IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 2632 of 2008 Reserved on.: 29.6.2009 Date of Decision: 28.7.2009 Koyal Kumar …Petitioner. Versus. State of H.P and others. …Respondents. Coram: The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes. For the petitioner: Mr. Javed Khan, Advocate. For the Respondents No. 1 to 4.: Mr. R.K. Bawa, Advocate General, Mr. P.K.Sharma, Addl. Advocate General and Mr. P.M.Negi, Deputy Advocate General. Per Deepak Gupta, J. The petitioner by means of this writ petition has challenged the inquiry report submitted by the Inquiry Committee headed by the respondent No.3 Sub Divisional Magistrate, Karsog, District Mandi, whereby his selection as lecturer in Hindi on PTA basis in Government Senior Secondary School, Nanj, Tehsil Karsog, has been set-aside and respondent No.5 has been held entitled to the said post. The undisputed facts are that the Parents Teachers Association (PTA) of GSSS, Nanj, invited applications for filing up a number of posts including that of lecturer of Hindi. The 2 petitioner, respondent No.5 and three other candidates applied for the post of lecturer Hindi. The petitioner was selected and issued appointment letter on 9.10.2007. He submitted his joining report to the Principal of the said school i.e. respondent No.4 on 10.10.2007 but his joining was not accepted on the ground that the model code of conduct was in force due to the ensuing elections to the H.P. State Legislative Assembly. The petitioner challenged this order in CWP No. 1849 of 2007. This Court held that the model code of conduct has no applicability to the post in question since the petitioner had been appointed by the Parents Teachers Association and not by the Government. Thereafter, his joining report was accepted on 16.11.2007. Admittedly, the petitioner continued to function and no challenge to his selection was made for more than six months. In the mean time, a Division Bench of this Court, in which one of us (Deepak Gupta, J) was a member, decided CWP No. 1341 of 2007, titled Shailja Sood vs. State of H.P. and others, and directions were issued to the State to frame guidelines for selection of teachers by the Parents Teachers Association. In fact, this Court formulated certain guidelines and held that till the guidelines are framed by the State, the guidelines laid down by the Court would be applied. The 3 purpose of issuing those directions was to ensure that the selection is made on objective basis. This judgement was delivered on 29th October, 2007. Thereafter, the State Government issued certain guidelines which were more or less on the same lines as the directions issued by this Court in CWP No. 1341 of 2007. It would also be pertinent to mention that hundreds of appointments of PTA teachers were challenged before the erstwhile State Administrative Tribunal as well as this Court. It was held that the Tribunal had no jurisdiction to entertain such a dispute. A large number of writ petitions relating to PTA Teachers were pending before this Court. Therefore, the State decided to constitute certain Committees to look into the matter and decide the question as to whether the appointments made by the Parents Teachers Association were on the basis of merit or not. Notification constituting the committees to inquire into the cases of irregularly appointed teachers by the Parents Teachers Association was issued on 19th April, 2008. The State also formulated fresh criteria in terms of the directions of this Court on 27th May, 2008. For the first time on 20.6.2008 i.e. more than eight months after the selection of the petitioner the respondent 4 No.5 made a complaint to the respondent No.3 that merit had been overlooked by the PTA while appointing the petitioner. Notices were issued by the Committee headed by the SDM to the other side and record was perused. The Committee after perusal of the record held that merit had been ignored. The Committee itself prepared a merit cum result sheet in accordance with the directions issued by the State Government in the year 2008. The marks in the personal interview were also modified. The Committee found that respondent No.5 had obtained 35.36 marks on the basis of academic qualification as against 34.77 marks obtained by the petitioner. The interview marks were modified by the Committee without holding any interview and 3.54 marks were awarded to the respondent No.5 and 3.48 marks to the petitioner. Resultantly, the respondent No.5 was awarded 38.90 marks in all and the petitioner was awarded 38.25 marks. On this basis the appointment of the petitioner was set-aside. Learned counsel for the petitioner has urged that the Committee gravely erred in following the criteria laid down vide notification dated 27th May, 2008. He urges that since the selection in the present case took place much prior to this date this criteria was notified the same could not have 5 been followed. He also alleges that in the present case the PTA had not made the selection without following any criteria but had laid down a well thought of criteria which cannot be said to be illogical or irrational. This Court has consistently held that all appointments by the PTA should be made on objective basis and merit should not be ignored. The PTA appoints teachers who are to teach the students who are the future of the country. Therefore, we felt that the appointments of teachers should be made on totally objective basis and the most meritorious teachers only should be appointed even on PTA basis. We quashed selection(s) made by the PTA(s) which were not made on objective basis. Having held so, if the PTA has followed a rational and objective criteria the Committee cannot sit in judgement over the decision of the PTA and cannot retrospectively apply the guidelines and criteria laid down vide notification dated 27th May, 2008, especially to those posts selection wherefrom were made on the basis of interview held much prior to issuance of such notification. The notification, Annexure P-9 dated 27th May, 2008 itself talks about the committees constituted in April, 2008. It provides that all complaints should be made latest by 20th June, 2008. It lays down the parameters which the 6 Committees can inquire into. These are:- Adequate publicity not made; Interviews not held; All the eligible applicants not invited for interview; Merit ignored; and or any other issue brought to the notice of the Committee. The notification also lays down that the