Dinesh Kumar vs State Of Himachal Pradesh & Others

Jyotsna Rewal Dua, J

The challenge in this appeal is to the judgment dated 30.09.2015, passed by learned Single Judge, whereby writ petition, filed by the appellant

assailing the selection and appointment of respondent No.6, to the post of DPE, was dismissed.

Factual position in the instant case is:-

2(i). Applications were invited for filling in one post of DPE in Government Senior Secondary School, Jaddu Kuljar, Tehsil Jhandutta, District Bilaspur,

under PTA Policy. Last date for applying was 05.10.2007. 53 candidates applied for the post. 25 candidates eventually appeared in the Interview held

on 05.10.2007.

2(ii). The result was declared and respondent No.6, was selected for the post of DPE on PTA basis. He joined as such, the very next day of holding

of Interview, i.e. on 06.10.2007.

2(iii). The petitioner filed a complaint before Sub Divisional Magistrate-cum-Chairman Inquiry Committee, Ghumarwin, District Bilaspur, against the

selection and appointment of respondent No.6 as DPE on PTA basis. Vide order dated 22.09.2008, the Chairman, holding that merit has been ignored

by the PTA Committee while appointing respondent No.6, sent the recommendations to the Head of the Institution as well as to the President, PTA,

for further necessary action.

2(iv). The appeal filed by respondent No.6 against the above decision of Chairman Inquiry Committee, was allowed by the Additional District

Magistrate, Bilaspur, vide order dated 09.04.2010. The order was on the basis that in the selection process, respondent No.6 had secured 58.05 marks,

whereas, the petitioner secured 56.43 marks. Therefore, it was observed that merit has not been ignored by the PTA Committee. It was further

observed in the order that any criteria which came into force subsequent to the completion of the selection process cannot be applied with

retrospective effect.

2(v). Aggrieved by the order passed by the ADM as well as against his non-selection as DPE, the appellant invoked jurisdiction of this Court under

Article 226 of Constitution of India by filing a writ petition. This writ petition was initially allowed on 20.12.2012. The appointment of respondent No.6

to the post of DPE was set aside and the order passed by the ADM was also quashed. However, respondent No.6 preferred Letters Patent Appeal,

against the judgment dated 20.12.2012. In the appeal, vide decision dated 17.06.2013, the judgment passed by learned Single Judge, was set aside and

the writ petition was restored to its original number for it’s decision afresh.

2(vi). In view of the above directions, the writ petition came to be decided once again on 30.09.2015. Vide this judgment dated 30.09.2015, impugned

in the present appeal, the selection of respondent No.6, has been upheld and the writ petition has been dismissed.

Feeling aggrieved against the decision of learned Single Judge, the present appeal has been preferred. We have heard learned counsel for the

parties and gone through the record.

Contentions :-

4(i) Learned counsel for the appellant contended that:-

(a) The selection criteria adopted by the PTA Committee was not fair and transparent. It was made to favour the blue eyed persons of the members

of Selection Committee. Prejudice has been caused to him by adoption of a discriminatory and arbitrary selection criteria.

(b) Petitioner was the only Post Graduate candidate with M. Phil degree. But only 4% out of total percentage of marks secured in Post Graduation

(M. Phil), was to be allocated in this criteria to such Post Graduate candidates with M. Phil degree. Whereas, candidate with Ph.D degree was to be

awarded 10 marks. This is alleged to be unreasonable and arbitrary criteria.

(c) 5 marks allocated in the selection criteria for ‘Local Dialects’ were meaningless. In the instant case, 5 marks reserved for candidates

conversant with local dialects, was only to be a tool in the hands of Member of the Selection Committee, to allocate the same to candidates of their

choice, irrespective of their merit.

(d) The marks reserved under the heading ‘Local Dialects’ is in violation of the judgment passed by the Hon’ble Apex Court in( 2002) 6

SCC, 562, titled as Kailash Chand Sharma v. State of Rajasthan and others.

