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Friday, 24 January 2014

DECISION ABOUT 2K PTI'S WRIT PETITION DISMISSED BY HIGH COURT

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.17547 of 2000 (O&M)
Date of decision:08.01.2014.
Ram Kumar son of Shri Hakim Singh, resident of Village Khaspur,
PO Amin (KKR), and others.
.... Petitioners
versus
The State of Haryana, through Financial Commissioner and
Secretary to Govt. of Haryana, Education Department, Haryana
Civil Sectt., Chandigarh, and others.
.... Respondents
CORAM: HON’BLE MR. JUSTICE K. KANNAN
----
Present: Mr. D.S. Patwalia, Advocate,
for the petitioners in C.W.P. Nos.16924 of 2000 and
4001 of 2001.
Mr. H.N. Khanduja, Advocate
for the petitioners in C.W.P. Nos.17545, 17547, 17556
of 2000 and 672 of 2003.
Mr.Sanjiv Gupta, Advocate,
for the petitioners in C.W.P. Nos.14025, 17196 of 2001.
Mr. Navneet Singh, Advocate
for the petitioners in C.W.P. Nos.17428 of 2000 and
1236 of 2001.
Mr. Mahavir Sandhu, Advocate
for the petitioners in C.W.P. No.3187 of 2001.
Mr. Shakti Singh, Advocate for
Mr. S.N. Yadav, Advocate
for the petitioners in C.W.P. No.17980 of 2000.
Mr. Surinder Mohan Sharma, Advocate
for the petitioners in C.W.P. No.16675 of 2000.
Civil Writ Petition No.17547 of 2000 (O&M) - 2 -
Mr. N.D. Kalra, Advocate
for the petitioners in C.W.P. No.14863 of 2000.
Mr. I.D. Singla, Advocate,
for the petitioners in C.W.P. Nos.17260, 17263 of 2000;
1145 of 2001.
Mr. K.L. Dhingra, Advocate,
for the petitioners in C.W.P. Nos.14999, 14859, 15560
of 2000; and 3406, 1927 of 2001.
Mr. Tara Chand Dhanwal, Advocate,
for the petitioners in C.W.P. Nos.2673 and 3958 of
2001.
Mr. Shish Pal Laler, Advocate and
Mr. Ravinder Malik Ravi, Advocate
for the petitioners in C.W.P. No.15414 of 2001.
Mr. Madan Pal, Advocate
for respondent No.7 in C.W.P. No.16353 of 2000.
Mr. G.K. Chatrath, Senior Advocate with
Ms. Alka Chatrath, Advocate,
for petitioners in C.W.P. No.16485 of 2000.
Mr. Ravi Verma, Advocate,
for the petitioners in C.W.P. Nos.16353, 17815, 17958
of 2000 and 10615 of 2001.
Mr. Jai Vir Yadav, Advocate,
for the petitioners in C.W.P. No.16519 of 2000.
Mr. Rakesh Sobti, Advocate,
and Ms. Harmanpreet Kaur, Advocate,
for the petitioners in C.W.P. Nos.16290, 16542, 16645
and 16918 of 2000.
Mr. D.D. Gupta, Additional Advocate General, Haryana.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ?Yes.
3. Whether the judgment should be reported in the digest ?Yes.
----
Civil Writ Petition No.17547 of 2000 (O&M) - 3 -
K.Kannan, J.
1. This batch of writ petitions concern the advertisement in
selection of teachers in the following categories:
Hindi, Punjabi and Sanskrit as subjects and PTI and Art
& Craft teachers.
2. The batch of writ petitions contained a challenge to the
selection to the posts on the ground that the selection was made from
a State merit list pooling all the candidates interviewed in various
districts en bloc discarding district-wise merit list for the respective
vacancies in each district. This, according to the petitioners,
constitute an infraction of the relevant rules that stipulate the posts
as belonging to the district cadre and the appointing authority as
DEO. The State of Haryana has framed rules called, the Haryana
State Education School School Cadre (Group C) Service Rules,
1998 (for short, the 1998 Rules) that has come into force after the
publication of official gazette on 29.01.1998. Prior to the issuance
of these rules, the selection had been governed by the Punjab
Education Service Class III (School Cadre) Rules, 1955. Rule 6 of
the 1998 Rules provided for appointment to the posts were to be
made by the respective District Education Officer of the concerned
district. The advertisement issued, contained a condition at serial
No.12 that candidates submitting more than one application at one
or more places will be declared disqualified. As far as PTI teachers,
Civil Writ Petition No.17547 of 2000 (O&M) - 4 -
they would, therefore, contend that the State had committed an error
in advertising 622 posts with the State as a whole. A similar
challenge is mounted for the other categories also. According to
them, since the number of posts in each district ought to have been
given in the advertisement which was not given, the number of posts
existing on the last date fixed for the receipt of applications ought to
be taken as the number of posts for which the selection was required
to be made.
