Dalbir Singh and Another vs State of Punjab and Others

Rajesh Bindal, J.—This order will dispose of C.W.P. Nos. 8923, 9082, 13508, 18970, 19058, 19579 and 20442 of 2012, as common questions of law and facts are involved. Challenge in these petitions is to the selection and appointment to the posts of Laboratory Attendant made by Punjab School Education Board (for short, ''the Board'').

Briefly, the facts are that on 27.4.2011, an advertisement was issued by the Board for selection to 31 posts of Laboratory Attendant. Last date for submission of application was 9.5.2011. A total of 4,752 candidates applied for the posts. Written test for short-listing of the candidates was held on 28.9.2011, in which 4,594 candidates appeared. The total marks of the written test were 60. A bench mark of 33%, namely, 20 marks out of 60 marks was prescribed for short-listing the candidates, as a result of which 1952 candidates were short-listed. They were interviewed on different dates and finally the selection was made, which has been impugned in the present bunch of petitions.

Learned counsel for the petitioners submitted that the process which has been adopted by the Board for selecting the candidates for the posts of Laboratory Attendant is totally arbitrary. The merit has been given a complete go by. The candidates, who were meritorious in their studies or had topped in the written test, have been ignored and those, who were average or even below average in their studies and were quite low in merit in the written examination, have been selected by giving higher marks in interview. In the advertisement, it was not prescribed that there would be a written test which shall be followed by an interview. Even after the written test was notified, the impression given was that the same was of 60 marks, whereas rest 40 marks will be for interview, but still the marks obtained by the candidates in the written test were totally ignored and the selection was made merely on the basis of interview in which some small portion of marks was for educational qualifications or the experience. Even as per the case set up by the Board, the criteria for selection was prescribed just before the interviews were to take place. It was like changing the horses midstream, which cannot be permitted. The criteria for any selection has to be prescribed in advance before even the advertisement is issued. It should not be tailor-made for the candidates who had applied in response to the advertisement to ensure that favorites are selected. In fact, once the written test was held, due weightage should have been given to the marks obtained therein. The persons, who had secured higher marks in the written test, have been totally ignored. The process, which has been followed for short-listing of the candidates, also cannot stand judicial scrutiny for the reason that for 31 posts, 1952 candidates were short-listed out of 4752 candidates, which can be said to be an eye-wash. The short-listing of candidates should have some relation with number of posts available. Only the candidates, who secured higher marks in the written test, should have been called for interview or for further selection process.

It was further submitted that even if the criteria is seen, the same is totally arbitrary. It provides five marks each for qualification and experience. Five marks have been provided for the rural candidates, which does not have legal sanction. Besides that, 15 marks have been provided for knowledge of science practical equipments and 20 marks were prescribed for interview. Practically out of 50 marks, 35 marks were for interview and five for rural area. Only 10 marks were for educational qualifications and experience. This was the root cause of entire manipulation, as the candidates, who secured less marks on account of their qualifications or experience, were given higher marks in the interview and knowledge of science practical equipments to enable them to steal a march over the meritorious candidates. Some of the candidates, who did not have any experience, were given higher marks in knowledge of science practical equipments, whereas persons having experience were given lesser marks. In fact, the interviews were over on 11.11.2011, however, the result was not declared. Final select list was prepared on 4.4.2012 when after Assembly elections, the new government had taken over. The result of only selected candidates was declared, whereas the result of all the candidates, who had appeared in the interview, should have been declared. It was further submitted that in general category, out of 15 selected candidates, nine belong to village Lambi, District Muktsar. In reply to paragraphs 6 and 8 in CWP No. 9082 of 2012, it has specifically been admitted by the Board that selection has been made on the directions of the State Government. In support of the arguments, reliance was placed upon Jaswant Singh and Others Vs. State of Haryana and Others, Pinki v. Kurukshetra University, Kurukshetra, 1995(1) S.C.T. 313: 1995(2) RSJ 284 Praveen Singh Vs. State of Punjab and Others, and B. Ramakichenin @ Balagandhi Vs. Union of India (UOI) and Others,

