IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 722 of 2004 along with connected matters. ( See-overleaf ) Judgment reserved on: 21.12.2005. Date of Decision: January 12, 2006. Ravinder Baloria …Petitioner(s). Versus. State of H.P. & Ors. …Respondent(s). Coram: The Hon’ble Mr. Justice V.K.Gupta, Chief Justice. The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? yes For the Petitioners: ( see- overleaf ) For the Respondents: ( see- overleaf ) Deepak Gupta, J. This bunch of petitions is directed against the selections made by the respondents-State for admission to Junior Basic Training ( for short: JBT) Course. The respondent No.1 Himachal Pradesh Board of School Education, issued an advertisement on 20th January 2004 inviting applications for entrance test to the JBT course. On the basis of this entrance test, 1800 successful candidates were to be granted admission in various institutions all over the State. 2 In this advertisement, the seats were distributed district-wise. The advertisement also prescribed reservations for various categories. The essential educational qualification for appearing in the test was 10 + 2 or equivalent. As per the general rules/guidelines, merit was to be prepared district- wise/ category-wise by the board and the candidates were to be interviewed by the Selection Committee(s) at the Sub Divisional Headquarters. The general rule/guideline No.5 of the advertisement provides that JBT training does not guarantee government job(s) after completion of the training. Condition No.17 of General Rules/Guidelines for JBT Entrance Test reads as under:- “17.QUESTION PAPER: There shall be one question paper having questions of multiple- choice type, carrying 75 questions of one mark each to be attempted within 30 minutes. The subjects along with the distribution of marks shall be as under: Subjects Marks. i) Hindi 20 ii) English 20 iii) Numerical Ability 20 iv) General Awareness 15 Personal interview: 15 Special marks to the candidate 10 belonging to rural areas. _________ Grand Total: 100” 3 The admission test (written examination) was conducted on 18.4.2004 in which all the petitioners appeared. The petitioners passed in the admission test and were called for interviews. It is their common contention that the interview was only a sham which lasted only for one or two minutes. The result of the entrance examination comprising of the written test and the Interview, was declared on 16.10.2004 through publication of roll numbers of selected candidates in the news papers. Immediately thereafter the present petitions were filed by the unsuccessful candidates challenging the result. The first petition was filed on 18.10.2004 and on 19.10.2004 an ad – interim order was passed restraining the respondents from giving effect to the result impugned in the petition or taking any consequential action based upon such a result. In these petitions, initially two points were canvassed before us: (i) The petitioners challenged the award of 10 marks for candidates belonging to rural areas. It was contended that the same is violative of Article 14 of the Constitution and awarding 10 marks to candidates belonging to rural areas is against Article 14 of the Constitution and, therefore, such action of the State is void and illegal; 4 (ii) The second contention was with regard to the award of 15 marks for personal interview and it was contended that the same is legally and constitutionally invalid. We had heard the writ petitions in detail and thereafter this Court had passed a detailed order on 7th January, 2005 with regard to the aforesaid two contentions. As far as the first question regarding allotting marks for candidates belonging to rural area, this Court held as follows: “In view of the law laid down by the Supreme Court in various judgments cited above which has been explained and crystallized in the judgment in Kailash Chand’s case (supra), there can be no manner of doubt that the award of 10 marks to candidates belonging to rural areas is illegal and ultra vires the provisions of Articles 14 and 15 of the Constitution and suffers from the vice of arbitrariness.” With regard to the contention regarding allotment of marks for the interview, after considering various judgments of the Supreme Court, this Court held as follows: “Taking into consideration the entire law cited before us, it is no doubt true that the Supreme Court has held that viva voce 5 test can be held to assess the suitability of the candidates. However, the question is whether such a test is necessary for admission to a course like the JBT course. A written test is being held to assess the capability of the candidate. The candidates are only to be granted admission to JBT course. No employment is being given. In the last 10 – 15 years, the trend has been, that so far as, admission to educational institutions is concerned, no marks or very few marks are allotted for interviews. For admission to course like MBBS/BDS, Law, M.A. etc., no viva voce test or interviews are held. There is hardly any justification for keeping 15% marks for interview for admission to the JBT course especially when the interviews were conducted by separate Interview Boards all over the State. Every Interview Board could have evolved its own criteria and judged the candidates in a different manner. The petitioners have not been treated equally and, prima facie, award of 15 marks for interview in the present case appears to be unjust and illegal and violative of Article 14 of the Constitution of India.” On behalf of the State it had been urged that a number of posts of JBT teachers were lying vacant and it was in the public interest that JBT course be started and completed at the earliest and therefore it was urged that no stay orders should be granted. It was also urged that the candidates who have been 6 selected were not parties in the petitions and therefore the petitions should not be heard in their absence. This Court after considering the entire