IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14680 of 2009 NUTAN KUMARI W/O SHARAD KUMAR R/O AHIYAPUR ZERO MILE, P.S.- AHIYAPUR, DISTT.- MUZAFFARPUR. VERSUS 1. 1. THE B.R.A. BIHAR UNIVERSITY MUZAFFARPUR THROUGH ITS REGISTRAR. 2. THE VICE-CHANCELLOR B.R.A. BIHAR UNIVERSITY, MUZAFFARPUR. 3. THE REGISTRAR B.R.A. BIHAR UNIVERSITY, MUZAFFARPUR. 4. THE SELECTION COMMITTEE B.R.A. BIHAR UNIVERSITY, MUZAFFARPUR. 5. RAVI SHANKAR KUMAR S/O DAYANAND PRASAD PRESENTLY POSTED AS PTI, R.D.S. COLLEGE, MUZAFFARPUR. 6. CHANDRA SINGH S/O NAND KISHORE SINGH PRESENTLY POSTED AS PTI, M.S.K.B. COLLEGE, MUZAFFARPUR. 7. SANJAY KUMAR SINGH S/O NAME NOT KNOWN TO THE PETITIONER PRESENTLY POSTED AS PTI, J.S. COLLEGE, CHANDAULI, MUZAFFARPUR. 8. MITHILESH KUMAR MANI S/O SHEO NATH PRASAD PRESENTLY POSTED AS PTI, L.N. COLLEGE, BHAGWANPUR, DISTT.- MUZAFFARPUR. WITH CWJC No.3580 of 2010 SANJAY KUMAR SINGH S/O RAMTA PRASAD SINGH R/O VILL.- HATIYA, P.S.- KARAKAT, P.O.- AMAURA, DISTT.- ROHTAS. VERSUS 1. THE CHANCELLOR BABASAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY, MUZAFFARPUR. 2. THE DEPUTY SECRETARY GOVERNOR'S SECRETARIAT, IHAR, RAJ BHAWAN, PATNA. 3. BABA SAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY, MUZAFFARPUR THROUGH ITS REGISTRAR. 4. THE VICE-CHANCELLOR BABASAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY, MUZAFFARPUR. 5. THE REGISTRAR BABASAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY, MUZAFFARPUR. 6. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY DEPARTMENT OF HUMAN RESOURCES, GOVERNMENT OF BIHAR, PATNA. WITH CWJC No.3611 of 2010 2 MITHILESH KUMAR MANI S/O SHEO NATH PRASAD R/O VILL+P.O.BASAWAN TAKHAT,P.S.BASANTPUR,DISTT-SIWAN. VERSUS 1. THE CHANCELLOR,BABASAHEB BHIM RAO AMBEDKAR BIHAR UNIVERSITY , MUZAFFARPUR. 2. THE DEPUTY SECRETARY,GOVERNOR'S SECRETARIAT BIHAR,RAJ BHAWAN,PATNA. 3. BABASAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY, MUZAFFARPUR,THROUGH ITS REGISTRAR. 4. THE VICE -CHANCELLOR BABASAHEB BHIMRAO AMBEDKAR ,BIHAR UNIVERSITY,MUZAFFARPUR. 5. THE REGISTRAR,BABASAHEB BHIMRAO AMBEDKAR null BIHAR UNIVERSITY,MUZAFFARPUR. 6. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY,DEPARTMENT OF HUMAN RESOURCES null GOVERNMENT OF BIHAR,PATNA. WITH CWJC No.3713 of 2010 RAVI SHANKAR KUMAR S/O SRI DAYANAND PRASAD R/O Q.NO. 28, NEW READERS COLONY, GANNIPUR, KHABRA ROAD, DISTRICT –MUZAFFARPUR. VERSUS 1. THE CHANCELLOR,BABASAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY MUZAFFARPUR. 2. THE DEPUTY SECRETARY GOVERNOR'S SECRETARIAT, BIHAR, RAJ BHAWAN, PATNA. 3. BABASAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY,MUZAFFARPUR THROUGH ITS REGISTRAR. 4. THE VICE - CHANCELLOR, BABASAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY, MUZAFFARPUR. 5. THE REGISTRAR BABASAHEB BHIMRAO AMBEDKAR, BIHAR UNIVERSITY, MUZAFFARPUR. 6. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY DEPARTMENT OF HUMAN RESOURCES, GOVT. OF BIHAR, PATNA. WITH CWJC No.3724 of 2010 CHANDRAMA SINGH S/O NAND KISHORE SINGH, R/O VILLAGE+P.O-PAGAHIYA, AIMA VIA- HARDI, DISTRICT- MUZAFFARPUR. VERSUS 1. THE CHANCELLOR,BABASAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY, MUZAFFARPUR. 2. THE DEPUTY SECRETARY GOVERNOR'S SECRETARIAT,BIHAR, RAJ BHAWAN, PATNA. 3. BABASAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY,MUZAFFARPUR THROUGH ITS REGISTRAR . 3 4. THE VICE- CHANCELLOR, BABASAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY, MUZAFFARPUR. 5. THE REGISTRAR BABASAHEB BHIMRAO AMBEDKAR BIHAR UNIVERSITY,MUZAFFARPUR. 6. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF HUMAN RESOURCES, GOVT. OF BIHAR, PATNA. ----------- (In C.W.J.C. No.14680 of 2009) For the Petitioner : Mr. Chakrapani & Mr. Ashim Jha. (In C.W.J.C. Nos.3580 of 2010, 3611 of 2010, 3713 of 2010 & 3724 of 2010) For the Petitioners : Mr. Ujjawal Kr. Sinha & Mr. Brajesh Kumar. For the University : Mr. Ajay Bihari Sinha. ------------ 06 10.02.2011 In all these five writ petitions the question involved is the same. It relates to the validity of the selection of Physical Training Instructors for four constituent Colleges under the B.R.A. Bihar University, Muzaffarpur. As all parties have appeared, filed their counter affidavits and reply thereto, the pleading being complete, with consent of parties, all the five writ petitions were heard for final disposal at this stage itself. On 04.11.2009 C.W.J.C. No.14680 of 2009 was filed by Nutan Kumari challenging the selection process as adopted by the University concerned and the selection of four persons as Physical Training Instructors in four constituent Colleges of the University in question. The four persons are, namely, Sanjay Kumar Singh, Mithilesh Kumar Mani, Ravi Shankar Kumar and Chandrama Singh. They have been made respondents in this writ petition and pursuant to notices issued have appeared. These four persons have individually filed writ petitions. Sanjay Kumar Singh filed C.W.J.C. No.3580 of 2010 on 25.02.2010, Mithilesh Kumar Mani filed C.W.J.C. No.3611 of 2010 on 25.02.2010, Ravi Shankar Kumar filed