CWP No. 14322 of 1994 & -1- CWP No.9585 of 1995 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 29.06.2010 1) CWP No. 14322 of 1994 Parshotam Lal .....Petitioner VERSUS State of Haryana and others ...Respondents 2) CWP No. 9585 of 1995 Subhash Chander .....Petitioner VERSUS State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI. Present: Mr. S.K. Sud, Advocate, for the petitioner. Mr. R.S. Kundu, Addl. A.G. Haryana, for respondents No. 1 to 3. Mr. R.K. Malik, Sr. Advocate with Ms. Renu, Advocate for respondents No.4 to 8. Mr. J.V. Yadav, Advocate, for respondents No. 9 to 10. ***** PERMOD KOHLI, J. Selection to the post of Assistant Superintendent/Probation Officer/Welfare Officer in Jail Department, Haryana is the subject matter of challenge in both these petitions almost on identical grounds. These petitions CWP No. 14322 of 1994 & -2- CWP No.9585 of 1995 are accordingly being disposed by this common judgment. Parshotam Lal-petitioner in CWP No. 14322 of 1994 was working as Warden in the Jail Department. He has acquired qualifications of Graduation and M.A. in Public Administration. He has also passed Jail Training School Examination, Haryana in the following subjects: - i) Criminology, ii) Panology iii) Psychology iv) Jail Manual v) General Knowledge vi) Physical training military drill etc. Salutes, Jud, Rifle exercise etc. vii) Chandsari. This petitioner belongs to Schedule Caste. Subordinate Services Selection Board, Haryana (in short the 'Board') invited application for the three posts of Assistant Superintendent/Probation Officer/Welfare Officer for the Jail Department in the pay scale of Rs.1640-2900 vide advertisement No.2/92 dated 07.04.1992 . The qualifications prescribed in the advertisement were as under: - “i) Degree in Arts, Science, Agriculture and Commerce from a recognized University. ii) Hindi upto Matric or its equivalent. iii) Preference to Candidates having experience or additional qualifications in Social and Correctional Works, Social Science, Penology, Psychology or Criminology, other things being equal preference to a candidate who has himself worked for the cause of National Independence or has rendered some outstanding Social or Public Service. iv) Minimum height 170 cm. (5'-7”) Chest 83.8 cm. unexpanded and 87.6 cm. expanded, minimum height 165 cm. (5'-5”) in case of CWP No. 14322 of 1994 & -3- CWP No.9585 of 1995 Dogras and Gorkhas. Age: 21-35 years. In case of Government servants who have not less than 5 years service under Government upper age limit shall be 40 years.”. The petitioner applied in response to the said advertisement under the Scheduled Caste category. The petitioner in CWP No. 9585 of 1995 namely Subhash Chander also applied in response to the aforementioned advertisement as general category candidate. It is admitted case of the parties that no written test was conducted and selection was made on the basis of the interview conducted by the Board. Petitioner-Parshotam Lal was not in the selection list or the waiting list and he challenged the selection as a whole besides claiming his own selection and appointment. Petitioner-Subhash Chander was, however, included in the list of 11 persons forwarded by the Board at Sr. No. 5 of the general category but he was not given appointment. In the above referred advertisement only three posts were advertised one each in of General, Backward Class and Scheduled Caste categories. In writ petition No. 14322 of 1994, it is alleged that no selection list was published or put on the notice board and the entire selection was kept as guarded secret. Petitioner initially did not implead the selectees/appointees as parties, however, vide amended writ petition, the selectees/appointees were impleaded as parties. Contrary to the averments made in CWP No. 14322 of 1994, in the other writ petition CWP No. 9585 of 1995, all necessary details of selection process have been given. It is stated that as many as 450 candidates were found eligible for interview, they were interviewed from 25.03.1994 to CWP No. 14322 of 1994 & -4- CWP No.9585 of 1995 31.03.1994. On completion of the process of selection, the Board recommended the names of 11 persons vide its letter dated 10.06.1994. Petitioner-Subhash Chander was at Sr. No. 5 in the merit list of candidates in general category. It is alleged by the petitioner that his testimonials were examined and he was assured appointment which fact, however, has been denied by the respondents No. 1 and 2 in their written statement. It is also admitted case of the parties that