In response to the contentions raised by learned counsel for the petitioners, learned counsel for the respondents submitted that in the advertisement issued for selection, the qualifications required for the post were clearly mentioned. It was also mentioned that in case the candidates are more than the posts, the candidates shall be short-listed on the basis of merit. The written test conducted by the Board was merely for short-listing and not for selection as such. In the written test, minimum bench mark of 33% was prescribed. All the candidates who had secured marks above that were subjected to interview. The criteria for selection was prescribed by the Selection Committee before the interviews started. The same is quite reasonable. It gives marks for qualification and experience. As the post is of Laboratory Attendant, where practical knowledge of laboratory equipments is essential, for the purpose 15 marks were prescribed. The candidates who belong to rural area are certainly required to be given some advantage, hence, five marks were prescribed for that. Out of total 50 marks, only 20 marks were prescribed for interview, which were not on higher side. For class-III and class-IV post, entire selection could be merely on the basis of interview and without any written test. Interview was meant for testing the communication skills, presentation and personality of the candidates. The entire result of the selection was not required to be put on the website or printed in the newspaper. List of the selected candidates was displayed. Whosoever asked for the information, the same was supplied to him. There was no illegality or irregularity therein. The prayer was for dismissal of the writ petitions while upholding the selection.

Heard learned counsel for the parties and perused the paper book.

The undisputed facts are that the Board advertised 31 posts of Laboratory Attendant. In response, 4752 candidates applied. The advertisement issued provided that in case the candidates are more than the posts, they can be short-listed on the basis of merit. Written test was held for short-listing of candidates on 28.9.2011, in which 4594 candidates appeared. The written test was of 60 marks. A bench mark of 33%, i.e., 20 marks out of 60 marks was fixed for short-listing of candidates, as a result of which 1952 candidates were short-listed and interviewed on different dates. The selection was made on the basis of criteria where marks were given for basic qualification, rural area, experience, knowledge of laboratory equipments and interview.

To examine the merits of the controversy, the first issue which requires consideration by this court is as to whether the process, which was followed for short-listing of candidates was proper or not. If the exercise of short-listing was to be carried out and the selection was ultimately to be made on the basis of marks obtained in basic qualification and interview, whether there has to be limit of candidates to be short-listed, vis-�-vis, the number of posts and as to whether the candidates then had to be called on the basis of merit in the test conducted for short-listing or merely a bench mark could be fixed for calling all the candidates securing marks above that for interview irrespective of the number of posts advertised?

In the present case against 31 posts, 1952 candidates were called for interview, which is claimed to be after short-listing. A similar issue came up for consideration before Hon''ble the Supreme Court in State of Punjab and Others Vs. Manjit Singh and Others, , wherein it was opined that as far as power of the appointing/selecting authority for short-listing of candidates is concerned, no exception can be taken thereto because many times the number of applications received in response to the advertisement are too many which are required to be short listed to permit the candidates passing through that process to appear for final examination or for interview, but there has to be some limit on the persons to be called for further process. It has direct relation with number of posts advertised. In case all the candidates who had secured marks above the cut-off prescribed, are called for further test or interview, the same will not amount to short-listing. The ratio in the aforesaid case, which was found to be reasonable was five times the number of vacancies advertised. The persons to be called for interview have to be on the basis of merit position in the written test conducted for short-listing. The relevant paragraphs of the aforesaid judgment are extracted below:

Now adverting to the point under consideration, it may be observed that so far as the powers and functions of the Commission in shortlisting of candidates are concerned, there can certainly be no doubt about it. Say, for example, 10,000 candidates apply for recruitment of 100 posts, it would obviously not be possible to take full test/examination and interview of such a large number of applicants, though eligible. In that event shortlisting of the candidates by screening out those, in respect of whom it would serve no purpose to call them for further test, may be excluded by adopting the method of screening test. Generally speaking, a ratio of 3:5 candidates for one post is normally accepted depending upon the number of seats. Therefore, for 100 posts the selecting body may in order of merit take out about first 500 candidates for further test/interview. The rest of the candidates would be screened out. No candidate excluded by adopting such a method of shortlisting can raise any grievance whatsoever.

But for such shortlisting as indicated above, it is not necessary to fix any minimum qualifying marks. Any candidate on the top of the list at number 1 down up to 500 would obviously constitute the shortlisted zone of consideration for selection. For the purpose of elaboration it may be observed that in case some cut-off marks are fixed in the name of shortlisting of the candidates and the number of candidates obtaining such minimum marks, suppose is less than 100, in that event screening test itself will amount to a selection by excluding those who though possess the prescribed qualification and arc eligible for consideration but they would be out of the field of consideration by reason of not crossing the cut-off marks as may be fixed by the recruiting body. This would not be a case of shortlisting. In shortlisting as observed above, any number of candidates required in certain proportion of the number of vacancies, may be short listed in order of merit from Serial No. 1 up to the number of candidates required.

xxx xxx xxx

As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit. For example, there may be a situation where more than the required number of candidates may obtain marks above the cut-off marks, say for example, out of 10,000 if 8000 or 6000 candidates obtained 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so, any candidate who is otherwise eligible up to the 500th position, whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut-off marks.