C.W.J.C. No.3713 of 2010 on 26.02.2010 and 4 Chandrama Singh filed C.W.J.C. No.3724 of 2010 on 26.02.2010. These four persons have challenged the order of the Chancellor of the Universities, who upon enquiry report submitted to it cancelled their selections and consequently their appointment as Physical Training Instructors as done by the University concerned. It may be noted here that though Nutan Kumari filed the writ petition making the selected candidates to the writ petition as party-respondents and also filed intervention applications in the other four writ petitions in which those petitioners did not make Nutan Kumari a party-respondent. Intervention applications are allowed. It is because of these that all the five writ petitions were taken up together to decide the validity of the action taken by the Chancellor and the validity of the selection process. Nutan Kumari, the writ petitioner in the first filed writ petition basically challenges the selection and the selection process on the ground of total lack of transparency, the details whereof will be considered at appropriate stage. She supports the later action of the Chancellor in cancelling the selection process itself based on three member enquiry report as well. On the other hand, the four remaining writ petitioners whose selection were cancelled, pursuant to the Chancellor’s order, initially in the writ petition challenged the action of the Chancellor alone but when all the five writ petitions were taken up together they joined issues with regard to the validity of the selection process and their selections as well which rendered the challenge to order of the Chancellor on technical ground of violation of principles of natural justice not 5 necessary for decision. In fairness to the counsel for the four selected candidates in their writ petitions as initially filed they had challenged the action of the University in terminating their appointment, pursuant to the order of the Chancellor, which was based on high powered enquiry report. Their only ground of attack was that they had not been heard by the Chancellor before the Chancellor ordered for cancellation of their selection and cancellation of the selection process, but in view of the challenge to the selection process as made by Nutan Kumari long prior to the order of the Chancellor before this Court, that issue losses significance and what become significant is the validity of the selection process and the selection. It appears that on 13.07.2008 an advertisement was issued by the B.R.A. Bihar University, Muzaffarpur, inter alia, for appointment of Physical Training Instructors in four of its constituent Colleges, one in each College, namely, R.D.S. College, Muzaffarpur, M.S.K.B. College, Muzaffarpur, L.N. College, Bhagwanpur and J.S. College, Chandauli. The advertisement is Annexure-1 to the first writ petition. In the advertisement, there are only three conditions specified. Firstly, each candidate is required to apply for the post of Physical Training Instructor separately for each College. Secondly, candidates possessing Bachelor degree in Physical Education or Graduate with Diploma in Physical Education from a recognized institution may apply for the post. Lastly, age limit for all above posts were as per Government Rule/order. It is pursuant to the aforesaid advertisement that all the five writ petitioners 6 apart from others applied for all the four Colleges. It is not in dispute that all five writ petitioners upon scrutiny of their applications were found eligible and were called for interview. It appears that for the purposes of interview and selection the University constituted a five man committee by office order dated 27.10.2008. It consisted of the Head of the Department of Economics of the University as the Chairman, Registrar of the University as Member Secretary, Principal of Dr. R.M.L.N.S. College, Professor Incharge (Retired) of Rameshwar College as two other members and Secretary, Sports Council of the University as the fifth member. On 06.11.2008 the said Committee met and interviewed the applicants four times each candidate in respect of the four Colleges concerned. They prepared merit list of candidates, which is Annexure-6 series to the first writ petition. At this stage, I may notice one thing that stands out in the tabulation of the merit list. As noted above, all the five writ petitioners were interviewed for all the four Colleges by the same Committee of five persons allegedly four times on the same day. All other marks with regard to academic qualifications and marks for higher qualifications and experience were the same in all the four charts but the marks given in interview (viva) varied drastically. For example, petitioner, Nutan Kumari in one interview was awarded 24 marks out of 30 in another 16 out of 30 in the third 12 out of 30 and in the 4th 20 out of 30. Such erratic variation is there in all the four merit list where someone scores less in one and more in another. University is not able to give