Punjab-Haryana High Court
Jagdev Sharma vs State Of Punjab And Ors on 16 December, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.2095 of 2012
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.2095 of 2012
Date of Decision: 16.12.2014
Jagdev Sharma
..... Petitioner
Versus
State of Punjab and others ..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Aman Bansal, Advocate,
and Ms. Anjali Bansal, Advocate,
for the petitioner.
Mr. Rajiv Prashad, Addl. AG, Punjab.
Mr. T.S. Sidhu, Advocate,
for respondent No.3.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
Mr. Rajiv Prashad, Addl. AG, Punjab on instructions from Sada Ram, Superintendent, Grade-I, O/o Chief Engineer, PWD (B&R) Punjab, informs the Court that the 3rd respondent is polio stricken. She was 21 years of age when she was appointed as Junior Draftsman by direct recruitment.
Learned counsel for the petitioner is unable to describe the extent of locomotor disability of the petitioner or how badly it restricts his movements or impairs his professional life and restricts his day to day activities. But I assume that even living with his disability he is still able to work enough to gain exprience, the moot point canvassed, and look after himself while the 3rd respondent must have a tough time coping with her MANJU 2014.12.24 15:19 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2095 of 2012 -2- disability with long years ahead.
The argument of the learned counsel for the petitioner in assailing the appointment of the 3rd respondent is that his client has a rich experience of 21 years to his credit and is better suited and qualified to work as a Junior Draftsman as against the inexperience of the 3rd respondent who is 21 years of age, cuts no ice with this Court when comparing the disability element of both the competitors to the post. Comparative hardship among the differently-abled is a vital factor which can tilt the balance one way or the other in a litigation while the age factor may take a secondary place in the scheme of employment rights guaranteed by the provisions of 'The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995' (1 of 1996). So long as the selection and appointment of the 3rd respondent is not vitiated by illegality, corruption or nepotism or was made contrary to rules then it may not be possible for this Court to go about flawing the appointment and quashing it. It is also not the case that the procedure and criteria for the selection was applied unequally among equals or was misapplied and, therefore, the selection process stands vitiated by error. The 3rd respondent has been working as Junior Draftsman consequent to her selection and offer of appointment vide letter dated November 15, 2011 which she accepted.
Counsel cites the ruling in Dr. Parikshit Bansal and another vs. Union of India and others, 2013 (1) SCT 468 and para.35 within the judgment to contend that when a criteria is determined by the Selection Committee on the date of interview itself then the members of the Selection Committee would be aware in advance of the educational qualifications MANJU 2014.12.24 15:19 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2095 of 2012 -3- earned and experience gained by the short-listed candidates who have prior knowledge of coming events and can therefore be a party to a tailor-made selection by inflating marks for interview with the marks assigned for educational qualifications and experience.
It cannot be held always that in every case where a criterion is adopted on the date of the interview or close at hand, the selection must necessarily be faulted as arbitrary. The validity of selection in cases of persons with disability would depend on several factors which would have to be pleaded and examined on a case to case basis. Much would depend on the nature of the job, the number of applicants chasing advertised posts, the extent and nature of disability in the three accepted categories, the level of impairment in performing everyday activities and the demands of the recruitment rules of the service involved and whether the physical condition is listed fit for employability or not and if the duties attaching to the office can at all be performed.
In the present case the total number of applicants were just six which is not much of competition and rather easier to handle. The criteria adopted which the learned counsel castigates as one formulated a little too late in the day and for this reason suspect, was evolved one day prior to the day fixed for interviewing candidates, with 15 marks allocated for interview, 80 for educational qualifications and 5 marks for higher qualifications. Neither the petitioner nor the 3rd respondent ran the race with experience in mind that it might be a determining factor. It is not shown that the rules required credit for it. Besides, there is always a judicially recognized element of arbitrariness in the viva voce and all that the Court MANJU 2014.12.24 15:19 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2095 of 2012 -4- has to see is that the result is not wide off the mark and the selection has not resulted in substantial injustice to the competitors by its end product and the selection is not tainted and when it passes this litmus test then unfair treatment with respect to issues of work experience and interview cannot be the charge laid to upset the choice of the selectors or acceptance of their recommendations by the State. When the rules of the game are not laid down in the beginning in the interstices then the action must not necessarily succeed if they were filled or altered at the eleventh hour in a case of the present kind so long when all were tested fairly and squarely in equal measure and by the standards of evaluation on merits. Writs are not to be issued on disappointment or for the asking in appointments.