(Emphasis Supplied)

In the present case, as against 31 posts advertised, 1954 candidates were short-listed which is more than 63 times of the number of posts. The process of interview continued for 19 days.

The violation of the principles laid down in the aforesaid judgment has resulted in disparity in the process of selection, as the candidates who were ultimately selected had secured far less marks in the written test and were quite low in merit as compared to the candidates who have been ignored. In fact, the case set up by the petitioners is that the candidates who had secured marks even more than 50 out of 60 in the written test were not selected, whereas the candidates who had secured merely 25 marks have been selected. The maximum marks obtained by a candidate in the written examination were 53. Though no merit list as such prepared of the candidates who appeared in the written test, was produced before the court by the Board stating that as the criteria was cut-off marks, but it is evident from list of candidates who had appeared in the written test as produced in CWP No. 8923 of 2012.

The criteria on the basis of which the selection was made is extracted below:

CRITERIA FOR THE SELECTION OF LAB. ATTENDANTS

i) Academic qualifications:

Matriculation

Supporting Qualifications/Activities:

It may be added here that though in the aforesaid criteria, total marks prescribed for interview are 50, however, in the office note dated 5.10.2011, which was approved by the Chairman on 7.10.2011, 40 marks were proposed for interview while mentioning that the criteria, which has been prepared has been kept separately in the file, hence, there is total mismatch in the decision taken and the action taken on the basis thereof. The manner in which the file was dealt with has been discussed in later part of the judgment.

The list of selected candidates in each category, as was produced in court by counsel for the Board, providing the marks obtained in interview and on the basis of qualification as per the criteria, mentioned above, is extracted below. In addition thereto, the place to which the selected candidate belong and the marks obtained by him/her in the written test have been added from the result-sheet of the written test.

GENERAL

In the selection criteria, 15 marks had been provided for qualification, experience and for rural area, which have been mentioned in the column with the title as "sub total (15). In addition thereto, 15 marks are for knowledge of science practical equipments and 20 marks for interview. The marks obtained by each candidate in the aforesaid two categories have been separately specified in the select list, as referred to above. A perusal of the select list shows that out of 15 marks meant for qualification, experience and rural area, some of the candidates had secured merely 2-3 marks. Meaning thereby that they had secured very less marks in their educational qualification and did not have any experience whatsoever.

In the criteria, a candidate who had secured third division in Matriculation examination had been awarded two marks. Four candidates out of total 31 selected had secured merely two marks out of 15. It means that they had passed Matriculation examination in third division having no experience whatsoever. Four candidates had secured merely three marks, who may either be having third division in Matriculation examination with one year''s experience or may be having second division in Matriculation. Nine out of 15 candidates selected in general category belong to Shri Muktsar Sahib District. Despite the fact that some of the selected candidates had not secured good marks in their Matriculation examination and were not having any experience whatsoever, but still they were given very high marks in knowledge of science practical equipments and interview. In fact, out of 50 marks, 35 marks were meant for interview only. The marks obtained by the aforesaid selected candidates in the written test were also quite low as compared to the candidates who had topped or had secured very high position in the written test, but they have been ignored. As per the declared policy of the Board, as was even mentioned in the advertisement itself, short-listing of the candidates was to be on the basis of merit, but as is evident in the case in hand, shortlisting was merely by providing a bench mark and not taking the candidates who were high up in the merit list in the written test conducted for short-listing. The same is in violation of the law laid down by Hon''ble the Supreme Court.

The next issue which also has material bearing in the process of selection is the fixation of criteria. The Board did not produce before the court any material to show that the criteria for selection was fixed before the process therefor was started. Even as per the file produced before the court, the same was fixed merely on the date when the interviews were to start. By that time, the result of written test conducted for short-listing had already been declared. Nothing has been produced to show that before the written test was conducted for short-listing, any criteria was fixed as to how the candidates are to be taken for the purpose of interview etc. before final selection takes place.

The office file dealing with recruitment to the posts of Laboratory Attendant produced in court was perused.

On 11.4.2011, while taking a decision to initiate process for selection, a Committee consisting of four officers was constituted for suggesting the method for short-listing the candidates. Advertisement inviting applications was published in the newspaper on 27.4.2011. The last date for submission of the applications was 9.5.2011.

On 25.5.2011, a note was put up by the office that two of the posts, who were members of the Screening Committee, were lying vacant, hence a fresh Committee be constituted. Subsequently, on the same date, two members were substituted.