3. The advertisement specified the category of posts
mentioned in the advertisement for various classes of persons like
general, SC, BC, ESM and PH. It is not necessary for us to go into
the details but this is merely to set forth for the consideration to the
fact that there had been appropriate posts reserved for the scheduled
castes and backward candidates. To paraphrase all the objections
coming through various writ petitions:-
i) Since the cadre was district-wise, the selection
must have been also at the district level and a State-wise
selection list prepared was erroneous;
ii) The Selection Committee was comprised of 5
members, namely, of the District Education Officer,
Deputy District Education Officer, Principal, Lecturer
and Subject expert for each district. The Chairman of
the State level Interview Committee had died before the
Civil Writ Petition No.17547 of 2000 (O&M) - 5 -
declaration of results. There was no new composition of
the Committee and the list released was, therefore,
vitiated as the person competent to authorize the
approved list was not alive on the date when the results
were announced;
iii) There were 11 persons with the same roll numbers,
who had been appointed;
iv) Timing granted for the candidates was less than a
minute and it is anybody's guess as to how any objective
assessment of talent of the persons could have been
made;
v) The selection was also affected by bias inasmuch
as the Selection Committee of Hisar District was headed
by the District Education Officer S.P. Chaudhary and his
son Pawan Kumar having Roll No.10977 had applied in
BC-B category, while his daughter Sunita having Roll
No.11400 had applied in general category.
4. The respondents have filed written statement through the
District Education Officer Shri S.P. Chaudhary. The respondents
would explain that the selection criteria had been so framed as
giving the maximum emphasis on academic merit. 70% marks had
been allotted for academic qualification with weightage of 5% for
still higher qualification. 5% weightage for experience and only 20
Civil Writ Petition No.17547 of 2000 (O&M) - 6 -
marks had been kept for the interview. The contention was,
therefore, the element of subjectivity at the interview was kept to the
minimum. Explaining that the State level merit list was most
appropriate to avoid discrimination with meritorious candidates in
one district, the justification was that it was strictly in accordance
with Articles 14 and 16 of the Constitution. Referring to the
contention of personal bias and the allegations that the son and
daughter of the Chairman had applied in various categories, the
respondents would state that the son Pawan Kumar had applied only
in general category under Roll No.10977 and the daughter Sunita
had also applied as a general category candidate. Their selection
itself was considered on the basis of the decision of the High Court
in CWP No.18201 of 1999. He would also claim that he had not
been sitting in the process of selection/interview when his son and
daughter had appeared and in his absence one Shri Rajinder Singh,
senior member of the Committee was the Head of the Interview
Committee. Joining issues on the mistakes in roll numbers given to
the candidates and the repetition of the same numbers to several
candidates, the answer is that the mistake was rectified and separate
roll numbers had been later assigned.
5. The counsel for the petitioners at the time of arguments
also mentioned that the entire selection of PTI teachers was made
about the same time when the selection process for JBT teachers was
Civil Writ Petition No.17547 of 2000 (O&M) - 7 -
made. The Supreme Court had appointed CBI for investigation and
they had reported that the selection process was vitiated and a
criminal court verdict convicting the former Chief Minister and his
son vindicated the claim of political interference in the selection.
The present selection was similarly vitiated although not vouched by
similar investigations.
6. To take the last point stated above for immediate
consideration, I must observe that all the writ petitions were filed
immediately after the selection had been announced in the year
2000. Apart from the specific objections which I have referred to
above, the general arguments of the political interference and
nepotism do not find place in the writ petitions. If there was even the
slightest hint about it, the petitioners themselves ought to have
moved the court for appropriate direction and secured details of any
level of interference that had vitiated the selection process. The
result that has obtained through CBI enquiry for JBT teachers
cannot simply be assumed as having visited the selection process for
PTI teachers as well. I would, therefore, reject the plea that the
entire selection process was vitiated by political interference.
7. The discrepancy in the roll numbers as several
candidates being assigned the same roll numbers cannot also be a
matter for complaint at the instance of the petitioners. There is no
one among the petitioners who would claim that he had also been
Civil Writ Petition No.17547 of 2000 (O&M) - 8 -
assigned the same roll number as a selected candidate and, therefore,
there was some confusion. The respondents have admitted to
discrepancy at some level when the same roll numbers had been
assigned to more than one candidate but it is only stated by them
that the mistake was sorted out and the ultimate selection was made
identifying the particular candidates who had been selected. If
amongst the selected candidates, there is no confusion and the
petitioners cannot elicit any particular detail of anyone selected
candidate, who was not qualified or who had not obtained the
minimum benchmark for selection, I cannot take the discrepancy in
the roll numbers as giving any specific reasons for the petitioners to
challenge the selection. I would, therefore, reject this contention as
well. The contention by the petitioners that the interview was an
eyewash and more than 300 candidates were interviewed in less than
1 ½ hours was an argument that was placed in court with no
particular details in the writ petitions. The marks assigned in the
interview had been limited only to 20% and, therefore, I cannot see
this as making possible a big dent in the ultimate result. In
situations where prodigious unemployment status exists with large
number of candidates vying in stiff competition for limited number
of posts, it is inevitable that the time slot for each candidate is
limited. It is only for this reason that it is seen desirable that the
element of subjectivity is minimized if not fully eliminated, by
Civil Writ Petition No.17547 of 2000 (O&M) - 9 -
limiting the marks reserved for interview. Indeed the extent of
interference by courts for assessment made at the interview itself is
exceedingly limited and unless there is something very serious
brought out at the interview, there is no scope for making any
intervention. The element of bias in favour of some candidates of
the Chairman of the Selection Committee has also been explained by
the reply stating that he had recused himself at the relevant time. It
may not seem like sufficient consolation for the non-selected
candidates, but to the benefit of the selected candidates, it must be
stated that it is not folly of the candidates that their own parent was
the Chairman of the Selection Committee. Such like instances are
bound to happen and the candidates have to cope with certain
uneven field now and then.
