by the selected candidate, no marks were awarded for the respondent also. The norms given by the Management do not detail all the various type of activities which they were prepared to take into reckoning for consideration as extra curricular activity. So long as no different yardstick had been applied for the 4th respondent as well, in spite of the certificates adduced by him, I will not find the fact that the petitioner had not been awarded marks for NCC certification could make any difference for the petitioner's cause.
7. The learned counsel for the petitioner points out that there are definite instructions on 16.04.2010 from the Government that appointment of Language teachers as In-charge Headmaster in the school in the event of vacant post of regular Headmaster was being withdrawn. The inference of this instruction, as made out by the learned counsel is that the Government did not recognize the Civil Writ Petition No.19298 of 2010 (O&M) -8- Language teachers as eligible to hold the post. I cannot allow for any instruction to prevail over a judgment of the High Court and more particularly a decision of a Division Bench in LPA No.726 of 2009 already referred above. On the contrary, the Government is bound to discard any instruction that violates or comes in conflict with a decision of this Court or the higher Court.
8. I find that the final order of selection made of the 4th respondent does not suffer from any legal vice for interference before this Court. The challenge to the selection ought to fail and both the writ petitions are dismissed.
(K. KANNAN) JUDGE 12.01.2012 sanjeev