1 494 1 CWP No18735 of 2009 1 4 e e IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP N18735 of 2009 DATE OF DECISION August 232011 DrSunil Kumar and others Petitioners versus m 0 Punjabi University and others eeeeRespondents 0 0 CORAM HONBLE MRS JUSTICE DAYA CHAUDHARY C5 Present MrAman Bahri Advocate for the petitioners Mr Deepak sibal Advocate for the respondentniversity Mr KG Chaudhary Advocate for respondent Z Nos2 and 4 2 t DAYA CHAUDHARYJ I This petltlOll under Article 226 of Z Constitution of India has been filed for quashing of m appointment of respondent Nos2 and 3 on the posts of 7 Lecturers lIl physics which has been made in Z violation of the University Rules and Regulations and r merit of the petitioners has been ignored and also for direction to the respondent University to disclose the crlterla adopted at the time of lntezview and also for direction to hold fresh lntervlew for filling up two posts of Lecturers in Physics by fresh selection by following the crlterla adopted at the time of preparation of the short listing Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 1 495 CWP No18735of 2009 SC Learned counsel for the petitioners submits that after shortlisting the candidateSl the selection has been made only on the basis of interview whereas there was no criteria and even the grading with regard to assessment of comparative 1 merlt was not done The respective merit of the candidates who appeared before the Interview m Committee has been ignored Learned counsel for the C petitioners further submits that the petitioners are 0 0 more meritorious and qualified with adequate C experience and were thus fully eligible for being selected as Lecturers Petitioner No1 is PhD Z having 12 years of teaching eperience and has also published 105 research publications out of which 41 0 are International Journals He has also undertaken I 3 many prooects lIl the field of physics and has been as Z a Research Guide for PhD and M Phill students Respondent Nos 2 and 3 are only MSc and NET mwo Z qualified In addition to that Respondent No 3 has tl only three research publications and has no teaching experlence Learned counsel further submits that total 52 candidates applied for the posts of Lecturers e For one post in open category as many as 26 candidates were called and for one post for a specialist ln Theoretical Solid State Physics only two candidates C were called for interview The Selection Committee Il 1 Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 496 CWP No18735 of 2009 t ignored 13 candidates out of 29 candidates who were PhD degree holder like petitioner Nos12 and 4 1 Petitioner No3 was not even called for interview inspite of having higher merit than the selected candidates Learned counsel also submits that respondent No3 is non PhD candidate and he has been selected as Theoretical Solid State Physics for which 1 0 degree of PhD is necessary and he was at SrNo 8 in 0 the merit list and was lower than the petitioner 0 The interview was totally an eye wash Even nothing t5 has been conveyed as to at which number of the I selection list the petitioners figured Even no Z waiting list has been prepared so that in case of non r joining of any selected candidate the next can be considered Learned counsel for the petitioners I relies upon judgments in Krishan Yadav and another ve Z State of Haryana and others AIR 1994 SC 2166111 Sham m Lal v Union of India and others AIR 1995 Punjab and 7 Z Haryana 147 and Haryana Public Service commissionr Chandiqarh ve State Information comnission and Anre AIR 2009 Punjab and Haryana 140 Learned counsel for the University argues that the petitioners cannot challenge the process when they are party of that The selection was totally as per merit and keeping ln vlew the large ner of candidates shortlisting was done ancl only because of that reason the petitioners were reached Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 497 CWP No18735 of 2009 4 4 dP1 1 t to the stage of appearing before the Interview Committee The selection was made on the basis of 3 performance before the Selection Committee and respondent Nos2 and 3 fared exceptionally well in the interview and were selected on the basis of their perfonnance before the Interview Committee Learned counsel for respondentniversity further submits 1 that University syndicate has approved the guidelines C2 for shortlisting the candidates for the post of 0 0 LecturerSe Learned counsel for the respondent I University relies the judgment of DreAshwani mmer 9 Dalal ve Central Administrative Tribunal Chandiqarh Z Bench Chandiqarh and others 1010141 SCT 753 Dalpat Abasaheb solunke etce etce ve DreBeSeMahaoan etCe l etce AIR 1990 SC 434 Om Pmkash Shukla ve ilesh I t Kumar Shukla and others AIR 1986 SC 1043 Union of Z India and others v SeVinodh Kumar and others 12007 CQ 8 Supreme Court Cases 100 C2iandra Prakash Tiwari and 7 others ve Shanltala Shukla and others 20021 6 SCC Z 127 and KeHeSiraj Ve Hiqh Court of Kerala and others Om 120061 6 Supreme Court Cases 3950 Heard the arguments of learned counsel for the parties and have also perused the interview order as well as other documents available on the file