8. In Sadananda Halo and others Versus Momtaz Ali
Sheikh and others-2008(3) SCC 619, the Supreme Court was
considering the challenge to public appointment where thousands of
candidates were involved in the selection process. Interfering with
an observation of the High Court that on any one day not more than
225 candidates shall not be interviewed, the Supreme Court held that
such benchmark could not be fixed generally and a roving enquiry
on factual aspects where thousand of candidates were involved
cannot be made. The Supreme Court was interfering with the
sample survey made by the High Court on some unqualified
Civil Writ Petition No.17547 of 2000 (O&M) - 10 -
participation of the selected candidates in the proceedings and held
that microscopic investigation was not permissible. The court's
reliance on its own investigative process was disapproved by the
Supreme Court. Even a plea that the selection of candidates was not
done objectively and they were not tested appropriately, the
Supreme Court held, it shall not be brought as objections through
writ petitions.
9. There was also no objection made that the Chairman of
the Selection Committee had died before the selection results were
announced. I do not find any specific contention raised in the
petitions though the point was argued before me. I assume that it
cannot vitiate the selection process itself and if at all, it could have
been only an issue of some irregularity that will not go to the core of
the validity of the selection process itself.
10. The most potent objection, however, ought to be that the
posts were of the district cadre and the selection must have been
restricted for each district to correspond to the number of vacancies.
The issue of whether the selection to each district could be made
making the domicile in the particular district as a relevant criterion,
the Full Bench of this Court considered the same in the context of
Punjab Panchayati Raj Primary Teachers Recruitment of Conditions
of Service Rules of 2006 in Abhishek Rishi Versus State of Punjab
and others-2013(3) SCT 1. The Full Bench was considering
Civil Writ Petition No.17547 of 2000 (O&M) - 11 -
whether the condition in the rules or in advertisement that the
applicants should be domiciled of State of Punjab or Union Territory
of Chandigarh was legal and valid and whether reservation to the
extent of 70% of the posts amongst those candidates who have
passed from JBT teachers training course or elementary teachers
training course from Punjab was sustainable. The Full Bench ruled
that the qualification laid down in the notifications restricting the
eligibility on the basis of domicile and residence was
unconstitutional and fell foul of Articles 16(3). The Bench cautioned
that it was the State which was constitutionally and statutorily bound
to provide education cannot make public appointment de hors the
constitutional mandates of Articles 14 and 16. Taking up the issue
of whether appointment to the post of ETT teachers through district-
wise recruitment was justified, the court held that the district-wise
recruitment would be legally bad and not supported by the rules.
Even an advertisement calling applications district-wise was
constitutionally impermissible and there was no place for inter-
district discrimination. This judgment has considered all the
decisions of the Supreme Court commencing from A.
Periakaruppan Versus State of Tamil Nadu and others-1971(1)
SCC 38 and I do not feel constrained to reproduce all of them in
view of the emphatic pronouncement of this court that application
for a district cadre appointment, the selection cannot be on district-
Civil Writ Petition No.17547 of 2000 (O&M) - 12 -
wise merit. The constitution of district-wise Selection Committee or
receipt of district-wise application forms may be permissible but a
restriction of applications only for candidates belonging to that
particular district will bring in a preference on the basis of residence
and allow for a lopsided selection of varying merit criterion for each
district which will be arbitrary. The merit list has to be at the State
level and at best, the allocation of seats to various districts for filling
up the district cadre posts, the selection authority may take
preferences of candidates belonging to the particular district or
nearby places as relevant for their postings. Beyond this level, there
can be no constitutionally permissible district preference in the
manner of selection.
11. Under the circumstances, I will not find any reason to
uphold the contention of the petitioners on any of the grounds urged
in the writ petitions. All the writ petitions would, therefore, require
to be dismissed and, accordingly, dismissed.
(K.KANNAN)
JUDGE
08.01.2014
sanjeev

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