Mukesh Kumar vs State of Haryana and Others

Daya Chaudhary, J.—The prayer in the present petition is for quashing of selection of respondents No. 4 and 5 to the post of Clerk and also for issuance of direction to respondents No. 1 to 3 to appoint the petitioner in place of respondents No. 4 and 5 being more meritorious.

Brief facts of the case are that an advertisement was published in the daily newspaper i.e. "Punjab Kesri" and "The Tribune" on 21.01.2012 for inviting applications to the posts of Clerk as well as Chowkidar. The qualification for the post of Clerk was Matriculation/Higher Secondary from recognized Board/University or its equivalent. The age required for the said posts was to be between 18 to 35 years.

However, in response to the said advertisement, the petitioner applied for the post of Clerk and he was issued a call letter dated 01.03.2012 for type test and interview. The petitioner, being more meritorious and having more experience, was not selected on the post, in question, whereas, respondents No. 4 and 5 have been selected by awarding more marks in the interview.

Learned counsel for the petitioner submits that the petitioner was not awarded marks for the experience, he gained. Had the marks for experience been awarded to him, he would have been selected. He also submits that total 13 candidates were short listed for interview and during interview, the performance of the petitioner was very good but still, he has not been selected. The petitioner secured 54 marks out of 60 marks in the type test but he was awarded ''zero'' marks in the interview, whereas, respondents No. 4 and 5 were awarded 14 and 20 marks, respectively out of 20 marks in the interview.

Learned counsel for the petitioner has relied upon the judgments of Hon''ble the Apex Court in cases Mohinder Sain Garg Ors. Vs. State of Punjab and Others, , Sri Jyotish Kaiborta and Others Vs. The State of Assam and Others, as well as Ashok Kumar Yadav and Others Vs. State of Haryana and Others, , in support of his contentions.

Written statements on behalf of official respondent as well as private respondents have been filed which are on record.

Learned counsel for respondents No. 3 and 6 submits that the petitioner did not produce the original experience certificate at the time of interview and without having any experience, no marks were awarded to him. Even in the application form, "against Column of Experience" NIL'' was mentioned by him. He further submits that the petitioner has been working as a teacher, whereas, the experience of working as Clerk was required. He also submits that the performance of the petitioner was not good in the interview, hence, he was not found to be suitable for the post of Clerk. Learned counsel further submits that respondents No. 4 and 5 were selected by the Selection Committee by awarding marks as per criteria and no allegations have been alleged against members of the Selection Committee or other respondents.

Similarly, learned counsel appearing for respondents No. 4 and 5 submits that respondent No. 4 was highly qualified and was having ten years'' experience as Clerk and in total assessment, he was more meritorious viz-a-viz the present petitioner. Similarly, respondent No. 5 was having work experience on the post of Clerk for a period of two years at the time of submission of application and he had passed B.Com., M.Sc. in Computer Science. He was also having experience in maintenance of accounts.

Learned counsel for the respondent has relied upon the judgment of this Court in case Sunita Devi and others vs. Haryana Staff Selection Commission and another passed in CWP No. 16724 of 2011, decided on 11.03.2014.

Heard the arguments of learned counsel for the parties and have also perused the documents on the file including the original record of selection.

Admittedly, two posts of Clerks were advertised which were published in two daily newspapers i.e. in "Punjabi Kesari" and "The Tribune". However, in response to the said advertisement, the petitioner, respondents No. 4 and 5 as well as other candidates applied. All the candidates were required to appear in the type test and total 13 candidates qualified the said test and were called for viva-voce. Ultimately, respondents No. 4 and 5 were selected and hence, the petitioner has challenged the selection of those candidates by way of filing the present petition on the ground that he is more meritorious viz-a-viz respondents No. 4 and 5 as he got maximum marks in the type test but ''zero'' marks were awarded to him in the viva-voce and no marks were awarded for experience, whereas, the Experience Certificate was produced by him before the Selection Committee at the time of interview.

The case of the official respondents is that no allegations are there against members of the Selection Committee and the candidates, who were found to be more meritorious on the basis of criteria, were selected. The petitioner did not produce any Experience Certificate and hence, no marks were awarded to him for the same. His performance was not good in the interview and hence, he was awarded ''zero'' marks.

