Suresh Kumar and others vs State and others

A. M. Mir, J.—All these three connected petitions are related to legality or otherwise of selection of teachers made by the respondentState

in response to advertisement Notice No. 4 of 1990 dated 19.4.1990 (hereafter to be called as the Notice) in Kathua District. It will be pertinent to

mention here that after the publication of the first selection list a supplementary list of 26 candidates was issued by the Recruitment Board. The

petitioners in Writ Petition No. 736 of 1992 and W.P. No. 186 of 1992, after calling in question both the lists, prayed for an interim relief of

stopping the implementation of the supplementary selection list. This court on 6.4.1993 after issuing notice in O.W.P. 186/93, by way of ad interim

direction, ordered that no appointment orders should be issued on basis of the supplementary select list. This interim direction by way of

continuation subsists. The result being that those all the candidates selected vide supplementary list are hanging in the air. They filed S.W.P. No.

107/93 in which they sought a direction from the Court that orders of their appointment be issued and they be allowed to join as teachers. The fate

of all these three petitions revolves around the question as to whether or not the selection of teachers made by the State Government in 1990 vide

the advertisement notice was valid.

The grounds on which the selection has been challenged are as under :

(i) That the petitioners in spite of having better merit have been ignored and nonofficial responden with inferior merit have been selected;

(ii) That the advertisement notice does not lay down any criteria for making the selection;

(iii) That allotment of 20 points for viva voce is against law and arbitrary;

(iv) That the supplementary select list has been published against a clear cut direction issued by the court.

The two petitions filed against the selection also detail out some instances to show that the selection of some of the respondents was made

arbitrarily and on extrane considerations.

Returns have been filed in both the petitions wherein all the grounds outlined above have been refuted. It has been maintained by the State that

selection was made strictly in accordance with the merit of candidates criterion for which was vividly laid down. Said criterion squarely conforms

to law as laid down by the highest court of the country. Supplementary select list was never acted upon, therefore, question of having flouted any

court orders does not arise. The allegations made by the petitioners while quoting instances were vehemently denied on facts.

I have heard the learned counsel for the parties for adjudging the validity or otherwise of the selection one has to address to the following

questions :

(1) Whether the Board adopted any criterion for the selection;

(2) If adopted whether that criterion stands the test of laws;

(3) Was the Constitution of the committee set up by the Board in any way vitiated ?

(4) How would the Court deal with the allegations of some candidates having been selected although they allegedly did not deserve selection ?

In the first instance, after having a prima facie look at the comparative table given by the petitioners, with respect to the petitioners and the

nonofficial respondents. I was allured by the argument of arbitrariness. This was so because Raj Kiran obtains 403 marks in matriculation and has

passed his M.Phil. examination. Similarly Yashpal petitioner obtains 392 marks in matriculation and is also M.Phil. These people have not been

selected. Similarly Suresh Kumar carries 428 marks in matriculation and is M.A.B.Ed. He also has not been selected. As against this Usha Rani

obtains 380 marks and Alpna Jasrotia obtains 307 marks in matric and are B.A.B.Ed., and M.A. only respectively. They have been appointed.

This put me to an alert because at a bird's eye view it looks like discrimination. I wanted to know as to how could this come about.

The writ petitioners have admitted that State Subordinate Service Selection Board in its meeting held on 11.1.1988 laid down a procedure for

conducting interviews whereunder 75 points were ear marked on the strength of percentage of marks obtained by the candidates in matriculation;

5 points were fixed for postmatric qualification and 20 points ear marked for viva voce. Copy of the minutes of the meeting whereunder such

decisions were taken also has been placed on record. It will not be out of place to mention here that for appointment of a teacher, matriculation

was the basic qualification to determine the eligibility of a candidate. This criterion admittedly has been adopted by the respondents while making

selections. I wanted to examine the whole record relating to the parties which was produced before me and I have thoroughly examined the same.

The respondents have worked out inter se merit of the parties and placed before the court breakup award of the petitioners and respondents in

OWP 186/93 titled Raj Kiran and others v. State and others. The award roll of the candidates in respect of whom my doubts were created is as

under :

Name of candidate Points obtained for merit in matric Hr. Qualification Interview Total

Raj Kiran 35.56 5 9 49.56

Yash Pal 34.59 5 11 50.59

Usha Rani 33.53 4 16 53.53

Alpna Jasrotia 27.78 5 20 53.78

When I examined the record, I found the same to be in conformity with the original select list. This record shall form a part of the file hereafter. An

examination of the record reveals that the respondents who rank below the petitioners in marks having been obtained in matriculation have secured

much higher points in viva voce. Thus total points obtained by the respondents are higher than the petitioners. By taking into account the given

breakup and by examining the record the argument that persons having inferior merit than the petitioners were selected, cannot be sustained. That

argument now cannot come to the rescue of the petitioners.