There is no dispute with regard to selection only on the basis of interview Although much debate has taken place on the issue of validity of interview Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 1 498 1 CWP No18735 of 2009 5 when the selection is sole basis of interview but effectiveness depends upon exerclse of discretion Safeguards are there which required to be adopted to check arbitrariness and also to ensure transparency In absence of such transparency and objectivity the crlterla of assessing the suitable candidates on the basis of an interview only there is always a 1 1 criticism in case the interview is conducted in an 0 1bjective manner either on the basis of allotment of 0 markslgrades gradingl and the outcome of that I t5 assessment is away from any suspicion on the basis of respective merit of the candidates appearing before Z the interview In ReOlitralekha ve State of Mysore and others AIR 1964 SC 1823 it was observed that if r there is dishonesty ln allotting marks to a candidate C1 ln intervleW there could be a same flaw in Z awarding marks 10 written examlnatlon The f obseations of the Court in the said judgment are l7 Z as under Om In the ultimate analysis whatever method 1S adopted its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty This criticism is mere a reflection on the examlners than on the system itself The scheme of selection however 1 Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 1 499 CWP No18735 of 2009 6 perfect it may be on paper may be abused ln practice That it is capable of abuse 1 1S not a ground for quashing it So long as the order lays down relevant objective criterla and entrusts the business of selection to qualified persons this Court cannot obviously have any say 112 the r matter In this case the criteria laid 0 down by the Government are certainly 0 0 relevant in the matter of awarding marks I C5 at the interview Learned counsel contends I that the ability of a student on the basis Z of the said criteria can be better judged by other methods like certificate from the L N C C Commander or a medical board or a I t psychiatrist and should not be left to a Z body like the selection committee which m cannot possibly arrlve at the correct mwo Z conclusion in a short time that would be available to it The criticism does not affect the validity of the criteria but only suggests a different method of applying the criteria than that adopted by the Committee It is not for us to say which method should be adoptedl that must 4 be left to the authority concerned If 111 any particular case the selection Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 200 CWPNo18735 of 2009 7 1 L committee abuse its power in violation of Art 14 of the Constitution that may be a 1 case for setting aside the result of a particular interview as the High Court did in this case We cannot therefore hold without better and more scientific material placed before us that selection m 0 by interview lrl addition to the marks obtained in the written examination lS 0 0 itself bad as offending Art 14 of the I C5 Constitution Il similarly ln Ajay Hasia ve alid Mujib Z Sehravardi AIR 1981 SC 487 it was observed that 1 oral interview was not satisfactory and should not C I be relied upon as exclusive test but should be only additional or supplementary test for assessing Z calibre of candidates It was also obsenred that to r bring about transparency tape recording of interview 5 Z may be done to eliminate any controversy and to have Qm a check on possible arbitrariness similarly ln DeVeBakshi and others ve Union of India and others AIR 1993 SC 2374 it was observed that element of subjectivity can be checked if proper record is maintained and marks are awarded under separate heads The relevant observations are as under If an oral test is therefore a must as in this case a heavy responsibility 1S Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 201 CWPNo18735 of 2009 V 18 1 1 t 1 cast on the examiners to maintain a proper record of the oral test in respect of 1 each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate Once this care 1S taken the element of subjectivity will be largely checked and the marks assigned under different heads 0 at the oral test will more or less 0 0 faithfully reflect the fitness of the C5 candidate In the matter of evaluation some degree of honest error must be Z countenanced However if there 1S any m allegation of nepotism or favourtism the Ct same can be checked with reference to the C record so maintained Since the oral test Z 1S a highly subjective one and 1S m susceptible to mlsuse the degree of proof 7 Z required for bringing home the charge of ll nepotism or favouritism may be light But that is not to say that a mere allegation based on the fact that passing of an oral test 1S a must or that the marks reserved for the oral test are excessive will per se without anything more set the Court probing into the records of the oral test But if the allegation 1S Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 202 CWPNo18735 of 2009 9 Of d supported by some dependable proof the Court will satisfy itself whether or not 1 the charge 1S well founded