IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 3304 of 2010 Date of Decision: 24.2.2010. Chatarpal and another --Petitioners Versus State of Haryana and another --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. J.S. Thind, Advocate for the petitioner. *** PERMOD KOHLI.J (ORAL) The petitioners seek to challenge the short listing of the candidates for selection/appointment for the posts of Clerks vide notice dated 9.12.2009 and dated 22.12.2009 (Annexures P-6 & P-7). Briefly noticing, the facts of the petition are that respondent no.2 advertised various categories of posts i.e. Clerks, Steno-typists and Driver etc. vide Advertisement No.1/2008 published in newspapers on 7.2.2008 inviting applications from the eligible candidates for the advertised posts. As many as 2734 posts of clerks in various departments, boards and corporations in the State of Haryana were notified for selection/appointment. The qualifications for the post of clerks in the advertisement are as under:- “ E.Q (I). Matric/MatricIstDivision/HigherSecondary/10+2/10+2 (vocational)/Graduation or its equivalent (For ex-servicemen Matric only). (II) Hindi/Sanskrit up to matric standard. Age limit: 17-40 years. Pay Scale: 3050-4500.” CWP. No. 3304 of 2010 -2- The petitioners belong to S.C category and claim to be eligible. They also applied for the aforesaid posts in accordance with the conditions/stipulations of the advertisement by depositing the requisite fee etc. The aforesaid advertisement was followed by a corrigendum (Annexure P-5) whereby the number of posts of clerks were revised from 2034 to 3098. It was also stipulated that the eligible candidates who could not apply earlier may apply now up to 10.11.2008. The candidates who have already applied against the original advertisement need not apply again. Respondent no.2 issued another notice dated 9.12.2009 inviting the candidates for interview on the basis of the short listing of the candidates on account of large number of applications. The candidates who had applied for their selection were shortlisted in the following manner:- Sr. No. Category Cut of Points 1. General 39.41 2. SC 34.06 3. BCA 36.54 4. BCB 36.57 5. ESM GEN All Eligible 6. ESM-SC All Eligible 7. ESM-BCA All Eligible 8. ESM BCB All Eligible 9. OSP GEN All Eligible 10. OSP SC All Eligible 11. OSP-BCA All Eligible 12. OSP-BCB All Eligible 13. a) PHC (Ortho) 29.29 b) PHC (Deaf & Dumb) All Eligible c) PHC (Blind) All Eligible 14. DESM-GEN, DESM-SC DESM-BCA, DESM BCB DEF GEN, DEF-SC DEF.BCA, DFF-BCB As per above cut off prescribed in their respective category i.e. Gen/SC/BCA/BC as the case may be. CWP. No. 3304 of 2010 -3- This short listing was carried out on the basis of the following criteria:- Qualification Formula Cut off points General SC BCA BCB PHC (Ortho) A For Matric Matric % age x 0.58 39.41 34.06 36.54 36.67 29.29 B For Senior Secondary Matric % age x 0.58+1= 39.41 34.06 36.54 36.67 29.29 C For Graduation & above. Matric %age x 0.58+2= 39.41 34.06 36.54 38.67 29.29 The above mentioned short listing was further revised on re- scrutining of applications and a fresh corrigendum dated 22.12.2009 was issued with modified cut of points on the basis of the short listing in the following manner:- HOW TO CALCULATE CUT OFF POINTS Sr. No. Qualification Formula Cut off points General SC BCA BCB PHC (Ortho) A For Matric/Higher Secondary Matric % age x 0.58= 37.83 32.03 34.77 34.93 25.23 B For Senior Secondary (+2) Matric % age x 0.58+1= 37.83 32.03 34.77 34.93 25.23 C For Graduation & above. Matric %age x 0.58+2= 37.83 32.03 34.77 34.93 25.23 The selection criteria to be adopted by the selection body was also notified in the aforesaid two notices dated 9.12.2009 and 22.12.2009 as under:- “ Academic Qualification + Viva Voce = Total 60 marks + 30 marks = 90 marks.” On the basis of the short listing criteria adopted by the selection body, the petitioners have been rendered ineligible. It is on account of this factor that the petitioners have filed this petition challenging the short CWP. No. 3304 of 2010 -4- listing adopted by the respondents. Learned counsel appearing for the petitioners has raised only one issue. According to him the advertisement prescribed the selection by written test followed by interview, whereas the respondent no.2 by issuing the short listing criteria has done away with the written test and by adopting the cut of marks in the qualifying examination and the candidates have been called for interview. According to him