A meeting of the Committee for short-listing the candidates was held on 14.9.2011 and, inter-alia, it was decided that decision to fix the criteria for shortlisting the candidates shall be taken only after the result of written test being conducted for the purpose, is submitted to the Deputy Secretary (Legal). The written test was conducted on 28.9.2011.

After the result of written test was submitted to the Deputy Secretary (Legal), the office had put up a note to seek guidance as to the candidates who are to be called for interview, The office note suggests that information was furnished to the effect that 2,027 candidates appeared in the written test and out of that 1,950 had secured more than 33% marks. The Chairman approved the note that all the candidates securing more than 33% marks be called for interview. The aforesaid information is contrary to what has been provided in court, in terms of which 4,594 candidates appeared in the written test and 1,952 secured more than 33% marks.

Noting in the official file was pointed out to suggest that any decision was taken by the Committee constituted for short-listing the candidates before the written test was conducted. After the result of written test was submitted in the office, the office note pointed out the number of candidates who had secured more than 33% marks (note dated 30.9.2011). The Chairman directed that all of them be called for interview. It is apparent that in fact, exercise for short-listing the candidates was in futility as the number of candidates short-listed was 63 times the number of vacancies. Thereafter, the file was processed only for the purpose of fixation of dates for interview or change in dates thereof. The file was dealt with upto 8.11.2011 with noting sheet page No. 28. Thereafter, at page No. 29 of the noting sheet, a note is available dated 5.10.2011 seeking guidance for fixation of norms for selection while mentioning that written test of 60 marks had already been conducted and 40 marks have been prescribed for interview. It is further mentioned in the note on the same date, which was apparently approved by the Chairman on 7.10.2011, mentioning that a copy of the criteria prepared has been kept in the file. The aforesaid criteria was changed, as is evident from the note dated 10.10.2011 whereby five marks, which were earlier prescribed for NCC/NSS, were added towards the marks prescribed for knowledge of science practical equipments, which were increased from 10 to 15 marks. (In fact, the criteria on the basis of which the interviews were conducted, as is available in the file and has been referred to in preceding paragraph No. 13 of the judgment, shows that the total marks for interview were taken as 50 and not 40, for which there is approval in the file). After the aforesaid noting concluded at page No. 30 of the file on 10.10.2011, at page No. 31 there is another noting of 5.10.2011 seeking permission to call the candidates who had passed the written test for interview. The aforesaid file was dealt with upto 12.10.2011 at page No. 34. Thereafter, at page No. 35 again, a fresh noting started on 10.10.2011 pertaining to inclusion of an expert in science practical.

The other factor in the file which does not inspire confidence in the process followed for selection to the post of Laboratory Attendant is that in the note dated 4.10.2011, the dates of interview have been mentioned as 10.10.2011 to 1.11.2011. It was changed from 10.10.2011 to 11.11.2011 vide note dated 10.10.2011. In another note dated 5.10.2011, the dates of interview have been mentioned as 10.10.2011 to 11.11.2011, though the dates were changed on 10.10.2011.

In the file, there is a portion containing some typed copies of the schedule of interview, public notices, office orders etc. Upto page 83, there is an order on record which was signed on 8.11.2011. Next documents are serialised from page Nos. 78 to 84. The title is ''Criteria for selection of Laboratory Attendants''. There are lot of cuttings on these documents prescribing the criteria. The same are initialled on 5.10.2011 and 10.10.2011. No minutes of meeting in the file were pointed out whereby any Committee constituted for the purpose had fixed the criteria. In fact, apparently the document from page Nos. 78 to 84 has been inserted in the file later on, as there is no continuation of dates in the file. After the document at page No. 83 dated 8.11.2011, at page No. 85 again there is a document initialled on 5.10.2011.

No deliberations in the form of minutes of meeting by the Selection Committee are available in the file showing fixation of criteria of selection, rather, number of documents and the cuttings made therein regarding fixation of criteria shows that apparently the same may have been tailor-made and so is the position with regard to fixation of bench mark for calling the candidates for interview which otherwise did not have any nexus with the object sought to be achieved, namely, short-listing of candidates on merits.

Another aspect which deserves to be mentioned here is that in the reply filed in CWP No. 9028 of 2012, the stand taken by the Board in paragraphs 6 and 8 is that as per the directions of the government, 31 Laboratory Attendants were selected.

For the reasons mentioned above, in my opinion, the process of selection does not inspire confidence and deserves to be set aside. The posts be re-advertised for selection afresh within a period of two months by prescribing the criteria for selection and the process for short-listing in advance. The petitions stand disposed of.