CWP No.9142 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 6.4.2010 Anil Kumar ...Petitioner VERSUS District & Sessions Judge, Rohtak at …Respondents Rohtak CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Rajbir Sehrawat, Advocate for the petitioner Mr.RS Kundu, Addl.A.G., Haryana Mr.Gaurav Jindal, Advocate for respondents no.2 to 4 Permod Kohli, J. (Oral) Selection of private respondents for the posts of Process Servers and Peons in the Office of District and Sessions Judge, Rohtak has been called in question in the present writ petition. The manner and method adopted for selection is itself sufficient to quash the selection. I am at pains to say that the selection has been made in a total illegal and arbitrary manner, without adopting any fair, transparent, rational and established method of selection, CWP No.9142 of 2007 2 and that too by a Senior Judicial Officer of the rank of District and Sessions Judge. It is necessary to briefly notice the pleadings of the parties. Vide advertisement notice dated 16.2.2007, applications were invited for the 14 posts of Process Servers, 25 posts of Peons and one post of Sweeper for General and Reserved Categories. The break up of the category wise vacancies is not being adverted to, the same being not relevant for the purpose of present petition. The minimum qualification prescribed for the post of Process Servers i.e. Category A was “Matriculation with knowledge of Hindi and Punjabi”, for the post of Peons i.e. Category B was “Middle Class with knowledge of Hindi and Punjabi” and for the post of Sweepers i.e. Category C was “Middle Class” It is pertinent to note that one of the stipulations in the advertisement notice was as under:- “Experienced hands and persons having knowledge of office routine work will be given preference.” The notice itself specifies the dates of interview in the following manner:- “Candidates whose names start with letters A to J on 2.4.2007 Candidates whose names start with letters K to P on 3.4.2007 Rest of the candidates on 4.4.2007” This clearly specifies that the selection was to be made on the basis of interview. The specific ground to challenge the selection in the present petition is that during the process of selection, the candidates were simply asked to CWP No.9142 of 2007 3 mark their attendance and go way. No question whatsoever was asked to them. It is further alleged that the select list was not notified in any newspapers or by public notice. Further averment is that thousands of candidates were called for interview, but none of them were actually and factually interviewed which was otherwise humanly impossible to do. The petitioner made an application under RTI Act seeking information regarding the number of applications received, list of applicants, copies of application forms and documents regarding educational qualifications, experience certificates etc., the number of candidates who appeared for interview on 2.4.2007 to 9.4.2007 and whether any criteria was adopted for short-listing of candidates and disclosure of the same, names of the members of the Selection Committee, total marks of interview and category-wise selection as also the number of candidates who have secured more marks than the petitioner. This information was, however, declined by the Office of District & Sessions Judge, Rohtak on the ground that rules regarding entertainment of application have not been framed. Written statement has been filed on behalf of the District and Sessions Judge, Rohtak and a separate written statement on behalf of the private respondents. In both the written statements, there is a common defence that earlier CWP No.5585 of 2007 challenging the same selection had been dismissed vide judgment dated 14.5.2007 by a Division Bench of this Court. Copy of this judgment is also on record. Based upon the aforesaid judgment and dismissal of earlier writ petition challenging the selection in CWP No.9142 of 2007 4 question, it is vehemently argued on behalf of the private and official respondents that the present writ petition is necessarily to be dismissed, without going into the merits of the controversy raised. It is under these circumstances, I am inclined to firstly deal with this issue. Some of the non-selectees challenged the selection in question as against 15 respondents including 14 private respondents who are also respondents no.2 to 15 in the present writ petition. All these respondents have been selected against the posts of Process Servers. Respondents no.16 to 40 in this writ petition were not parties in the earlier writ petition. These private respondents have been selected as Peons. In the earlier writ petition, the challenge was two fold:- (1)That the petitioner is better qualified than the selectees i.e. private respondents no.2 to 15; and (2)That knowledge of Hindi and Punjabi being an essential qualification in the advertisement, the selectees (respondents in the said writ petition) being not possessed of the requisite qualification are ineligible. The said writ petition had been dismissed by a Division Bench of this Court vide its judgment dated 14.5.2007 with the following observations:- “9.We do not find any merit in the contention of the learned counsel for the petitioner because the advertisement nowhere depicts that for the post of Process Server, a person who is a matriculate should also have passed an examination in Hindi and Punjabi. Candidate can be considered for the CWP No.9142 of 2007 5 post of Process Server provided he has the knowledge of Hindi and Punjabi. 