law held that the selection process is illegal and directed that the respondents will not give effect to the result declared on 16.10.2004 and the following directions were passed: “Since in our view the selection process is illegal, we direct that the respondents shall not give effect to the result declared on 16.10.2004. On behalf of the State, it has been urged that a large number of posts of JBT teachers are lying vacant and it is in the public interest that the JBT course should be started and completed at the earliest. We do take note of this submission made on behalf of the State Government and wish to observe and direct that it shall be upto the State Government to grant admission in the JBT course for the ensuing session but such admission can be granted only on the basis of the merit as obtained in the written test examination and while granting such admission, the marks obtained in the interview / viva voce shall be excluded. In other words, the basis of admission shall be the merit in the written examination alone. However, such admission shall abide by the result of this writ petition. It is contended on behalf of the respondents that the selected candidates have not been made parties and, therefore, the present petitions cannot be decided in their absence. 7 The petitioners are not in a position to know the names of the selected candidates because only the roll numbers of the candidates have been published in the News papers of 16.10.2004 and immediately thereafter the petitions were filed. The result giving the names and addresses of the candidates has never been published. Even otherwise, there were 1600 candidates who have been selected and candidates like the petitioners who belong to the weaker sections of society cannot be forced to make such a large number of candidates as parties in the present writ petitions. However, we do feel that before we finally decide these petitions, the parties likely to be affected should be heard in this matter. Therefore, we direct that a public notice be issued with regard to the pendency of the writ petitions in two News papers, that is, The Daily Tribune (English), Chandigarh Edition and Amar Ujjala (Hindi), Chandigarh Edition. In this notice it should be clearly mentioned that a large number of writ petitions challenging the selection process for admission to JBT course in Himachal Pradesh especially the result declared on 16.10.2004 have been filed in this Court and have been admitted for hearing. All persons likely to be affected by the decision in the writ petitions can appear in Court in person or through their counsel and argue the matter on the date fixed for hearing. They can also file their replies within four weeks of the publication of the notice(s). The respondent No.2 Board shall bear the cost of these notices. The respondent No.2 shall also issue 8 letters along with copies of the notices to all the candidates selected by it Under Postal Certificate.” The State of Himachal Pradesh filed a SLP in the Apex Court challenging the order passed by this Court on 7th January, 2005. This Special Leave Petition was dismissed on 2.5.2005. Thereafter, a supplementary affidavit was filed on behalf of the respondent No.1-State by Sh.P.C.Dogra, Deputy Secretary (Education). In this affidavit it was stated that in the light of the order of this Court dated 7.1.2005 the State Government had decided to scrap the provision for grant of 10 marks for candidates belonging to rural areas. With regard to the marks granted for interviews the relevant averments made in the said affidavit reads as follows: “3.That in respect of the observations made and findings given by this Hon’ble Court regarding allocation of 15 marks in the personal interview, it is respectfully submitted that at present there are more than two thousand vacancies of JBT teachers and the State has a capacity of training nearly 1800 persons in the Course. Therefore, the trained JBTs are granted and assured employment/recruitment after their training is over, though the same may be made in phased manner subject to the availability of funds. To put it differently, it is submitted that no interview of the trained teachers will be 9 held before their appointments and the present interview before their selection for training is a preliminary step or a prelude to the appointment, as no further interview for the purpose of appointment after training and appointment is to be held. In view of the above submissions, it is essential and appropriate to adjudge the aptitude and suitability of each candidate for the job at this stage alone, when they are selected for JBT course. It is further submitted that if permitted by this Hon’ble Court, the State Government will conduct/hold fresh interviews at the Sub- Divisional Level. However, instead of the Sub Divisional Officer, the Government has decided to constitute a committee comprising of Deputy Commissioner as its Chairman, Deputy Director Education (Primary) of the District and Principal, District Institutes of Education and Training as its member to hold the interviews. 4.That in respect of the observations made by this Hon’ble Court that no criteria was followed/prescribed for the manner in which the interview marks were to be allocated, it is respectfully submitted that the respondent State has re-examined the matter and after careful consideration of the whole issue, has decided to allot 15 marks for personal interview on the following criteria: (i)5 marks(maximum) Conversion to 5% of total marks obtained in 10+2 examination. (ii)5 marks For extra -curricular activities(i.e. 10 cultural sports, debates & dramatics etc.) (iii)2 marks For knowledge & customs of H.P. (iv)3 marks Shall be awarded by the Committee at its own discretion keeping in view the overall personality and metal aptitude of the candidates. 