IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1301/2009 and CWPs No. 1673,1703, 1759, 1762, 1869, 1870, 1913, 2263 and 2296/2009 Reserved on: 7.12.2009 Decided on: 7.1.2010 _______________________________________________ 1. CWP No. 1301/2009: Ashu Jethi (Phull) and anothers. …Petitioners. Versus State of Himachal Pradesh and others. … Respondents. 2. CWP No. 1673/2009: Himansu Sharma and others. …Petitioners. Versus State of Himachal Pradesh and others. ….Respondents. 3. CWP No. 1703/2009 Shelly Thakur. ….Petitioner. Versus State of Himachal Pradesh and others. …Respondents. 4. CWP No. 1759/2009: Pitamber Singh. …Petitioner. Versus State of Himachal Pradesh and others. ….Respondents. 5. CWP No. 1762/2009: Nishant and another. …Petitioners. 2 Versus State of Himachal Pradesh and others. ….Respondents. 6. CWP No. 1869/2009: Karuna Sharma. …Petitioner. Versus State of Himachal Pradesh and others. ….Respondents. 7. CWP No. 1870/2009: Veena Sharma. …Petitioner. Versus State of Himachal Pradesh and another. ….Respondents. 8. CWP No. 1913/2009: Lalit Kumar. …Petitioner. Versus State of Himachal Pradesh and another. ….Respondents. 9. CWP No. 2263/2009: Alpna. …Petitioner. Versus State of Himachal Pradesh and others. ….Respondents. 10. CWP No. 2296/2009: Nalini Sharma. …Petitioner. Versus State of Himachal Pradesh and others. ….Respondents. _________________________________________________________ Coram: 3 Hon’ble Mr. Justice R.B. Misra, Acting Chief Justice. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the petitioner (s) : Mr. Anup Rattan, Advocate in CWPs No.1301,1673,1759,1762 of 2009 Mr. B.C. Negi, Advocate in CWPs No.1703 and 2263 of 2009. Mr. Manish Gupta, Advocate in CWP No. 1869/2009 Mr. Ramakant Sharma, Advocate in CWP No. 1870/2009 Mr. Rajnish Maniktala, Advocate in CWP No. 2296/2009. For the respondents: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. P.K. Sharma, Additional Advocate General, Mr. J.K. Verma, Dy. Advocate General and Mr. Anil Jaswal, Deputy Advocate General for respondent-State in all the petitions. Mr. Shrawan Dogra, Advocate and Mr. D.K. Khanna H.P. Public Service Commission in all the petitions Mr. Ashok Sharma, Advocate, for respondents No.3 to 7 in CWP No. 1301 of 2009. Mr. Narinder Sharma, Advocate, for respondent No. 12 in CWP No. 1762 of 2009. _______________________________________________________ Rajiv Sharma, J. Since common questions of law and facts are involved in these petitions, the same were taken up together for hearing and are being disposed of by a common judgment. However, the facts of CWP No. 1301 of 2009 are being quoted herein-below to adjudicate these petitions. 1 Whether reporters of the local papers may be allowed to see the judgment? 4 Material facts necessary for the adjudication of these petitions are that an advertisement was issued by respondent No.2 whereby applications were invited for filling up the posts of Lecturers (College Cadre) on contract basis. The advisement has appeared in the daily Edition of Divya Himachal on 28.8.2008. The screening test was held on 18.12.2008. The candidates were called for viva voce on 25.2.2009. The result was declared on 28.2.2009. Petitioner No.1 secured 101 and petitioner No.2 secured 118 marks out of 150 in the screening test. M/s. Anup Rattan, B.C. Negi, Rajnish Maniktala, Manish Gupta and Mr. Ramakant Sharma appearing on behalf of the petitioners have vehemently argued that the process of selection for filling up the posts of Lecturer (College Cadre) on contract basis could not be on the basis of interview test alone. In other words, their submission is that the marks of written examination as well as interview should have been taken into consideration while determining the final merit list of the candidates. It has further been contended that the candidates who have good academic records and have secured more marks in the screening test have been left out and the candidates having less meritorious have been selected. It was further contended that the members of the Selection Committee constituted by the Himachal Pubic Service Commission (hereinafter referred to as ‘the Commission’ for brevity sake) should have given different marks under separate heads. They have shown reservation to the consensus method adopted by the interview board. They have further contended that the petitioners were not apprised that the selection will be on the basis of interview alone. 5 Mr. R.K. Sharma, learned Additional Advocate General has supported the entire selection process, which has culminated into the appointment of private respondents to the post of Lecturer (College Cadre). M/s. Shrawan Dogra and Mr. D.K. Khanna appearing on behalf of Himachal Pradesh Public Service Commission have vehemently argued that the petitioners have no locus standi to assail the selection process. In other words, their submission is that once the petitioners have appeared in the screening test and the interview test, they cannot approbate and reprobate. Mr. Dogra has further argued that the selection to the post of Lecturer (College Cadre) on contract basis has been made strictly as per the Recruitment and Promotion Rules notified on 20.9.2007 read in conjunction with Rules of Business of the Himachal Pradesh Public Service Commission, 2007. He then contended that since large number of candidates had applied for the posts in question, the Commission had decided to hold screening test and thereafter merit was drawn on the basis of interview conducted by the Commission. He further contended that the screening test/preliminary examination is permissible under the law to short-list the candidates. He further contended that candidates could be selected merely on the basis of their performance in the interview. He has lastly contended that it was not necessary for the Commission to assign marks under separate heads. He has justified the method adopted by the Commission based on consensus. We have heard the learned counsel for the parties and have gone through the pleadings carefully. 