8.The candidates were only required to possess the knowledge of Hindi and Punjabi which cannot be taken that the candidates must have Hindi and Punjabi as subjects in the matriculation examination. 9.The petitioner has not placed on record any document to substantiate that respondent nos.2-15 did not have the knowledge of Hindi and Punjabi.” Apart from above, the Hon'ble Division Bench of this Court also dismissed the writ petition holding that the petitioner having participated in the process of selection cannot challenge the selection process. From the perusal of the judgment of Hon'ble Division Bench, it is evident that the selection of the private respondents therein was primarily challenged on account of their ineligibility of not possessing the requisite qualification of knowledge of Hindi and Punjabi. Hon'ble Division Bench dismissed the writ petition holding that only knowledge of Hindi and Punjabi was required and it was not a condition of the advertisement that person should have passed the matriculation examination with elective subjects of Hindi and Punjabi. Hon'ble Division Bench further declined to interfere, the petitioner having participated in the selection process. Respondents in the present petition also pressed into service both the grounds for dismissal of the present petition. Keeping in view the set of CWP No.9142 of 2007 6 allegations in the present petition and the reply filed, I am unable to accept the contention of the respondents for dismissal of the present writ petition on the aforesaid two grounds. I proceed to decide the controversy on its own merits for the reasons to be noticed here-in-after. The challenge in the earlier writ petition was confined to the eligibility of the private respondents only. On failure of the petitioner therein to convince the court about the ineligibility of the private respondents, the said writ petition has been dismissed. However, while dismissing the writ petition, the Hon'ble Division Bench also made observations regarding the right/locus of the writ petitioner to challenge the selection after having participated in the selection process. Apart from these two grounds, there was no other basis for challenge. To the contrary in the present petition, specific averments have been made regarding the mode and method of selection as are contained in paragraphs 5 and 9 of the writ petition. Surprisingly, rather shockingly the reply filed on behalf of the District and Sessions Judge, Rohtak reveals a strange and new kind of procedure adopted during selection. At the first place, the reply is filed on behalf of the District and Sessions Judge, Rohtak in the form of an affidavit, but whose affidavit is this, is not disclosed at all. Name of the deponent is not mentioned. It is stated on behalf of District and Sessions Judge-respondent no.1 that as against 14 posts of process servers and 25 posts of peons, thousand times applications were received and it was humanly impossible to hold interview of all the candidates and it was decided to adopt the short-listing criteria five times the total number of CWP No.9142 of 2007 7 vacancies. A Committee of three Judicial Officers was deputed to mark the attendance and to give a cursory look at all the candidates and short-list the candidates for interview to find their suitability. It is further mentioned that the criteria adopted for making a short-list out of the total applicants was duly notified and displayed on the notice board. Further statement is made that all the candidates were informed that after a cursory observation about their over all personality and sensitivity towards cleanliness, a short list shall be prepared. From the reply of the District & Sessions Judge, it thus becomes clear and rather established that short-listing five times number of vacancies was made just by asking the candidates to mark their attendance and a cursory look at the face and personality of the candidates. Perhaps this is the strangest kind of method which has come to be adopted in the service jurisprudence so far for short-listing of the candidates and that too by a Senior Judicial Officer of the rank of District and Sessions Judge. By no yardstick or parameter, the procedure and method adopted can be said to be justified what to say of same being legally permissible in law. There cannot be more arbitrariness than adopted for short-listing of the candidates for selection. Even chattels cannot be selected by this method where the human beings have been short-listed by just looking at their faces. The entire selection process is totally farce and sham. It has been contended on behalf of the respondents that the petitioner having participated in the selection is not entitled to maintain this writ petition and is estopped from challenging the selection. This contention may hold good where the criteria for selection was appropriately and CWP No.9142 of 2007 8 properly notified and would be known to the participants, but will not be of any help in the present case where the criteria was not only kept back, but per se is illegal, invalid and demonstrates even lack of basic knowledge of the selectors. Rule of “estoppel” is not a device to unsuite a litigant merely on technicalities. The rule of “estoppel” is intended to be applied to unscrupulous