That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for 1 l suspicion in the minds Of the unsuccessful r 0 candidates that the result of the oral 0 test is tainted with bias for or against I 0 any candidate because even light proof in I support of the charge may upset the result Z of the oral test as a whole or qua a candidate as the case may b Il 0 I Inspite of observations made by this Court 0 as well as Honble Supreme Court 111 varlous Z judgments it is held that interview as sole basis of QO selection may not be per se illegal But in absence mmo Z of any such record for the assessment of respective CL candidates and without adopting procedure whatsoever for grading the observation by each member of the Committee the whole selection on the basis of interview does not seem to be proper and justified In the present case although criteria was adopted for shortlisting and comparative merit was prepared The petitioners came ln the area of short listing on the basis of their academic qualifications as well as Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 203 CWP No18735 of 2009 10 4 V experience but neither any record has been maintained or kept with regard to overall assessment of the 1 perfomance of each candidate nor grading has been done Even no criteria has been adopted by the Selection Committee Simply by stating that on the basis of performance in the interview the candidates were selected and the petitioners were found suitable Ir for the posts of Lecturers 10 physics After short listing of the candidates interview has been adopted 0 0 as sole basis Although there lS no malafide against C45 the Selection Committee but the candidates Who could I not come in the purview of selection have a right to Ct Z know about their placenent ln the list prepared by the Selection Committee and moreover transparency 1S t c required to be maintained but in the present case C nothing is there on record to show that the selection Z c was on the basis of grading or the performance before 10 e Selection Committee Neither grading is there nor A7 Z some criteria is there as to how the candidates have L1 been assessed by the Interview Committee It is not always necessary that the candidates who were more meritorious are always poor ln perfomance before the Interview Committee and the candidates who are less meritorious are always good lIl Vlva voce The criteria which was adopted for shortlisting of the candidates was known to the candidates and on the basis of that criteria adopted by the respondent Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 204 CWPNo18735 of 2009 11 S j 94 university the petitioners came ln the short 1 listin but subsequently they were not found suitable by the Selection Committee without giving any reason or assessment with regard to their perfonnance before the Interview Commlttee The argument of learned counsel for the respondentniversity that the petitioners have no 1 right to challenge the selection as they have participated and appeared before the Selection 0 0 Commlttee lS no ground to stop them in challenging 9 the intervieWe The petitioners are not aware with regard to the ground for non selection since the Z crlteria was adoptedat the time of shortlisting and the petitioners were under bonafide impression that C criteria would be adopted by the interview commlttee at the time of interview also Only on declaration Z of the result they came to know that no such f criterla was adopted and even they have not been 7 Z informed as to at which place they have actually Om appeared in the merit list simply by stating that they have not done well before the Selection Committee 1S no ground to oust them from the selection Moreover participation of the petitioners lIl the interview does not mean that they waive their right to challenge the procedure adopted by the Selection Committee for making selection since the petitioners were on higher footing than the selected U Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 205 CWPNo18735 of 2009 12 r pmcandidates in the merit prepared at the time of listing and they were under impression that selection would be done on the basis of merit and by adopting SOme methode This view has been supported ln judgment of Supreme Court 111 Mls Motilal Padamoat Suqar Mills Coe Ltd ve State of Uttar Pradesh AIR 1979 SC 621 wherein the following observation has Ct been madel 0 Waiver means abandonment of a right and it 0 may be either express or implied from I 0 conduct but its basic requirenent is that lt must be an intentional act with Z knowledge There can be no waiver unless 0 the person who is said to have waived his fully informed as t his right and with full C3 knowledge of such right he intentionally Z abandons it Il 00 If the selection Committee has assessed the V7 Z candidates on the basis of perfomance ln the Ll interview and in case that performance was other than the academic merit or the merit in shoralisting then how the testing of the candidate was done and what was the relevant questlons that of the petitioners who were having meritorious record with regard to their acadenic qualification and experience were poor in the test conducted