Learned counsel appearing for respondents No. 4 and 5 submits that respondents No. 4 and 5 being more meritorious, experienced, highly qualified and on the basis of their performance in the interview, have been selected.

The qualification, age and grade for the post of Clerk, as mentioned in the Advertisement, is reproduced as under:-

Clerk-2 (Gen): Qualification: (i) Matriculation/Higher Secondary of recognized Board/University or equivalent, (ii) Computer, Grade: 5200-20000+GP1900.

Age: 18 to 35 years, Age relaxation as per rules of DGHE/KUK

The merit list prepared by the Selection Committee is reproduced as under:-

As per merit list prepared by the Selection Committee, the petitioner has been awarded 54 marks out of 60 marks in type test and he has not been awarded any marks for experience and interview, whereas, respondent No. 4 has been awarded 45 marks in the type test, 10 marks for experience and 14 marks for interview and accordingly, his total comes to 69 marks. Similarly, respondent No. 5 has been awarded 32 marks in the type test, 2 marks for experience and 20 marks for interview. Hence, his aggregate comes to 54 marks.

On perusal of merit of all the candidates, it appears that the petitioner got highest marks in the type test but he has been assessed ''average'', whereas, no marks have been awarded to him for interview and experience. Though, respondent No. 5 has been awarded 20 marks out of 20 for interview but still, he secured 54 marks, in total. Similarly, respondent No. 4 got 69 marks, in total as in the interview, he has been awarded 14 marks and for the experience, he got 10 marks. The criteria adopted by the Selection Committee was not a part of the advertisement as nothing has been mentioned therein in this regard. The criteria adopted by the Selection Committee has been sought under the Right to Information Act, 2005 by the petitioner, whereby, it was reported that 60 marks were meant for typing speed, 20 marks for experience and 20 marks for interview. The experience has not been specified therein as to whether the same is of the post of Clerk or some other post. The details of the petitioner regarding qualification/marks/division are given as under:-

The qualification and other details of respondent No. 4 is also reproduced as under:-

The qualification of respondent No. 5 is B.Com., M.Sc. in Computer Science and has good experience in maintenance of accounts. Besides this, he is holding two years'' diploma in Information Technology.

It is clear from the details of qualification/experience of the petitioner as well as respondents No. 4 and 5 that the petitioner got not only highest marks in the type test but he was more meritorious in academics also. The experience of the petitioner has not been considered on the ground that he did not produce the original Experience Certificate, whereas, as per case of the petitioner, the Experience Certificate was not accepted by the Selection Committee. Had the petitioner been awarded marks for experience, he would have been selected. In spite of the fact that the petitioner had been awarded ''zero'' marks in the interview, he got 54 marks in the type test, when the other candidates, who have been selected, also got 54 marks, still the petitioner has not been selected.

Undoubtedly, there can be no hard and fast rule while awarding marks during an interview as it is for the Selection Committee to assess the candidates on the basis of their intellectual and personal qualities. It is also not disputed that the written test alone cannot evaluate the candidate''s initiative, alertness, resourcefulness, dependableness, cooperativeness and other qualities and these qualities can be evaluated through viva voce test only.

It has been observed in various judgments of Hon''ble the Apex Court as well as the judgments of this Court that the selection process cannot be interfered with only on the basis of marks awarded during interview unless some allegations of mala fide are there against member(s) of the Selection Committee. No doubt that the candidates who become unable to reach to the expectations of the Selection Committee, challenge the selection and it is not possible for the Courts to hold that every selection or interview, irrespective of the constitution of selection committee is deemed to be tainted. It is to be seen whether the selection is fair and without any mala fide as it is very easy to make an allegation against the Selection Committee and very difficult to prove the same.