4 (ii) Per contra, learned counsel for the respondents, submitted that a fair and reasonable criteria was adopted by the PTA Committee for selection of

DPE. It is further contended that after participating in the selection process, it is not open for the writ petitioner to challenge the same.

Observations:-

5(a) We are constrained to observe that the selection criteria adopted by the respondents was faulty, arbitrary and unreasonable. The resultant

selection process culminating in selection and appointment of respondent No.6, therefore, cannot be held to be lawful. We are observing so for the

following reasons:-

(b) The record shows that selection criteria (Annexure R-6) was prepared only by the President, PTA on 05.10.2007, i.e. on the date of the holding of

Interview. The competing candidates were not made aware about this criteria before participating in the Interview. Thus, there was no occasion to

challenge the same earlier.

(c) As per this selection criteria, the selection was to be conducted out of 100. It is not clear from the criteria as to whether selection was out of 100%

or 100 marks. It will be appropriate to reproduce this criteria hereunder:-

“Criteria

Academic Examination Percentage MM 100

(1) Basic qualification for the 35% (of the total percentage)

post,i.e. +2 or graduation.

(2) Professional Education for 30% â€​

the post, i.e. B.Ped or B.P.E

(3) Higher Education for the M. 10% â€​

Ped.

(4) (a) M-Phil 4% (of the total 10 (10 marks of Ph.D completed by the

percentage) (b) Ph. D. candidate)

Interview

(5) Subject Expert M.M 10

(5) Local Dialect 05

Total= 100â€​

(d) In terms of above criteria, framed by Pradhan-PTA, in case, a candidate is holder of M. Phil degree, he is to be given 4% out of total percentage

of marks secured by him in M. Phil. However, in case, the candidate is Ph.D, he is to be given total 10 marks. This defies logic. When a candidate

possessing Ph.D degree, could get 10 marks in the criteria, then why not some specific marks could be allocated to a candidate for possessing M. Phil

degree. There is no logic to the adopted criteria, of giving 10 marks to Ph. D candidate and 4% out of total percentage of marks to M. Phil candidate.

Award of just 4% out of total percentage of marks secured by the appellant in M. Phil degree instead of allocating some specific marks, has definitely

caused prejudiced to him. Also, it is not understandable as to why the differentiation was made between holder of M. Phil and Ph. D degree in respect

of allocation of percentage of marks and allocation of specific marks. It is to be noticed that petitioner was the only candidate with Post Graduation

degree of M. Phil.

(e) It was argued during hearing that PTA Committee perhaps followed the criteria for selection of Para Teachers, a post different to DPE (PTA).

However, even if criteria for selection of Para Teachers at (Annexure R-4/2) is perused, it shows entirely different picture. The marks there are

awarded, which are in turn based on percentage of marks. This is not the position in the instant case. In any case, it is not the pleaded case of the

respondent that the selection criteria was based upon Para Teachers’ selection criteria.

(f) Looking at this criteria as a whole, it is impossible to fathom as to whether it is out of 100 marks or out of 100% because both ways, it leads

nowhere. Neither 100 marks can be secured in the above criteria nor 100%, by a candidate. How the total comes to 100 is baffling.

(g) The criteria allocates 5 and 10 marks respectively under the heading ‘Local Dialect’ and ‘Subject Expert’. The result of the selection

process at (Annexure P-4) is revealing in various aspects. It is nobody’s case that 25 candidates who appeared in the interview did not belong to

the area or were not conversant with the ‘Local Dialects’. Yet, in this result under the heading ‘Local Dialects’, it is only the selected

candidate/respondent No.6, who has been given complete full 5 marks out of 5. No other candidate has been given full 5 marks. As per arguments

addressed at bar, all candidates were local. Appellant and respondent No.6 belonged to same Tehsil and District, with just 6 K.M. distance between

their houses. It is profitable to reproduce relevant Paras of the judgment passed by the Hon’ble Apex Court in (2002) 6 SCC, 562, titled as Kailash