at the time of lnterview similarly interview is also one of the Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 206 CWPNo18735 of 2009 13 1 methodsof testing the suitability of the candidates and as such holding of interview cannot per se be termed as extraneous to the Rules and selection only on this ground cannot be declared as null and void The grievance of the petitioners 1S not only that they have been ignored and other candidates have been selected Their grievance is that when the interview m 1 was held which was without any criteria and without 0 anything on record to show the evaluation of the CAO performanceof the candidates who appeared ln the I 40 interview the merit list prepared on the basis of I such interview deserves to be declared as illegal Z MrDeepak Sibal learned counsel appearing C for the respondent University has not been able to show even from the record that as to how the I performanceof the candidates was judgedlevaluated at Z the time of interview Neither from the record nor m from any other documents that any merit was prepared a Z or any grading was done on the basis of performance Ll of each candidate EVen there is nothing on record to show as to how the performance of the candidates has been assessed by the Interview Comnittee Petitioner No1 sent enail on 27102009 to the Registrar of the University with regard to selection of respondent No2 as she was simple MSc and NET qualified whereas petitioner Nol was having teaching experlence and 100 research Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 207 CWP No18735 of 2009 14 Pr4 1 publications 111 her credit but no reply was there Subsequently petitioner Nol moved an application under RTI seeking the particularslcriteria adopted by the University Necessary details was given and supplied that qualificatiislcriteria as well as the merit list was prepared Criteria for screening and shortlisting the candidates was given and on the 1 basis of that criteria merit list was prepared 0 showing the marks received by each candidate and 0 their respective ranking which 1S reproduced as C5 under Name Ranking Marks Z DrSunil Kumar 3 4425 DrTejbir Singh 4 4175 J DrCharanjit 15 3727 singh l3 DrTejbir singh 23 3125 Z Sandhu Kumari Babita 41 1667 CO Ranl ShVinayak Garg 48 1477 me Z ll Respondent No2 1S simple MSc and NET qualified and she has no research publication to her credit and was having only one year teaching experlence Similarly respondent No3 who was the second selected candidate was at SrNo8 in the merit list He is also simple MSc and NET qualified and has only three research publications but no teaching experience Petitioner No1 1S IVISc Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 208 9 CWP No18735 of 2009 r 7 MPhill as well as PhD who stood third the Punjabi University and 1S having teaching experience 1 of 12 years and 105 research publications lIl her credit out of which 41 are in International Journals The Hon ble Supreme Court in Lila ar Ve State of Rajasthan 1981 SCC 159 while expressing 1 its view about the importance of written as well as 0 interview list has observed as under C0 f U the written examination assesses the C5 mans intellect and the interview tests the I man himself and twain shall meet for a Z proper selection Il C Although there lS no dispute with regard to I selection zven only on the basis of interview but L0 that criterion should be known to the candidates and Z that should have been made public before but the f selection criterion must be fair and reasonable to 7 Z check subjectivity and arbitrariness Though the Courts nonnally exerclse 5 restraint ln interfering with the selection and specially when the criterion 1S laid down by the expert body but the Court cannot be oblivious of the fact that there has been steady decline of public standards public morals and public morale In such a 7 situation CoUrts can not shut their eyes and should not remain mute and dumb as has been observed in Anita 2014.04.22 10: 37 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:28 I attest to the accuracy and integrity of this document 209 1 1 S 9 CWP No18735 of 2009 14 Shiraiit Rao Nilanqekar Patil VS e Mahesh Madhar Gosari 1987 SCC 227 para 51 Although Selection Committee 1S normally left to devise its own procedure subject to being 1 fair and reasonable Selection has to be made by assessment of relative merits It 1S also not necessary to give any reason for the assessment but 1 power of awarding marks ln interview is coupled with the duty to select the best and camot be exercised 0 r 0 arbitrarily as has been observed in Union of India ve I C5 MeLeCapoor AIR 1974 SC 87 National Institute of 1 Mental Health and Neuro Sciences ve Dre Ke Kalyana Z Raman AIR 1992 SC 1806 para 7 and Mohan Kumar t sinqhania vse Union of India AIR 1992 SCl In Center t2 1 for Public Interest Litiqation vs e Union of India AIR 2005 Sc page 4413 appointment of Chief Z e Secretary was set aside with the observation that in C c case of sensltive posts appointments must be n Z transparent and persons of above suspicion 0 Keeplng 112 Vlew the facts of the present case as well as law position with regard to selection on the basis