before the date of commencement of interview, more posts were added by subsequent requisition dated 16.11.1992 and three more vacancies were required to be filled up one each from General, SC and ESM category. Thus selection was to be made for total six vacancies i.e. two General category, two Scheduled Caste, one Backward Class and one ESM. The Board accordingly sent recommendation of 11 candidates vide letter dated 12.07.1994. Consequent upon the aforesaid recommendation of the Board, appointment letters were issued to the seven candidates, three from General Category, two from Backward Class, one from Scheduled Caste and one from Ex-servicemen. Parshotam Lal-petitioner has alleged that respondent No.4-Anil Kumar did not possess the requisite physical standards as prescribed in the advertisement and also did not appear in the interview. His selection is said to be for extraneous considerations. The allegations of the petitioner concerning respondent No. 4-Anil Kumar are, however, specifically disputed by the respondents in the reply. It is stated that Anil Kumar had participated in the selection process and he was found fit by the Board. It is specifically mentioned that a team of Senior Officers and Experts from the Jail Department was requisitioned to assist the Board in carrying out the physical measurements. Anil Kumar's physical standards conformed to the prescribed standards. Even his physical measurements i.e. Height 171 cm, Chest 88 cm- 93 cm (with CWP No. 14322 of 1994 & -5- CWP No.9585 of 1995 expansion) have been mentioned. Parshotam Lal-petitioner has also claimed preferencial rights of selection/appointment in view of the stipulation contained in the advertisement notice. Advertisement notice provided for preference to candidates having experience or additional qualifications in Social and Correctional Works. Social Science, Penology, Psychology or Criminology, other things being equal. It is accordingly contended on behalf of the petitioner that his preferential claim for appointment despite his additional qualifications and experience of working as Warden in the Jail for a period of 10 years has not been accorded any consideration. The allegations of the petitioner have been rebutted by Board and the State pleading that he was much lower in the merit and thus could not have been given preference as against the meritorious candidates. It is also the case of the respondents that the rule of preference can only be invoked if the merit of the candidate is equal to the last selectee. Since other candidates selected/appointed had better merit, the rule of preference could not be invoked in favour of the petitioner. The rule of preference has been interpreted by the Hon'ble Supreme Court in case of Secretary Health Deptt. of Health & F.W. and another Vs. Dr. Anita Puri and Others. The relevant observations is as under: - “Admittedly , in the advertisement which was published calling for applications from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is B.D.S. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that M.D.S. is a higher qualification than the minimum qualification required for the post and Respondent 1 was having that degree. The question then arises is whether a person holding a M.D.S. qualification is CWP No. 14322 of 1994 & -6- CWP No.9585 of 1995 entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extracurricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S. qualified person like Respondent I was entitled to be CWP No. 14322 of 1994 & -7- CWP No.9585 of 1995 selected and appointed when the Government indicated in the advertisement that higher qualification person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed.” The ground of challenge in writ petition No. 14322 of 1994 are thus not sustainable. Petitioner-Subhash Chander has claimed that he was in the select list at Sr. No.5 and thus had a right of appointment. It is further specifically pleaded that petitioner was at Sr. No. 5 of the merit list under General category and only three candidates had been appointed from the General category and thus the petitioner had no right of appointment. The mere fact that his name was forwarded by Board does not create any right upon him for appointment particularly when there was another candidate above him in the merit list in the concerned category. In view of the aforesaid circumstances there is no merit in these petitions, same are accordingly dismissed. 29.06.2010 (PERMOD KOHLI) naresh.k JUDGE NOTE: Whether to be referred to the Reporter? Yes