Kuldip Kumar vs State of Punjab and others

Rajesh Bindal, J.—This order will dispose of CWP Nos. 4268 of 2010 and 6295 of 2011, as common questions of law and facts are involved therein. Challenge in the present writ petitions has been made to the selection for the posts of Laboratory Attendant in the privately managed institute of Engineering. In CWP No. 4268 of 2010, the petitioner has challenged selection in the General Category, whereas in CWP No. 6295 of 2011, the selection is challenged pertaining to Backward Class category.

Learned counsel for the petitioners submitted that respondent No. 2, namely, Baba Hira Singh Bhathal Institute of Engineering & Technology, Lehragaga, District Sangrur, advertised various posts of teaching and non-teaching staff. Seven posts of Laboratory Attendants were advertised, out of which three pertained to General Category, two Scheduled Castes Category, One Backward Class Category and one for Ex-serviceman Category. The qualification prescribed was matriculation or equivalent and preference was to be given to science candidates. The candidates were to apply on or before 22.10.2009. The candidates, who had applied for the post, were subjected to written test and interview. No weightage was given of the marks obtained in the written test. The criteria for selection was never made known to the candidates. The petitioners came to know the criteria adopted for selection only in response to an application filed under the Right to Information Act, 2005. Even as per the criteria, providing 30% marks for the interview was totally arbitrary. It is on the higher side which enabled the authorities to manipulate the result of selection. He further submitted that though in the advertisement preference was shown to be given to Science candidates, however, this provision was given a complete go by. The petitioners, who were having experience for working in a laboratory in an educational institution, were not given the benefit thereof. In support of his submissions, reliance was placed upon Mohinder Sain Garg v. State of Punjab and others, 1991(1) SCT 647.

The additional contention raised by learned counsel for the candidate in Backward Class Category (in CWP No. 6295 of 2011) is that the petitioner herein was having experience. In fact, husband of selected candidate therein was working in the Estabhlishment Branch of respondent No. 2, who was able to ensure selection of his wife-respondent No. 4. He further submitted that the petitioner had secured more marks in Matriculation examination as compared to the selected candidate. She was also having Diploma in Computer Engineering. Her marks before interview were 46.56 as compared to 37.76 marks secured by respondent No. 4, i.e., selected candidate. However, on the basis of marks in interview, she was able to steal a march over the petitioner.

On the other hand, learned counsel for the respondents submitted that the criteria on the basis of which the selection was made was prescribed by the Government vide order dated 7.7.1998. In terms thereof, for Class-IV Technical employees in Technical Education Institutions, 30 marks were given for the minimum basic educational qualification which was prescribed as Matric. Five marks were prescribed for higher qualification and 5 marks for experience. The written test was of 30 marks and 30-marks were prescribed for interview; making it a total of 100 marks. The institute being governed by rules and regulations framed by the State Government could not deviate from the criteria prescribed. The selections have been made strictly in terms thereof by a selection committee constituted for the purpose. It cannot be said to be arbitrary. The petitioners having participated in the selection cannot now be permitted to challenge the criteria therefor. The criteria as such has not been challenged by the petitioners.

As far as the claim made by the petitioner in General Category for non-consideration of experience is concerned, it was submitted by learned counsel for the respondents that the petitioner did not mention the same in his application, hence, there was no question of its benefit being granted to him. The certificate produced by him at the time of interview was issued after the last date prescribed for submission of applications. Even the certificate was found to be wrong as the period of experience mentioned therein was not correct. The institute where the petitioner had worked was not recognised earlier. It was further submitted that there are no allegation of malafide as no one has been impleaded as party by name in the petition. He further submitted that the advertisement clearly provided that the posts are to be filled up on contract basis for a period of three years. It was further submitted that 30% marks prescribed for the interview cannot be said to be on higher side. The judgment in Mohinder Sain Garg''s case (supra) is not applicable to the facts and circumstances of the present case in view of the subsequent judgments of Hon''ble the Supreme Court in Anzar Ahmed Vs. State of Bihar and others, and Manish Kumar Shahi v. State of Bihar and others, (2010) 12 SCC 576.

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

The primary contention raised by learned counsel for the petitioners in both the writ petitions is that prescription of 30% of the total marks for interview is not in conformity with the law laid down on the subject.

The institute, in which selection has been made, is privately managed. The Government of Punjab, Department of Technical Education and Industrial Training, had prescribed criteria for selection of Class-IV (technical employees) in the State vide order dated 7.7.1998. The relevant part thereof is extracted below:

Class-IV (technical employee)

Marks

1)

Minimum educational qualification (10th pass)

30

2)

Higher qualification

5

3)

Marks for experience/apprenticeship

5

4)

Test

30

5)

Interview

30

A perusal of the aforesaid criteria shows that 30 marks have been prescribed for minimum educational qualification, whereas 5 marks have been prescribed for higher qualification. Five marks have been prescribed for experience/apprenticeship. Written test and interview have been assigned 30 marks each, making it a total of 100 marks. The respondent-Institute, where the selections have been made, was bound to follow the criteria laid down by the Government for the purpose. There is no challenge to the criteria laid down as such in the writ petition.

The contention is that prescription of 30% marks for the interview is arbitrary. In support, reliance was placed upon a judgment of Hon''ble the Supreme Court in Mohinder Sain Garg''s case (supra), whereas the respondents had referred to subsequent judgments of Hon''ble the Supreme Court in Anzar Ahmad''s case (supra) and Manish Kumar Shahi''s case (supra), where while considering the earlier judgment in Mohinder Sain Garg''s case (supra), it was opined that prescribing more than 12-1/2% marks for interview cannot be said to be illegal in all cases. It has further been opined in the aforesaid judgments that the candidates having already participated in the selection cannot be permitted to challenge the same. No straight-jacket formula has been judicially evolved for determining a particular percentage of marks for viva-voce test/interview.

The issue as to whether in a particular selection prescribing more percentage of marks for interview is arbitrary depends on facts and circumstances of each case and the job for which the selection is being made. The matter was also considered by this court in CWP No. 21618 of 2008 -Dinesh v. The Life Insurance Corporation of India and another, decided on 1.5.2012, where for the post of Apprentice Development Officer in Insurance Company, prescribing 50% marks for qualification and 50% for interview was upheld considering the nature of job.

In support of the allegation that there was some favouritism, no allegation of malafide has been made in the writ petition and no person, against whom such an allegation has been levelled, has been impleaded as party by name. As regards consideration of experience is concerned, the petitioner in the General Category, had not claimed the same in his application by annexing the certificate showing such experience.

Considering the stand of the respondents that in terms of the advertisement, appointment is on contract basis for a period of three years where the selected candidates joined in December, 2009, without recording any definite finding on any of the legal issues raised in the writ petition, this court would not like to interfere in the writ petition at this stage considering that out of the contractual period of three years, more than 2-1/2 years have already elapsed. For the reasons mentioned above, both the writ petitions are dismissed.