What remains for the Court thereafter to determine is as to whether the above criterion suffers from any infirmity. The Hon'ble Supreme Court in

AIR 1981 SC 487 has upheld the method of assessment of personality by way of oral interview. Interviews at present stage, according to the

findings of the apex court, could not be regarded as irrational or irrelevant though same can be subjective and based on first impression. The

principle of law laid down by Hon'ble the Supreme Court is that viva voce test is a wellrecognised method of judging the suitability of a candidate

for appointment to public service, was further dilated by the same court. No hard and fast rule fixing definite percentage for marks for the purposes

of viva voce test has so far been adopted. In Lila Dhar's case it was left for the interviewing body to take a decision as to how many marks should

be allocated to viva voce. In that case allocation of 25 per cent marks for interview were not considered to be on higher side. In Ashok Kumar

Yadav's case 33.3% marks in viva voce were held to be on higher side. In AIR 1988 SC 1451 it was held that in case any minimum marks for

viva voce are fixed to determine the suitability of a candidate, same is not bad in law. In that case 33% marks for viva voce were held not to be

excessive. In Vijay Kumar v. State, reported in 1991 KLJ the point in issue directly came for adjudication before a Division Bench of this Court.

Exactly same criterion was adopted by the State for selection of teachers and that case also incidently related to Kathua District. Their Lordships

after referring to various judgments have upheld the criterion. This authority, which is binding in nature, makes me to abstain from rowing through

the exercise of putting the critarian to a further of judicial test. I, while following the Division Bench ruling uphold the critrrion.

After answering the above two questions what remains for consideration of the Court is as to whether the selection should be vitiated on the

strength of some instances of favouritism with respect to which allegations have been made in the petitions. I have gone through these allegations.

Some mainly relate to alleged misrepresentation with regard to places of residence and categories. These allegations are not supported by any

material. Allegation with respect to Sohan Lal respondent is that he happens to be the brother of respondent No. 4. About Kewal Krishan and

Kumari Kamni respondents, it has been stated that she does not belong to handicapped category. Respondent Mansa Ram selected under

reserved category also allegedly does not belong to that category. Summan Sharma, Sheela Devi, Madhubala, Neelam Kaur and Rita Kumari

respondents allegedly do not belong to Kathua District. Selection of Teachers as a whole cannot be quashed by the Court on basis of these

allegations. At best these allegations require a probe, which falls within the province of executive powers of the State.

On the foregoing anology I do not find any question of law having been involved in the petitions. Petition No. 726/92 and 186/93 are

accordingly dismissed and S.W.P. No. 107/93 allowed. However, following directions are made :

(i) That the Vigilance Commissioner J&K will conduct an inquiry into the allegations made in the petitions with regard to appointments of some

respondents who are alleged to have manoeuvred their appointment by way of making misrepresentations. In case of truth of the allegations,

Vigilance Commissioner will proceed against the officers, responsible for lapses;

(ii) That right from Ajay Hashia's case Courts have been time and again showing their concern with respect to the possibility of misuse of marks

allocated for viva voce. Judicial perception about judgment through a vive voca test is twofold; one that the same can be influenced by many

uncertain factors and incapable of being abused; second that evaluation through a viva voce test can be made use of only in absence of any better

personality test. So far our State has not been able to replace the traditional method of viva voce tests. In the hope that the same will get

streamlined in future, at present it will suffice to direct that the State must take great care to see that persons who are appointed to conduct oral

interviews/viva voce tests are men of high integrity, calibre and qualification. I am tempted to impart this direction only on finding that S.D.M.

Basohli, Tehsildar Billawar and District Employment Officer, Kathua, are reported to have been selected as members of the interviewing

committee. It does not appeal to my judicial conscience that for adjudging personality of a postgraduate this could have been the constitution of the

committee;

(iii) After allowing SWP No. 107/93, interim direction issued in Raj Kiran and others v. State and others on 6.4.1993, is vacated and the official

respondents will be at liberty to act upon the supplementary select list;

(iv) There will be no order as to costs.

Note : After having signed the judgment, Mr. D.C. Raina has drawn my attention towards 6th line of page 1 of this judgment wherein a

typographic error has crept in. While recrifying that error in terms of Sec. 152 C.P.C. it is ordered that instead of ""26 candidates"" the words ""thirty

two candidates"" shall be read and the same be deemed to have been incorporated.

Order Accordingly.