There is no doubt with the proposition that the object of Selection Committee is to secure the best suitable persons as has been held by Hon''ble the Apex Court in case Lila Dhar Vs. State of Rajasthan and Others, , which is reproduced as under:-

Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be almost universal as the gateway to public services, with unfairness." United Nations Handbook on Civil Service Laws and Practice Competitive examinations were the answer to the twin problems represented by democracy and the requirements of good administration. They were the means by which equality of opportunity was to be united with efficiency. By this means favouritism was to be excluded and the goal of securing the best man for every job was to be achieved. "Public Personnel Administration by O. Glenn Stahl. "Open Competitive Examinations are a peculiarly democratic institution. Any qualified person may come forward. His relative competence for appointment is determined by a neutral disinterested body on the basis of objective evidence supplied by the candidate himself. No one has "pull" every stands on his own feet. The system is not only highly democratic, it is fair and equitable to every competitor. The same rules govern, the same procedures apply, the same yardstick, is used to test competence." Introduction in the study of Public Administration by Leonard White.

The Supreme Court also referred to the report of Kothari Committee on recruitment policy. The quoted portion is extracted below:-

A system of recruitment almost totally dependent on assessment of a person''s academic knowledge and skills, as distinct from ability to deal with pressing problems of economic and social development with people, and with novel situations cannot serve the needs of today, much less of tomorrow... We venture to suggest that our recruitment procedures should be such that we can select candidates who cannot only assimilate knowledge and sift material to understand the ramifications of a situation or a problem but have the potential to develop an original or innovative approach to the solution of problems.

The Khothari Report has further commented for judging the suitability of a person for public service, expressing that:-

The destiny of India is now being shaped in her class rooms. This, we believe is no more rhetoric. In a world based on science and technology, it is education that determines the level of prosperity, welfare and security of the people.

After taking notice of the aforesaid references, the Supreme Court observed that:-

The written examination assesses man''s intellect and the interview test the man himself and "the twain shall meet" for a proper selection.

Hon''ble the Apex Court has also observed in judgment Y. Srinivasa Rao Vs. J. Veeraiah and Others, as under:-

The decision to prefer an uneducated person over an educated person amounts to allowing premium on ignorance, incompetence and consequently inefficiency. The only fault of the appellant is to have pursued his studies beyond 10th class of his school. If he had discontinued his career as a student even earlier, say after passing 7th or 8th class, he would have been running the shop today. This clearly amounts to gross arbitrariness and, therefore, illegal discrimination. Pursuing this line the State will have to be going in search of a more inefficient person and we do not know where this process would end. If we assume that since a better qualified person has got a better chance to succeed in life, an intelligent applicant who can run the shop efficiently should be rejected and a dim witted fellow should be selected. This is an absurd situation.

During arguments, learned counsel for respondent No. 5 submitted that he does not want to press his argument qua respondent No. 5 as he has not joined the services on the post of Clerk after his selection and hence, qua him, the present petition has become infructuous.

Dismissed as having become infructuous qua respondent No. 5.

On perusal of original record of the selection and comparative merit of selected candidates as well as the petitioner and the marks awarded to the candidates in the interview, it is clear that the marks have been awarded for experience without specifying the nature of experience. The experience of the petitioner has not been considered only on the ground that the original Experience Certificate was not produced by him and it was not mentioned in the application form. Only ''zero'' marks have been awarded to the petitioner, whereas, not only his academic career is good but his performance in the type test was also very good as he secured highest marks in the type test. In spite of not being awarded any marks for experience and interview, he secured 54 marks, which are at par with the marks of the last selected candidates. The petitioner has been kept in the waiting list because of his merit prepared by the Selection Committee. It has also been brought to the notice of this Court by learned counsel appearing on behalf of respondent No. 5 that the respondent No. 5 has not joined his duties and because of his non-joining, one post fell vacant. The next candidate, namely, Ankit, who is higher in merit and in the waiting list, is to be considered by the competent authority. The present petitioner is also in the waiting list at serial No. 2 and has secured 54 marks, which are at par with Ankit, who is at serial No. 1 in the waiting list. The said candidate, namely, Ankit has not challenged the selection and hence, no directions can be issued qua him.

However, in case, the marks of Experience Certificate of the petitioner is considered, then he gets more marks than the candidate, namely, Ankit. In case, the petitioner has produced the Experience Certificate, may not be original, then also he is entitled for the marks as per criteria.

In view of the facts as mentioned above, the respondents No. 1 to 3 are directed to consider the case of the petitioner against the post which falls vacant due to non-joining of one selected candidate. The necessary exercise be done within a period of one month from the date of receipt of certified copy of this order.

The petition is disposed of with the aforesaid directions.