any justification 7 for these markings. Details of other markings will be discussed at appropriate stage. Upon tabulation of results on 14th February, 2009 University issued appointment letters in favour of the four writ petitioners leaving aside Nutan Kumari. Apparently, the four selected petitioners gave their joining immediately in February, 2009 itself. Thereafter, pursuant to the orders of the Vice-Chancellors, by office order dated 13.05.2009, the Registrar of the University fixed their pay scale at Rs.5000-150-8000. It appears that soon thereafter the Chancellor of Universities of Bihar received complaints and on 18.06.2009 the Chancellor appointed a three man committee to enquire into the selection process and selection of Physical Training Instructors as made by the University concerned. Petitioner, Nutan Kumari had also protested to the Chancellor regards the University and upon the enquiry committee set up had filed protest there also. Apart from others her (Nutan Kumari) objection was that one of the Colleges concerned was Mahila Shilp Kala Bhawan (M.S.K.B.) College, Muzaffarpur, which was exclusively Girls College, but instead of she being selected as Physical Training Instructor, she was ignored and petitioner, Chandrama Singh was selected. The report of the enquiry committee dated 07.10.2009, as submitted to the Chancellor of the University, is to be found in the counter affidavits of the University in the writ petitions filed by the selected candidates. The Committee recommended the cancellation of the appointments and action against the Vice-Chancellor and the Registrar of the University as they appeared to be involved in appointment fixing game. It is pursuant to this enquiry 8 report as submitted to the Chancellor, the Chancellor upon consideration thereof was pleased to cancel the appointments and directed the University to take necessary action by its communication dated 05.01.2010. The University thereafter issued letter dated 15.02.2010 to the four selected writ petitioners and asked them to show cause. Those selected petitioners asked for papers to file their show cause but before all of it could be supplied they filed the four writ petitions challenging the action of the Chancellor. Thus seen, Nutan Kumari with whom the four selected writ petitioners have joined issues has brought to the four front the core question about validity of the selection process and the selection itself. Basically, the challenge to the selection process is as follows. A reference to the advertisement would show that nothing was disclosed therein with regard to the manner and the process of selection or the criteria thereof. Now, it is not in dispute that there was no criteria at all fixed. The criterion were evolved by the selection committee. Five men selection committee on the date of interview fixed the criteria which were neither disclosed prior or at the time of interview. It was only made known after appointment letters were issued. Thus, there was total lack of transparency. It is then submitted that once after selection and appointments the criterion were disclosed it showed hostile discrimination and arbitrariness. First out of total 100 marks 60 marks were for academic qualifications, being 10 marks for Matriculation, 10 marks for Intermediate and 40 marks for Graduation. So far as Matriculation and Intermediate are concerned, the marks are not put in issue but so far as 9 Graduation is concerned, the marking has been put to issue. The selected candidates and the University explained the same as follows. There are three types of physical education qualification. The first is a three year physical education course after Intermediate resulting in degree of B.P.E. The second is a three year Graduation course in any subject after Intermediate plus one year physical education course conducted by University leading to B.P.Ed. degree and the third is three year Graduation course in any subject after Intermediate and one year physical education diploma course conducted by School Examination Board leading to D.P.Ed. The selection committee on the date of interview evolved marking system for Graduation level which as noted above was as follows. For candidates with B.P.E. and B.P.Ed. their marks scored in B.P.E. and B.P.Ed. were only taken and in a graded manner. If they had scored more than 75% they were awarded 40 out of 40, if they scored 60-75% they were awarded 30 out of 40, if they had scored 45-60% they were awarded 25 out of 40 and if they had scored below 45% they were awarded 20 out of 40 but when it came to D.P.Ed. their marks scored were calculated differently. Their marks out of 40 for Graduation was split into two of 20 marks each, 20 marks for their three years Graduation course and only 20 marks maximum for their physical education course. The result was that though petitioner, Nutan Kumari had 83.6% in D.P.Ed., she was awarded only 20 marks, whereas others who had scored lesser marks in physical education but had B.P.E. or B.P.Ed. were