6 This Court on 29.4.2009 had also directed respondent No.2 to specifically answer the following queries: 1. “What are the marks allotted to the interview? 2. Whether the interview marks are divided under different sub heads? 3. Whether the members of the interview panel mark the candidates separately or not? 4. If the answer to query number 3 is in the negative, the Secretary to the Commission shall also explain why the each member is not awarding marks separately in the interview and what is the rationale behind the concept of “developing a consensus” during the awarding of marks in the interview? 5. The Secretary shall also clearly state as to whether the marks obtained by the candidates in the written are taken into consideration while preparing the merit list. In case the marks are not being taken into consideration, the Secretary shall explain why this is not being done because this would amount to allot 100% marks for selection to the interview which would be in violation of law laid down by the Hon’ble Apex Court?” These queries have been answered by the Commission in the following manner: 1. “Total marks allotted to the interview are 100. 2. The interview marks are not divided under different sub heads. 3. The members of the interview board do not allot the marks to the candidates separately as per the provision contained in the Rules of Business of the Commission. 4. As per provision contained in Rule 8 (vi) of the Rules of Business of the Commission (Annexure R-2/5), the 7 marks allotted to the candidate are recorded by the Chairman after taking into consideration the views of the Members of the Interview Board. 5. As stated in the foregoing para, the purpose of conducting screening test is not to assess the merit of candidates but to short list the number of candidates, where the number of candidates is fairly large in proportion to the number of vacancies. It is imperative to mention that when the number of candidates is less, the selection is made directly by conducting interviews. There may be a situation where the number of candidates are less, the Commission may decide to call such candidates directly for interview. In the instant selection process in the subjects of Geology, Computer Application and Journalism and Mass Communications there being reasonably less candidates applying for the posts advertised and they were called for interviews directly without conducting screening test in those subjects. In order to have uniformity in the selection method, the marks obtained in the screening test are not taken into consideration while preparing the merit list.” Mr. Shrawan Dogra has strenuously argued that the petitioners cannot be permitted to approbate and reprobate. His precise submission is that the candidates knew throughout that the interview is the sole criteria for filling up the posts in question. Learned counsel appearing on behalf of the petitioners have vehemently argued that the petitioners were only informed that after the screening test, they will be called for interview and they were not apprised that the marks of interview alone will determine the merit for filling up the posts of Lecturers. 8 The question raised by way of preliminary submission is no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in the following cases: In Om Prakash Shukla versus Akhilesh Kumar Shukla and others, AIR 1986 SC 1043, their Lordships have held that once the petitioner has appeared in the examination without protest, the petitioner was not held entitled to any relief. Their Lordships have held: “23. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination.” In Madan Lal and others versus State of J&K and others, (1995) 3 SCC 486, their Lordships of the Hon’ble Supreme Court have held that if a candidate takes a calculated chance and appears in the interview, then because the result of the interview is not palatable to him he cannot turn around and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. Their Lordships have held as under: “Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents herein, were all found 9 eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the concerned Members of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioners appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.” In Union of India and another versus N. Chandra Sekharan and others, (1998) 3 SCC 694, their Lordships of the Hon’ble Supreme Court have held that when the selection procedure is made known to the candidates before selection, unsuccessful 10 candidates are not entitled to challenge it afterwards. Their Lordships have held as under: “13. We have considered the rival submissions in the light of the facts presented before us. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report.” In Vijay Syal and another versus State of Punjab and others, (2003) 9 SCC 401, their Lordships have held that when candidates knowing well the criteria fixed for selection and allocation of marks appeared in interview, on being unsuccessful cannot be allowed to challenge the same criteria. Their Lordships have held as under: “12. As can be seen from the difference of marks secured by the candidates in interview, it does not appear abnormal or per se does not smell of any foul play or does not appear patently arbitrary. The lowest of the marks given in the interview are 11.5 and the highest are 22.87. Further marks secured in the interview and the marks secured in written test are also not grossly disproportionate. This apart, out of total marks of 240, only 25 marks were earmarked for interview. So 25 marks for interview out of 240 as against 200 for written test and 15 marks for qualification and other activities do not 11 admit an element of arbitrariness or give scope for use of discretion by members of the interview Committee recklessly or designedly in giving more marks to show favour in interview so as to give an advantage or march to an undeserving candidate of their over others who had shown extraordinary merit in written test. From the chart, we find among the candidates, marks secured in the written test were between 119 to 128 except in one case belonging to Scheduled Castes were 114. This apart, the marks secured in the interview are based on the assessment of the Interview Committee. Normally, it is not for the court to sit in judgment over such assessment and particularly in the absence of any mala fides or extraneous considerations attributed and established. The interview marks of 25 as against total marks of 240, cannot be taken as excessive. It comes to 10.4%. Possibly the selection would have been vitiated, if the marks for interview were 100, as against 150 marks for written test as sought to be made out. Unfortunately, for the appellants, their misrepresentation in this regard, is unfolded very clearly as already stated above. Further, the appellants, knowing the criteria fixed for selection and allocation of marks, did participate in the interview; when they are not successful, it is not open to them to turn around and attack the very criteria. The High Court in the impugned order has found that the criteria contained in Annexure R-1 filed in the writ petition was published and that such criteria was adopted earlier also in respect of other selections.” 12 In Dhanajay Malik and others versus State of Uttaranchal and others, (2008) 4 SCC 171, their Lordships have held that unsuccessful candidates posing challenge that recruitment was not done according to statutory rules are estopped from challenging the selection criteria. Their Lordships have held as under: “7. It is not disputed that the writ petitioners- respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules. 9. In the present case, as already pointed out, the writ petitioners-respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.” In a recent judgment in Amlan Jyoti Borooah versus State of Assam and others, (2009) 3 SCC 227, their Lordships have held that a candidate who has subjected himself to faulty selection, he cannot question it later on. Their Lordships have held as under: 13 23. The State in an emergent situation would subject to constitutional limitations is entitled to take a decision which subserve a greater public interest. While saying so, we are not unmindful of the fact that the Constitution also demands that candidates who had acquired eligibility for recruitment to the post in the meantime should also be given opportunities to participate in the selection process. This Court times without number had lamented the lackadaisical attitude on the part of the State to treat the matter of selection for appointment to services in a casual and cavalier manner. If no appointment could be made from 1997 to 2001, it is the State alone who could thank itself therefor, but, unless there exists a constitutional or a statutory interdict so as to compel the Superior Court to set aside the selection which has otherwise been validly made; in exercise of their power of judicial review the same would not ordinarily be interfered therewith.” Learned Counsel appearing on behalf of the petitioners have relied upon Raj Kumar and others versus Shakti Raj and others, (1997) 9 SCC 527 to rebut the preliminary submissions made by Mr. Shrawan Dogra. In this case, the selection process suffered from glaring illegality and the candidate appearing for selection and remaining unsuccessful were not barred from questioning the selection. Mr. Rajnish Maniktala has also relied upon the following judgments: (1981) 4 SCC 159, (1991) 1 SCC 662, (1992) 1 SCC 28, (2007) 9 SCC 497, (2007) 9 SCC 194 and (2003) 2 SCC 132. In these cases, the petitioners had assailed the disproportionate marks 14 allotted to the interview when the written as well as interview test was prescribed. Normally, candidates who have appeared and are unsuccessful are precluded from assailing the criteria. However, in the present case we have heard the petitioners on merits of the case since important questions of law are involved. In order to adjudicate these petitions effectively, it will be appropriate to refer to the Recruitment and Promotion Rules framed by the