Anil Arya vs The State of Haryana and others

The petitioner seeks a writ in the nature of certiorari under Articles 226 and 227 of the Constitution of India quashing the selection made to the

post of Sanskrit Teachers under Advertisement No. 6 of 2006 dated 20.07.2006. Resultantly, the appointment of private respondents no. 5 to

119 is challenged having been made on extraneous considerations and direction is sought for appointment of the petitioner to the above said post.

The stand taken by the petitioner is that M.A. in Sanskrit with B.Ed. in Sanskrit being higher qualification, therefore, he has right over and above

the persons selected if the selection is made on the basis of qualification and interview. The selection has also been challenged on the ground that it

was on the basis of nepotism, favouritism and regionalism on command of the political boss, the then Chief Minister since respondent no. 4 was the

brother-in-law of the said Chief Minister and had been given extension in service thrice despite being over age.

The pleaded case of the petitioner is that 498 posts were advertised vide advertisement dated 20.07.2006 (Annexure P-1) wherein, the break

up of the posts of various categories was as under:-

(General-237, SC-A 49, SC-B 49, BC-A 79, BCB 53, ESM (Gen)= 18, ESM (SC-A)= 1, ESM (SC-B)= 1, ESM (BC-A) = 2, ESM (BC-

B)= 3, Outstanding Sportsperson (Gen)=2, Outstanding Sportsperson (SCA)= 1, Outstanding Sportsperson (SC-B)=1, Outstanding

Sportsperson (BC-A)=1, Outstanding Sportsperson (BC-B)=1

The essential qualifications prescribed under the advertisement read as under:-

E.Q. i) Shastri/B.A. (Honours in Sanskrit) from a recognized University.

ii) L.T.C. /O.T. in Sanskrit conducted by the Haryana Education Department or an equivalent recognized by the Haryana Education Department.

OR

B.T. /B.Ed. With Sanskrit as teaching subject from a recognized University.

iii) Hindi up to Matric standard.

Note: In case the candidates of above mentioned qualifications are not available then B.A. with Sanskrit as an elective subject with B.T./B.Ed.

from a recognized University with Sanskrit as one of the teaching subject shall be considered.

The petitioner applied for the said post being duly qualified on the ground that he had passed the matriculation examination with Hindi, B.A. with

Sanskrit as an elective subject, B.Ed. with Sanskrit as one of the teaching subjects, M.A. in Sanskrit and also Doctorate in Philosophy (Annexure

P-2 colly). It is, this, his grouse that he was not called for interview whereas he had M.A. in Sanskrit and was fully eligible.

He had filed CWP No. 11671 of 2007 titled, Dr. Anil Arya vs. State of Haryana, which was decided alongwith a bunch of cases and the lead

case was CWP No. 10926 of 2007, Ashok Kumar and others vs. State of Haryana, decided on 21.12.2007 (Annexure P-12). Resultantly, the

Division Bench had treated the petitioner and other similarly situated candidates eligible for the post of Sanskrit Teacher and directed that he be

called for interview and in case already interviewed alongwith other candidates, result be declared as per their merit. It is the case of the petitioner

that he was called for interview on 31.08.2007 before the Selection Committee and was fully confident of his selection and had answered all

questions. The result had been declared and the petitioner did not make it in the selection list though he had possessed higher qualifications. It is,

thus, his grouse accordingly that though he has M.A. in Sanskrit and being Doctor of Philosophy in the faculty of Sanskrit and Masters in

Education but he was not put in the list of selected candidates on account of the conduct of respondent no. 4 and that higher marks had been given

in interview to candidates of their choice.

Candidates who had got higher marks in academic and professional qualifications were given lower marks in interview and they were not put in

the selection zone as per the directions of the then Chief Minister. Resultantly, the petitioner had asked the Secretary of the Staff Selection

Commission to supply him various material and details and sought information regarding the private respondents and the selection was, thus,

challenged that 50% of the posts which have been selected fall from Rohtak and Jhajjar i.e. The Parliamentary Constituency and Vidhan Sabha

Constituency of the Chief Minister and his son. Candidates from some of the districts did not have any representation and, therefore, challenge was

made on the basis of nepotism and regionalism and extraneous considerations.