given higher marks on that basis ignoring their Graduation or other marks. For 10 example, Ravi Shankar Kumar who had got 80% was given 40 marks, Mithilesh Kumar Mani who had scored 72.6% was given 30 marks, Chandrama Singh who had scored 55% was given 25 marks and Sanjay Kumar Singh scored 57% was given 25 marks. Then the challenge is to the marks on higher qualification and experience. It is submitted that the two are different criterion but the total marks combined has been fixed at 10 not disclosing any bifurcation or any criteria. Then is the marks for viva (interview), which is 30% of the total marks, as noted in the very beginning, the same set of five members on the same day interviewed the selected candidates four times, one time each for each College and gave drastically different marks. First, in this regard it is submitted that this shows the erratic irrational marking on subjective satisfaction, which interview marks being as high as 30% is irrational, especially, when it is showed that the difference between selection and non-selection was barely a few marks. It is then submitted that the selection committee, which constituted of five persons, had no expert at all in physical education. There was only one person who was Secretary of the Sports Council of the University and his only qualification was that he had played one Ranji Trophy Cricket match and the rest were all pure academicians. It was then submitted that though one of the College was exclusively Girls College, namely, M.S.K.B. College, Muzaffarpur and petitioner, Nutan Kumari was a girl candidate for the post of Physical Instructor and otherwise fully qualified, she was not considered and male 11 Physical Instructor for physical education in exclusively Girls College was appointed. Lastly, it was submitted that the advertisement was totally vague with regard to the maximum age criteria. It only said that the same would be fixed as per Government Rules/Notifications. It has been shown that there is no consistent practice in the Government. In some cases, the first day of the year in which advertisement is issued is taken to be the date. In some cases, the date of advertisement is taken to be the relevant date. This is significant because petitioner, Chandrama Singh is alleged to be over age but because of this flexibility he was selected. In short, it is submitted that the entire process was decided not before but after all applications had been received it was so done to favour few as is the finding of the enquiry committee appointed by the Chancellor as well. In defence, University has submitted that D.P.Ed. is a Diploma course though it is a one year course after Graduation same as B.P.Ed., which is a one year course after Graduation, but one is conducted by the School Examination Board and the other by the University. They have to be treated differently. With regard to the manner in which interview was conducted, it was submitted that as applications were to be filled up individually for different Colleges, the interviews were repeated and it could not be said to be arbitrary or irrational in any manner. As to the high marks allotted for interview, it was submitted that interview marks based on subjective satisfaction even though was 30% it was neither excessive nor arbitrary. With regard to higher qualifications and 12 experience, it was said that the five members committee was an expert committee who judged the same properly. The private-respondents in the first writ petition, who are independent petitioners, as well, being the selected candidates whose selection had been cancelled, while adopting these arguments, it is further submitted that once the petitioner, Nutan Kumari participated in the selection process it was not open for her to subsequently turn around and challenge the same after appointments were made. She took a calculated chance and having failed cannot challenge the same. So far as the differentiation between D.P.Ed., B.P.Ed. & B.P.E., it is submitted that the later two are degree courses and the former is Diploma. They are different class of qualifications and there is nothing wrong in treating them separately. As to the question of higher qualification and experience being clubbed together, it is submitted that even though they are different concepts, there is nothing wrong to assess them combined but unfortunately neither the University nor the respondents were able to place on record any definite discernible criteria for this marking. They further admit that so far as age is concerned, in absence of Rules of University, the cut off date of age was taken 1st January of the year as is normally done by the Central Government because the State Government has no uniform practice or Rules in this regard. Lastly, it was submitted that even if there were defective criterion and it was applied uniformly and no prejudice can be said to have been caused to individual. Having considered the rival submissions, in my view, the hostile discrimination and arbitrariness