State under Article 309 of the Constitution of India. These Rules are called “Himachal Pradesh Higher Education Department, Lecturer (College Cadre) Class-I (Gazetted) Recruitment and Promotion Rules, 2007 (hereinafter referred to as ‘the rules’ for brevity sake). Rule 15-A prescribes the methodology for selection for appointment for the post by contract. The candidates, who are appointed on contract basis are to be engaged for one year, which may be extendable for two more years on year to year basis. The Principal Secretary/Secretary (Higher Education) is required to place the requisition with the Commission. The following selection process has been prescribed under the rules for filling up the post, which reads thus: “Selection Process: Selection for appointment to the post in the case of Contract Appointment will be made on the basis of viva-voce test or if considered necessary or expedient by a written test or practical test the standard/syllabus etc. of which will be determined by the concerned recruiting agency i.e. H.P. Public Service Commission, Shimla.” 15 In the present case, the State Government had decided to fill up the posts on contract basis. The posts were advertised. The petitioners alongwith other candidates had applied for the posts. They have appeared in the screening test and were called for interviews. Respondent No.2 has also framed the rules called “the Rules of Business of the Himachal Pradesh Public Service Commission, 2007. Chapter-III thereof lays down the procedure for filling up the posts of Class-I and Class-II by direct recruitment. Chapter-V of the rules provides for written/screening test, interviews and declaration of results. The relevant rule 8 (i), (ii), (iii), (iv), (v), (vi) and (vii) (a) and (b) are reproduced as under: “(i) WRITTEN TEST : The written competitive examinations for recruitment to the posts of H.P. Administrative Services etc., H.P. Judicial Service, H.P. Forest Service and Rangers which are required to be filled up by the Commission annually will be held on the basis of the provision of Recruitment & Promotion Rules for the respective Services. Normally more than 25 days time shall be given to the candidates so that they may prepare themselves for the examination. The notice of examination dates fixed shall be published in the newspaper and Himachal Pradesh Gazetteer before the commencement of written examination. (ii) SCREENING TEST : In cases where the number of eligible candidates for the post(s) advertised by the Commission is inordinately large, the Commission may restrict the candidates to be called for interview by subjecting all the eligible 16 candidates to a screening test. The screening test may be of two hours duration and ten minutes time may be allowed to the candidates for entering into the examination hall. The result of the screening test as far as possible be declared within one month or early depending upon the circumstances and number of candidates after the test is over. Normally 6 candidates are declared qualified for a single post and three candidates for every subsequent post. But in case of Scheduled Castes/Scheduled Tribes candidates it should depend upon the number of candidates. If the number of candidates is fewer in a particular category, all of them will be called for interview. Minimum pass marks in interview test are 45 for general category and 35 marks for reserved category. (iii) INTERVIEW: The candidates declared successful/ qualified in the written competitive examination/ screening test shall be called for interview/viva-voce test as per provision of Recruitment & Promotion Rules of the respective services and criteria fixed by the Commission. In the cases where the number of eligible candidates are below thirteen against one post advertised by the Commission shall be called direct for interview. (iv) Where selection is made through competitive examination i.e. marks obtained in written examination and interview are added in final selection, the candidates scoring more marks in the compulsory papers of the written examination will be placed above the candidates who score less marks in such papers. If in the examination all papers are compulsory then total marks obtained in all the papers shall be taken into consideration. 17 In case the marks of written examination and interview are equal then the candidate who is senior in age will be placed above the candidate junior in age. (v) Where selection is made by the interview of candidates qualified in the screening test, the candidate scoring more marks in the interview shall be placed above the candidates scoring less marks in the interview. If candidate score equal marks in interview, then the candidate securing more marks in screening test will be placed above the candidate securing less marks in the screening test. In case the marks of screening test are equal then the candidate who is senior in age will be placed above the candidate junior in age. (vi) A Member of the Commission shall ordinarily preside over the Interview Board set up for selection of candidates through either of the methods described in para-I above, and such Member shall act as the Chairman of the Interview Board, provided that, where more than one Member sit on the same Interview Board, the senior most Member shall act as Chairman of the Board, except in cases where the Chairman of the Commission himself,