litigants who attempt to take benefit in all situations, firstly by participating without any reservation and then after having failed, make a challenge. In the present case, it was only by participating in the selection that a candidate would know the method adopted for selection and not by keeping himself away from the process of selection. The petitioner could not have known the method of selection, unless he would have participated and actually observed the means adopted for making selection. I, therefore, reject the ground urged by the respondents to non-suite the petitioner for having participated in the selection, in view of the peculiar facts of this case. A similar question came up for consideration before Hon'ble Supreme Court in the case of Rajesh Kumar Gupta and others vs. State of U.P. And others, (2005) 5 SCC 172. In the aforesaid case, the State Government initially notified a criteria for making the selection district-wise which criteria was later changed for making selection state-wise and after applications were received, the criteria was again changed for making selection district-wise. The right/locus of the unsuccessful candidates who challenged the selection was objected to on the ground of their participation by invoking rule of estoppel. Considering this aspect, Hon'ble Supreme Court noticed as under:- CWP No.9142 of 2007 9 “13.The Division Bench also found that at the time of making the application the scheme notified by the State Government was that the preparation of the merit list would be at the State level and not at the district level. The criterion for merit list was subsequently challanged only on 31.10.2001 i.e. after the applications had been made by the candidates. Consequently, no candidate had any occasion to protest, since the criterion was abruptly changed by the State Government. Thus, the Division Bench overruled theobjection to the maintainability of the writ petitions by taking the view that there was no question of estoppel and the candidates, who had applied and were not selected could not be said to be estopped from challenging the process of selection. Nor could there be any plea of promissory estoppel invoked by the writ petitioners, as nothing was established to show that they had altered their position to their detriment by applying pursuant to the advertisement. In our view, the finding of the Division Bench on this point is justified.” In the present case, the respondents adopted the criteria of short- listing after having received applications and finding that large number of candidates applied. The petitioner could not have known the criteria before appearing in the selection process. Otherwise also, he could have observed the validity of criteria only by participation and not otherwise. In such a scenario, rule of estoppel cannot be applied to non-suite the petitioner. It is also pertinent to mention that in the earlier writ petition, neither there was any set of allegations in the writ petition nor the challenge was against the mode and method of selection. Therefore, the general observations made by the Hon'ble Division Bench will have no bearing in the present case. The same can conveniently be termed as “per incurium” Now coming to the merits of the controversy, Articles 14 and 16 of the Constitution of India provide for fair and non-arbitrary procedure and method of selection. No legal, rational, transparent and recognized mode of CWP No.9142 of 2007 10 selection known to the service jurisprudence has been adopted. The short- listing of the candidates has been made by merely looking at the face of the candidate and even without asking even a single question to him. Such a mode is totally illegal and unheard of and is itself sufficient to set aside the selection. The petitioner has been excluded from the process of selection at the short-listing stage itself. Even if the short-listed candidates were interviewed, the selection cannot be said to be legal and valid. This petition is accordingly allowed. Selection of private respondents is hereby set aside. Consequently, the District and Sessions Judge, Rohtak is directed to hold fresh selection amongst the candidates who had applied pursuant to the advertisement dated 16.2.2007 by adopting a fair, rational and transparent mode of selection to be notified before the selection process is set in motion. If the learned District and Sessions Judge is of the opinion that short-listing is to be resorted to on account of large number of applications, he may adopt a reasonable and valid short-listing criteria to be notified by a public notice in a newspaper having circulation in the concerned area before the appropriate selection is made. Learned District and Sessions Judge will also ensure that no officer earlier associated with the selection shall be made part of selection team, if still posted in the district. The manner adopted for short-listing and selection does indicate not only impropriety, but also some considerations in selecting the candidates. I am of the considered view that matter needs an enquiry/investigation into the conduct of the then District & Sessions Judge as also the Officers CWP No.9142 of 2007 11 involved in the selection. The matter be placed before Hon'ble the Chief Justice for appropriate directions on the administrative side in this regard. (PERMOD KOHLI) JUDGE 6 .4.2010 MFK NOTE:Whether to be referred to Reporter: Yes