5.That in view of the above submissions made by the Respondent State, it is respectfully prayed that the respondents may kindly be allowed to retain 15 marks for the viva-voce and to redraw the merit out of 90 marks instead of 75 marks as directed by this Hon’ble Court, after conducting fresh interviews on the basis of arrangement/decision taken by the Government supra, which would meet the requirement/observations made by this Hon’ble Court in this regard. 6.That in the light of foregoing submissions, it is respectfully submitted that there are about 2000 vacant/vacancies of JBT Teachers at present in the State and in case this prayer is allowed, the respondents will certainly be in a position to overcome difficulty of shortage of teachers which will give substantial relief to the students and will also promote the public interest immensely. It is, therefore, prayed that the above prayer may kindly be 11 allowed in terms of the submissions made above.” Only a supplementary affidavit was filed and no application was filed for modification of the earlier orders. The State for reasons best known to it did not disclose the fact that it had challenged the order of this Court dated 7.1.2005 before the Apex Court and the SLP filed by it had been dismissed. This Court vide order dated 27.7.2005 rejected the plea of the State Government that it should be permitted to grant admission to JBT Course on the basis of revised selection criteria. The relevant portion of the order dated 27.7.2005 reads as follows: “First and foremost there is no application by the respondents either for review, or for recall, or for modification of the order dated 7th January, 2005 passed by this court. The respondents want us to grant to them the aforesaid prayers only because these are contained in the supplementary affidavit filed by the Deputy Secretary (Education). The minimum that was expected of the respondents was to have filed a proper and formal application either for review or for recall or modification of our order dated 7.1.2005. Rather than doing that, in a casual and slipshod manner they have just filed a supplementary affidavit. Secondly, but very very unfortunately, in the supplementary affidavit filed by the respondents, there is no mention at all of the fact that the order 12 passed by this court on 7th January, 2005 was challenged by the respondents in the Supreme Court in a batch of Special Leave Petitions and their Lordships of the Supreme Court vide order dated 2nd May, 2005 have dismissed all the S.L.Ps. The following order has been passed by their Lordships on 2nd May, 2005 dismissing the entire batch of SLPs and we quote:- “We do not see any reason to interfere with the interim order passed by the High Court. The High Court is requested to dispose of the writ petitions as expeditiously as is convenient. Special Leave Petitions are dismissed.” The fact that the order passed by this court on 7th January, 2005 was challenged before the Apex Court and the Apex Court has upheld that order is a material fact, but for reasons unknown and totally unexplained, respondents very conveniently omitted to mention this material fact in the aforesaid supplementary affidavit filed on their behalf, even though the supplementary affidavit was filed a full month after the passing of the aforesaid order by the Supreme Court. We have learnt about the aforesaid order of the Supreme Court only because its copy was sent to the Registry of this court by the Registry of the Supreme Court. But for this, we surely would have been taken for a ride at the hands of the respondents. We, therefore, hold respondents guilty of concealing the aforesaid material fact from 13 us. The respondents have not come to this court with clean hands. Coming to the merits of the prayer of the respondents, notwithstanding the aforesaid two aspects, we find that this court in the judgment dated 7th January, 2005 had clearly taken a definite view that it was not legally permissible to hold interviews for admission to an elementary course like JBT and at the same time this court in public interest, even though by restraining the respondents from allocating any marks either for interview (15 marks) or for rural back ground (10 marks), had permitted the respondents to make selection for admission in the JBT course on the basis of the merit as had been obtained in the written examination. The aforesaid order of this court having been upheld by the Apex Court has assumed finality . We see no reason why we should take a different or contrary view at this stage and permit the respondents to persist with the conduct of the interview, based on 15 marks out of 90 marks for carrying out the selection. That would surely amount to setting at naught our order dated 7th January, 2005 which neither we are inclined to do nor we consider it permissible under law. We continue to be of the opinion that holding of the interview for admission to an elementary course like JBT where the prescribed academic qualification is 10+2 would bring in an element of arbitrariness, thus violating article 14 of the Constitution. The prayer of the respondents, therefore, as contained 14 in the supplementary affidavit (supra) is rejected.” The State has been urging time and again that there are a large number of vacant posts of JBT teachers and therefore there is urgent need to grant admission to candidates for the JBT course. This Court vide its order dated January 7, 2005 had permitted the State to grant admission to the candidates strictly on the basis of the marks obtained in the written test examination and while granting such admission the marks obtained in the interview/viva voce were to be excluded. It was also made clear that no benefit would be given to candidates on account of their belonging to rural areas. The State did not take advantage of this order and came up with a fresh proposal in its supplementary affidavit. The fresh proposal is a mere eye-wash. In fact by filing the supplementary affidavit the State has virtually admitted that the earlier interview process was not correct. It has also withdrawn the allotment of 10 