is writ large on the face of the 13 records. No one with any amount of reasonable certainty knew the selection procedure or the process. It stands undisputed that the criterion were laid down only on the date of interview even then it was not made known to people. This is a clear cut case of bad and wrong administrative action. There is absolutely no transparency and such process cannot be sanctified by the Court. On top of it to say that petitioner, Nutan Kumari had participated in the selection process and, as such, could not challenge it after appointments were made, would be travesty of justice. Anyone could have challenged the criteria if they were disclosed in the advertisement or before the interview or before the selection but all that was kept secret. That came to be known much later after appointments were made. That cannot estop Nutan Kumari from challenging what she did not know and what was never made public. This objection by the University and the other petitioners cannot be sustained. In my view, the law is settled. If a person participates in selection process with his eyes open knowing the selection process then upon failure to get selected he cannot turn around and challenge the same. He would be deemed to have acquiescence to the same. That is not at all the case in the present as noted above. Nutan Kumari challenged the process even before the enquiry committee gave its report. The challenge cannot be said to be belated in any aspect of the matter. The criterion were not disclosed. It is only after the criterion were disclosed to some extent can it be said that a person was in a position to challenge. If that is kept in mind it would be seen that there was no unreasonable delay in the challenge at all. Moreover, the extent of arbitrariness in the selection process, as would be 14 noticed, fully justifies in setting aside the selection process and the selection itself. Now, coming to the markings in respect of Graduation. As noted above, there are three types of physical education courses. One a three year course after Intermediate and the other two being one year courses after three years Graduation in any subject. It matters little whether it is a one year Diploma course or one year degree course because under statute University alone can grant degree, the School Examination Board cannot and that is the only reason for this distinction. If classification had to be made, subject to it being reasonable, it could be between the three years physical education course and the one year physical education course but the moot point to be noted here is that in the advertisement all are treated similarly for eligibility with no preference or distinctions. If the advertisement itself did not provide for any differentiation or different treatment then at the time of evaluation no new criteria could be laid down. The effect is evident from the marks sheet of petitioner, Nutan Kumari. She got 83.6% marks in D.P.Ed and in three years Graduation course she had got 48.8%. Thus, totally she was given 32 marks being 20 plus 12 respectively out of 40 marks. Ravi Shankar Kumar had 80% either in B.P.E. or B.P.Ed. he was given 40 marks out of 40. There are various instances, as noted earlier, to show the arbitrary results of this arbitrary criteria, which criteria, as noted above, was decided at the time of interview. When all applications had been scrutinized the assertion that these criterion were evolved to promote certain candidates cannot, thus, be said to be unfounded. 15 Again, when we come to marks of higher qualifications and experience, no one has disclosed as to what was the criteria of awarding marks under this head. Again, it is left to the whims of the selection committee which cannot be countenanced. Again, we come to the case of marks for interview, the things are worst. The same set of five people on the same day interviewed all the five petitioners four times for the same job and in each interview the marks drastically varied. These are subjective evaluation based on subjective satisfaction it is these marks which have made substantial difference, as noted above, the margin being very small. Apart from this, to this Court it appears that subjective marks cannot be, in the nature of appointment, as high as 30%. These two things coupled together make the process quite arbitrary and discriminatory. Thus, the process as a whole as adopted cannot be said to be valid in law. The process must thus be struck down and is struck down. Consequently, it is held that the selection was bad. With regard to two remaining aspects that is the five member selection committee being an expert body the less said the better. I have noted in the beginning of the judgment itself that four of the persons had absolutely no qualification or knowledge about physical training education. The fifth member, that is, the Secretary of the Sports Council of the University himself had no such qualification except being member of some cricketing club and having once