Mr. Prashad and Mr. Sidhu appearing for the State and the private respondent respectively submit that experience was not a part of the criteria advertised though it is true that the criteria was not prescribed in the advertisement nor in the rules of service governing the post of Junior Draftsman. If weightage for experience was not granted as a component unit in the selection procedure adopted then it does not necessarily follow that such a condition had to be laid down mandatorily as a universally accepted principle of public employment law and to be the fairest yardstick applied while searching for the most suitable candidate for the job amongst the contestants and to be seen as such a fatal lacuna in absence of prescription of which criterion the petitioner has been deprived of credit towards his valuable experience gained in working life and on account of which he has been disadvantaged in the selection process vis-a-vis the selected candidate or otherwise he would have won. The minimum qualifications fixed for the MANJU 2014.12.24 15:19 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2095 of 2012 -5- post of Junior Draftsman was ITI Diploma in Draftsman (Civil) from a recognized institution which qualification both the contesting parties indisputably possessed.
The other issue pressed by the learned counsel for the petitioner is that the interview part of the selection process has led to an unfair imbalance even though his client is higher in merit in ITI diploma. The petitioner has got 76% in ITI Diploma in Draftsman (Civil) while the 3rd respondent secured 74% in the examination and it is argued that for this reason the petitioner has a superior claim to the post.
These percentages of marks have to be seen in the context of the years in which they were earned, one 20 years after the other and from different institutions and it is not possible to moderate the two on an equal scale or draw from that facile conclusions of comparative merit from such indeterminate facts and that too in writ jurisdiction dependant of affidavits. Besides, the difference in marks is marginal and nothing turns on it, one way or the other. Neither can say who is better off. Therefore, the choice is best left to those who run the department of Government and are well versed in its administration.
Be that as it may, and without getting into the nitty-gritty of the selection process from a purely legal standpoint which process does not inherently disclose ex facie any taint or blemish, this Court would instead ex debito justatiae exercise its equity jurisdiction to lean in favour of a handicap which is more intense in its severity than the other one, but both tragic accidents, one God given, which has afflicted a cruel malady upon a child whilst the other from an injury suffered in an accident resulting I am MANJU 2014.12.24 15:19 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2095 of 2012 -6- told in the shortening of a leg. The levels of suffering in each of the cases may be vastly dissimilar, one acquired in tender age, the other caused later in life by an accident.
I cannot help saying that in the matter of physical disability care and caution have to be exercised with sensitivity by those bound by office to take decisions and for them to make sufficient room by and large for the one who is suffering the more when both can perform the job. This evaluation cannot be left only to certificates of disability and percentages of physical handicaps determined by medical boards. You have to see a person and feel by the heart and mind to gauge where a person with disability really stands as against another in the queue. Documents and papers can never tell the true picture and to an uncaring mind such decisions should not be left. I am inclined to think the selection committee did not do badly in choosing the younger and more "infinitely suffering thing". It goes without saying that experience she will gain, if she has not already. If the work of the department is being performed well and to the satisfaction of the demands of work by the 3rd respondent for the last three years, then why disturb the stasis by forensic reasoning or a debate on case law and inert legal principles.
The relief provided by article 226 of the Constitution is a discretionary one. A writ may neither issue nor an order made merely because it is lawful to do so. The writ court sits in equity where the rules of prudence preside and occupy the field of vision when known legal principles may not come to the rescue or be of any intrinsic help to cull out the relief or to deny it. Equity in its brightest and the most sublime form is a MANJU 2014.12.24 15:19 I attest to the accuracy and authenticity of this document High Court Chandigarh CWP No.2095 of 2012 -7- jealous mistress which may not want to share its bed and be betrayed by pedestrian rules, shackled by plebeian legal principles which may be found insufficient whilst venturing to do unconventional justice in a case. It is often said that a case to be decided ex aequo et bono, overrides the strict rule of law and requires instead a decision based on what is fair and just, given the circumstances. Life and its vicissitudes are larger than the law.
For the foregoing reasons, I find no good enough ground to interfere or to dither in this matter and would dismiss the petition without costs.
(RAJIV NARAIN RAINA) JUDGE 16.12.2014 manju MANJU 2014.12.24 15:19 I attest to the accuracy and authenticity of this document High Court Chandigarh