In the reply filed on behalf of Secretary, Haryana Staff Selection Commission for respondents no. 3 and 4, the plea taken was that selection

criteria had been evolved on 21.08.2006 (Annexure R-3/1). The petitioner had obtained 43.99 marks as against 54.20 marks in general category

and due to lesser marks, he could not find place in the selection list. Having once appeared in the interview, he could not challenge the result of the

interview if it was not palatable to him. Reliance was placed upon judgment of the Apex Court in Chander Parkash Tiwari vs. Shakuntla Shukla,

2002 (3) RSJ 507. It was accordingly pleaded that the interviewer had awarded marks to the petitioner as per the performance adjudged at the

time of interview and on account of getting lesser marks, he had not found a place in the selection list. It was submitted that vide notification dated

28.01.1970 issued under Article 309 of the Constitution of India, the qualification and mode of appointment of Members and Chairman of the

Commission had been prescribed and the present Commission had been duly constituted which was valid and justified. The respondent-

Commission is an independent body and acts without any political pressure and if the petitioner had secured lesser marks, he could not have any

grouse as such. The petitioner had been considered eligible for the post in view of the judgment of the Division Bench in Ashok Kumar''s case

(supra). The candidates belonging to ESM general category for which 18 posts were reserved in view of the judgment in CWP No. 12092 of

2007, Nawab Khan vs. State of Haryana and CWP No. 4240 of 2004, Kartar Singh vs. State of Haryana having qualification of B.A. with

Sanskrit as an elective subject and B.Ed. with Sanskrit as one of the teaching subjects had been called for interview as they had preferential right in

the matter of selection over dependants of Ex-servicemen and, therefore, the averments made in para no. 18 that some selected candidates having

B.A. B.Ed. was without any basis.

On behalf of private respondents no. 30 and 41, in the written statement filed, plea taken was that the petitioner having duly participated in the

selection process and having failed to secure the number in merit cannot turn around and say that the procedure adopted for selection was bad.

Reliance was placed upon judgment of the Apex Court in K.H. Siraj vs. High Court of Kerala and others, AIR 2006 SC 2339 . Merely because

the petitioner possessed higher qualification would not given him a right for appointment as Sanskrit Teacher and, therefore, he had no cause of

action. It was denied that any technique has been adopted that candidates of choice would come in the zone of selection and others may be ousted

from the zone of selection. It was clarified that the answering respondents were residents of district Gurgaon and possessed the necessary

qualifications and that persons excellent in academic qualifications may not give good response to the Interview Committee. Resultantly, the

method of allocation of marks and viva voce test could not be challenged and the allegations of mala fide as such were only an after thought.

In the replication filed, the petitioner relied upon the charts to show that candidates who had got high academic marks had been given low

marks in interview and similarly, ones who had got low marks in the academic session had been given high marks in the interview to bring them

within the zone of consideration. Resultantly, stress was laid down upon the higher qualification in M.A. and on account of the note given in the

essential qualifications.

At the outset, it is to be noticed that though allegations of mala fide have been levelled against the Chief Minister but he has not been made a

party in the present writ petition so that notice could be issued to him and response could be received from him whether there is any political

interference as such in the selection process. As noticed, the same has been denied by the Chairman of the Commission in the reply filed through

Secretary. It is settled principle that where allegations of mala fide are made, the person has to be necessarily impleaded as a party and in the

absence of the same having not been done, the same is not liable to be taken into consideration.

The argument which has, thus, been raised that on account of higher qualification as such of M.A., the petitioner was liable to be granted

benefit over and above others also does not cut much ice with this Court that the essential qualifications prescribed in the advertisement rather did

not show that the petitioner being M.A. in Sanskrit would get any preference as such or there is any preference clause as such. Rather, it is a

matter of record that it is only on account of the judgment of the Division Bench in Ashok Kumar''s case (supra) the petitioner was held entitled to

be considered for interview on account of having higher qualifications and, therefore, the said argument raised as such that preference should have

been given to the higher qualification over and above the others is not liable to be accepted. It is to be noticed that the selection criteria had already

been fixed by the respondent-Commission for making selection to the post of Sanskrit Teacher. A total of 90 marks was divided between the

academic qualifications which included higher qualifications whereas, interview was to carry 30 marks. The criteria prescribed by 6 Members and

duly approved by the Chairman on 21.08.2006 read thus:-

HARYANA STAFF SELECTION COMMISSION, PANCHKULA

CRITERIA FOR MAKING SELECTION ON THE POST OF SANSKRIT

TEACHER, EDUCATION DEPARTMENT AGAINST ADVT. NO. 6/200,

CATEGORY NO. 20.