Chand Sharma v. State of Rajasthan and others:-

“33. The above discussion leads us to the conclusion that the award of bonus marks to the residents of the district and the residents of the rural

areas of the district amounts to impermissible discrimination. There is no rational basis for such preferential treatment on the material available before

us. The ostensible reasons put forward to distinguish the citizens residing in the State are either non-existent or irrelevant and they have no nexus with

the object sought to be achieved, namely, spread of education at primary level. The offending part of the circular has the effect of diluting merit,

without in any way promotion the objective. The impugned circular dated 10-6-1998 insofar as the award of bonus marks is concerned, has been

rightly declared to be illegal and unconstitutional by the High Court.

One more serious infirmity in the impugned circular is that it does not spell out any criteria or indicia for determining whether the applicant is a

resident of rural area. Everything is left bald with the potential of giving rise to varying interpretations thereby defeating the apparent objective of the

rule. On matters such as duration of residence, place of schooling etc., there are bound to be controversies. The authorities, who are competent to

issue residential certificates, are left to apply the criteria according to their thinking,which can by no means be uniform. The decision in State of

Maharashtra v. Raj Kumar is illustrative of the problem created by vague or irrelevant criteria. In that case a rule was made by the State of

Maharashtra that a candidate will be considered a rural candidate if he had passed SSC Examination held from a village or a town halving only ‘C

type municipality. The object of the rule, as noticed by this court, was to appoint candidates having full knowledge of rural life so that they would be

more suitable for working as officers in rural areas. The rule was struck down on the ground that there was no nexus between the classification made

and the objection sought to be achieved because “as the rule stands any person who may not have lived in a village at all can appear for SSC

Examination from a village and yet become eligible for selection†(SCC p. 314, para 2). rule rule was held to be violative of Articles 14 and 16. when

no guidance at all is discernible from the impugned circular as to the identification of the residence of the applicants especially having regard to the

indefinite nature of the concept of residence the provision giving the benefit of bonus marks to the rural residents will fall foul of Article 14.â€​

(h ) The petitioner figuring at Serial No.2 of the result, the only candidate with Post Graduate Qualification, is given 6 marks out of 10 by the subject

expert, whereas, respondent No.6, figuring at Sl. No.3 who is not a Post Graduate, gets 10 out of 10 in addition to 5 out of 5 marks under the heading

‘Local Dialects’. Considering the way the selection criteria was made and adopted the way the marks have been allocated, distributed, the

favouritism cannot be ruled out. For selection of PTA teachers, where all the candidates will invariably be from the area concerned, it defies logic for

reserving 5 marks to be awarded for ‘Local Dialects’. Such kind of allocation of marks in the facts and circumstances of the case, will

obviously give handle to the selection committee to discriminate amongst the candidates. Selection, therefore, on the basis of such criteria cannot be

said to be transparent and free from suspicion.

Thus, looking from any angle, the selection criteria adopted by the PTA Committee, neither makes sense nor is in accordance with law. This criteria

is bound to give handle to the Members of the Selection Committee to discriminate and has actually given them leverage to choose or reject a

candidate according to their whims and caprice, causing prejudice to the deserving candidates. We cannot loose sight of the fact that for one post,

there were 53 applicants, out of which, 25 had appeared for the interview.

In view of the above discussion, the judgment passed by learned Single Judge, dated 30.09.2015, is set aside. The selection and appointment of

respondent No.6, as DPE, in Government Senior Secondary School, Jaddu Kuljar, Tehsil Jhandutta, District Bilaspur, is also set aside. Respondents

No.1 to 3, are directed to conduct a fresh selection process by following a reasonable, just and transparent criteria, which is free from ambiguity and

which is clear and does not leave any room for its misuse. Though, it will be a fresh selection process, however, 25 candidates, who had appeared in

the interview for the post in question on 05.10.2007, will also be at liberty to participate in the fresh selection process. The selection process be

initiated and taken to its logical conclusion within 3 months from today.

The appeal is accordingly allowed. Pending application(s), if any, also stand disposed of.