complaints against ignoring of the merit shall be evaluated based on the evaluation criteria in Annexure-A attached to the notification. We are of the considered view that this criteria cannot be applied retrospectively. If the PTA has followed a rational criteria this substituted criteria cannot be applied retrospectively to cases where interviews were held and selections made even before this criteria had been thought about by any person. It is a well settled principle of law that the State by executive instructions cannot take away the vested right of any person with retrospective effect. We may make it clear that we are not saying that if the PTA has not at all followed any objective criteria and has totally ignored merit, the Committee should not interfere. If, however, the PTA has followed some reasonable criteria then the fresh thought of criteria cannot be applied to set aside a valid selection. Coming to the facts of the present case, we find that the criteria laid down by the Parents Teachers Association was as follows:- 7 Academic Qualification:- 10th Class: 10% of obtained marks 10+2: 10% of obtained marks B.A.: 10% of obtained marks M.A.: 10% of obtained marks B.Ed. 10% of obtained marks Five marks were ear-marked for experience and five marks for higher qualification. This total to 60 marks. In addition thereto for interviews 10 marks were to be awarded by the subject expert, 5 marks by the PTA Secretary, 15 marks by the PTA President. The PTA also decided that 5 marks would be awarded to the person belonging to the locality and 5 marks to a person who is not in employment. Thus the total was 100 marks. Vide Annexure-A to the notification dated 27th May, 2008, the criteria laid down for School Lecturers is that 20 % are ear-marked for the marks obtained in graduation, 10 % for B.Ed, 30% marks for post graduation, 10 % for M.Phil, 20 % for Ph.D. and 10 % for interview. It is obvious that this criteria is different from the criteria laid down by the PTA. Whereas as per the PTA equal marks were given for all academic qualifications from 10th class to B.Ed, as detailed here-in-above, the State in its wisdom while issuing Annexure- A held that the marks obtained in 10th and 10+2 would be 8 totally ignored and credit was to be given only for graduation, post graduation, M.Phil and Ph.D., etc. This criteria may be a well thought of criteria but cannot have retrospective effect. The respective marks of the two contesting candidates are as follows:- 10th 10+2 BA MA B.Ed. Koyal Kumar, 65.57% 53.5% 50.9% 57.75% 63.27% (Petitioner) Smt. Savita Sharma 50.14% 55% 49.5% 61.75% 67.55% (Respondent No.5) It is apparent that the respondent No.5 has secured much more marks than the petitioner in M.A and B.Ed. However, her marks in 10th class were much lower than those of the petitioner. In 10+2 and graduation the difference between the two is not much. As mentioned here-in-above, the PTA in its criteria had allotted marks for the marks obtained in class 10 and 10+2 also. If the criteria laid down by the PTA is applied then the petitioner was bound to be appointed and he was the most meritorious candidate. By no stretch of imagination can it be said that the criteria followed by the PTA was an irrational or arbitrary formula. We find that the PTA had made appointments not only to the post of Lecturer Hindi but to 9 four other posts on PTA basis by applying this formula. The PTA also gave additional marks to local applicants. It cannot be said that this classification was irrational or arbitrary. A local teacher would be expected to take more interest and to be present in the school all the time. Similarly, awarding of marks to a person who was not in employment cannot also said to be irrational. However, even if we ignore the marks given in the interview and the marks given for being a local applicant and non-employee then also if the criteria followed by the PTA was followed the petitioner would have ranked the highest with 29.2 marks as against 28.6 marks for respondent No.5. We would like to clarify that we are not saying that the criteria now laid down by the State is not a valid criteria. However, we also cannot say that the criteria laid down by the PTA was an arbitrary or irrational criteria. The criteria now laid down cannot apply with retrospective effect. We are of the considered view that the PTA made the appointments strictly on the basis of merit as per the criteria laid down by it. The Committee could not have substituted the criteria by the formula now laid down much after the interviews were held. In the present case, it is not as if the petitioner was selected only on the basis of the interview marks granted by the PTA. Even as 10 per the marks allotted for the academic qualifications he was the highest as per the criteria laid down by the PTA. We also find that the Committee fell into a grave error in reassessing the marks of interview. Admittedly, no interviews were held by the Committee. If no interviews were held then how could the Committee reassess the marks given in the interview. It is indeed surprising that an Officer of the level of SDM has submitted a report in which the candidates have been given marks for interviews which were never actually held. We had summoned the SDM and he stated that the interview marks were assessed on the basis of the marks of the written result. This is a very abnormal procedure. It is totally illogical or irrational. Marks for interview can only be awarded only on the basis of viva- voce held. If marks for the interview have to be calculated on the basis of the criteria laid down for academic qualification there is no idea of ear-marking separate marks for interview. In view of the above discussion, we are clearly of the opinion that the report of the Committee is illegal and illogical. The criteria laid down in the notification cannot be applied with retrospective effect. We would like to make it clear that the Committees can go into the complaints filed 11 before them but they themselves must come to the conclusion on the basis of the objective analysis whether the merit has been ignored or not. The petition is accordingly allowed. The order of the Committee is set-aside and the petitioner shall be permitted to continue to function as PTA in Government Senior Secondary School, Nanj, Tehsil Karsog, Distt. Mandi, till regular appointment is made to the said school. (R.B.Misra) Judge. 28th July , 2009. (Deepak Gupta) ™ Judge.