marks to candidates belonging to rural areas. If actually there was an urgent need of appointing JBT teachers and granting the candidates admission to JBT course then what stopped the State from taking immediate steps to appoint the candidates on the basis of a written test only. It is, 15 therefore, clear that the State is not so much worried about the urgency in making the appointments but its main interest is that there should be some marks left at the discretion of the minions of the State so that they can be distributed at their sweet-will. This shows the hollowness of the stand of the State that it wants to urgently fill up the posts. Notices were issued as ordered by us on 7.1.2005. Thereafter, a number of selected candidates have filed applications to be impleaded as respondents and they have been impleased as respondents No.4 to 866. We have heard the matter finally as directed by the Supreme Court. The arguments on behalf of the petitioners were led by Ms.Jyotsna Rewal Dua and she has urged that in the facts and circumstances of the present case no marks should be kept for interview/viva voce. She has relied upon a number of judgments in this behalf. We have also heard Sh.M.S.Chandel, learned Advocate General for the State and Mr.Rajiv Sharma, learned Senior Advocate who led arguments on behalf of the freshly added respondents (selected candidates). A number of cases were cited. One of the first cases where the question regarding validity of interview/viva voce as a mode of assessing the merit of a candidate arose is R.Chitralekhs vs. State of Mysore and others, AIR 1964 Supreme Court 1823. This case related to admission to Medical & Engineering Colleges. The contention raised 16 was that the system of selection by interviews is illegal inasmuch as it enables the interviewers to act arbitrarily and to manipulate the results and, therefore, it contravenes Article 14 of the Constitution. The Apex Court noted that highly qualified educationists were appointed to the Selection Committees. Guidelines had been issued to the Selection Committees to allot marks in interview keeping in view the general knowledge, aptitude and personality, previous academic career including special distinction etc., N.C.C., A.C.C. etc. of the candidates. Taking into consideration all these factors the Court observed as follows: “12…….It is, therefore, clear that the Government by its order not only laid down a clear policy and prescribed definite criteria in the matter of giving marks at the interview but also appointed competent men to make the selection on that basis The order of the Government does not in any way contravene Art. 14 of the Constitution”. The Court further held as under: “13….We cannot, therefore, hold without better and more scientific material placed before us that selection by interview in addition to the marks obtained in the written examination is itself bad as offending Art.14 of the Constitution.” A similar question came up for consideration in Minor A Peeriakaruppan vs. State of Tamil Nadu and 17 others, 1971 (1) SCC 38. In this case the apex Court was dealing with a case relating to admissions to Medical Colleges where 75 marks out of 275 (20%) marks had been earmarked for interview. The Apex Court dealing with the contention that the marks allotted to the interview were excessive held as follows: “13. Earmarking 75 marks out of 275 marks for interview as interview marks prima facie appears to be excessive. It is not denied that the interview lasted hardly for three minutes for each candidate. In the course of three minutes interview it is hardly possible to assess the capability of a candidate. In most cases the first impression need not necessarily be the best impression……. 14.Even when the interviews are conducted by impartial and competent persons on scientific lines very many uncertain factors like the initial nervousness on the part of some candidates, the mood in which the interviewer happens to be and the odd questions that may be put to the persons interviewed may all go to affect the result of the interview…… xxxxxxxxxxxx 17.We may note that the committee had not divided the interview marks under various heads nor were the marks given on itemized basis The marks list produced before us shows that the marks were given in a lump. This is clearly illegal.” In Dr.J.P. Kulshrestha and others vs. Chancellor, Allahabad University and others, (1980) 3 SCC 418, the 18 Apex Court was dealing with a case relating to the selection of Readers by the Allahabad University. In this case while dealing with the question whether the method of interview is a proper method for selecting persons for the post of Readers, the Court observed as follows: “10….Certainly, cases arise where the art of interviewing candidates deteriorates from strategy to stratagem and undetectable manipulation of results is achieved by remote control tactics masked as viva voce tests This, if allowed, is surely a sabotage of the purity of proceedings, a subterfuge whereby legal means to reach illegal ends is achieved So it is that courts insist, as the learned Single Judge has, in this very case, suggested on recording of marks at interviews and other fair checks like guide-lines for marks and remarks about candidates and the like. If the court is skeptical, the record of the selection proceedings, including the notes regarding the interviews, may have to be made available. Interviews, as such, are not bad but polluting it to attain illegitimate ends is bad…….” In Ajay Hasia etc. vs. Khalid Mujib Sehravardi and others, AIR 1981 SC 487, a Constitution Bench of the Supreme Court while considering the question of suitability of interview for admission of candidates to the Regional Engineering College, quoted with approval the following observations from the book on 19 “Public Administration in Theory and Practice” by M.P. Sharma: “The oral test of the interview has been much criticized on the ground of its subjectivity and uncertainty