LAST DATE : 21.8.2006

**********

Total Marks : 90

Essential Qualifications :

i) Shastri/BA (Hons) in Sanskrit 0.30 of the percentage of marks obtained. 30-Marks

ii) L.T.C./O.T. In Sanskrit 25-Marks

OR

B.T/B.Ed with Sanskrit as teaching subject. 0.25 of the percentage of marks obtained.

Higher Qualifications : 05-Marks

1) P.hd in the concerned subject 3-Marks

2) M.Phil./M.Ed. in the concerned subject 1-Mark

3) Post Graduation in the concerned subject 1-Mark

Viva Voce :

To assess the knowledge of subject, communication skill, general knowledge, general awareness and intelligence. 30-Marks

The petitioner, thus, was assessed at the same level as other candidates in pursuance to criteria which has already been prescribed well before

the interviews took place in July to November, 2007 and August, 2008 and, therefore, now cannot turn around and say that the criteria as such

was a tailor-made to suit certain candidates.

In order to test the averments made in the replication, directions were issued that higher marks had been awarded selectively in the interview

process to candidates having lower marks. An affidavit was directed to be filed on 29.08.2017 depicting marks of selected candidates who got

high marks in the academic criteria and corresponding interview marks granted to them. Similarly, the detail of the selected candidates who were

granted more than 25 marks in the interview was also directed to be furnished alongwith their academic marks. The needful was thereafter done by

the Secretary of the Commission by filing affidavit dated 04.10.2017. The said contention was accordingly controverted on the basis that the

interview is based upon the performance of a candidate and assessment of his marks as assigned by the Selection Committee and they cannot be

termed to be arbitrary.

Accordingly, a perusal of the information attached alongwith the affidavit would go on to show that there were more than 210 candidates who

secured more than 35 marks in the academic performance alongwith interview marks and they were granted marks varying between 8 to 23. 28

candidates had been awarded more than 20 marks and 20 have been awarded 10 or less marks in the interview. Similarly, for candidates who

were granted more than 25 marks in the interview, the number was 38 against the 498 candidates recommended for appointment. The range of

marks between the said candidates varied from 25 to 27 and the minimum academic marks varied between 25.63 to 32.95.

The above discussion would go on to show that against the 237 general category seats with which the petitioner is concerned, the number of

marks as such awarded to candidates who had secured lower academic marks is only 38 and similarly out of the 210 candidates who had got

more than 35 marks alongwith the academic performance, 28 of them had been awarded more than 20 marks and only 20 had been awarded 10

or less marks. The above ratio, on the face of the record, as such does not show that much of discrepancy or outright examples of showing award

of high marks which would warrant interference by the writ Court.

It is settled principle that the petitioner having taken a chance in the selection process and at the end of the day having not made the cut, he is

not entitled to challenge the interview process or the grant of marks in view of the law laid down by the Apex Court in Madan Lal and others vs.

State of Jammu and Kashmir, 1995 (3) SCC 486 ; Chander Parkash Tiwari vs. Shakuntla Shukla, 2002 (3) RSJ 507 and D. Sarojkumari vs. R.

Helen Thilakom and others, 2017 (9) SCC 478 . The relevant portion of the said judgment reads thus:-

In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others the petitioners took part in the process of selection made under the

general Rules. Having appeared in the interview and not being successful they challenged the method of recruitment itself. They were not permitted

to raise such an objection. This Court held as follows :-

In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with

full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement

or methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed

grave error by entertaining the grievance made by the respondents.

Same view has been taken in Madras Institute of Development Studies and Another vs. Dr. K. Sivasubramaniyan and others.

The Kerala High Court did not note the above mentioned judgments and ignored the well settled position of law in rejecting the specific plea

raised by the appellant herein that the appellant could not raise the issue that no direct recruitment should have been conducted once she had

applied for and taken part in the selection process by direct recruitment.

As far as the present case is concerned an advertisement was issued by Respondent No.6 inviting applications for the post of Music Teacher

in Samuel LMS High School. Respondent No.1 did not raise any objection at that stage that the post could not be filled in by direct recruitment

and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having

taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim

that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance

with the law laid down by this Court. In view of this we need not go into the other issues raised.

Resultantly, keeping in view the above discussion, this Court is of the opinion that no scope is made out for quashing the selection made against

the above said advertisement. Accordingly, finding no merit in the present writ petition, the same is dismissed.