such a recourse is impermissible in law and is violative of the conditions of the advertisement. The advertisement dated 7.2.2008 has prescribed the minimum qualification for the purpose of selection i.e. Matric 1st Division and Higher Secondary/10+2/Vocational/Graduation or equivalent and Hindi/Sanskrit up to Matric standard with age limit between 17 to 40 years. There is one stipulation in the advertisement under the caption “Special Instructions” which deals with the short listing of the candidates for purposes of interview. The said condition is reproduced hereunder:- “ Special Instructions: The prescribed essential qualification does not entitle a candidate to be called for interview. The commission may short list the candidates for interview by holding a written examination or on the basis of a rational criterion to be adopted by the commission. The decision of the commission in all matters relating to acceptance or rejection on application, eligibility/suitablity of the candidates, mode of, and criteria for selection etc. will be final and binding on the candidates. No inquiry or correspondence will be entertained in this regard.” On the basis of the aforesaid special instructions, it is sought to be contended that the selection is to be made on the basis of the written test CWP. No. 3304 of 2010 -5- followed by the interview. It is submitted on behalf of the petitioners that in utter breach of the aforesaid conditions written examination has not been held and to the contrary the short listing has been made on the basis of the cut of points in the qualifying examination for purposes of holding interview of the candidates. From the reading of the aforesaid condition of advertisement notice, it is evident that the Commission has been conferred with the power to adopt the short listing of candidates for interview by holding a written examination or on the basis of rational criteria to be adopted by the Commission; meaning thereby the Commission is competent to adopt the short listing criteria either by holding a written examination or by any other rational or fair method. There is no stipulation in the advertisement which inter alia provides the mode of selection by written test followed by the interview, nor there is any statutory rule enjoining upon the selection body a duty to make selection by holding a written examination and interview. Respondent no.2 has notified the method of making selection i.e on the basis of the qualifications and interview. In view of the large number of candidates the Commission has adopted the short listing criteria for summoning the candidates for interview by introducing cut of points in the qualifying examination by adopting percentage of marks multiplied by 0.58 at the matric level in addition 1 point for higher secondary and 2 points for graduation and above. The final selection is to be made on the basis of the academic qualification for which 60 marks have been allocated viva voce 30 marks, total 90 marks. The merit will be determined accordingly. There is no condition to compulsorily hold written test for selection. Thus, the very basis of challenge to Annexures P-6 and P-7 is CWP. No. 3304 of 2010 -6- non-existent and imaginary. It is further contended that since in the advertisement the selection was to be made only on the basis of the qualifying marks, short listing is impermissible. As noticed above, the advertisement itself permits short listing. Short listing on the basis of the qualifying examination is one of the recognized and established mode of selection, where the large number of candidates apply and has received the approval of the Hon'ble Apex Court. In case of State of Haryana Vs. Subhash Chander Marwaha and others reported as 1973 (2) SLR 137 a similar question fell for consideration of the Hon'ble Apex Court. In the advertisement for selection to the judicial service in the State of Haryana minimum 45% marks were prescribed for qualifying the written examination. The High Court communicated the State Govt. to select candidates securing more than 55% marks in the examination. Accordingly, selection was made of the candidates who secured more than 55% marks in the examination which resulted in non-fulfilment of all the advertised vacancies. Out of 15 advertised vacancies only 7 candidates were appointed. The candidates who ranked 8,9 and 13 filed a writ petition seeking a direction for their appointment. While considering the issue, the Hon'ble Supreme Court observed as under:- “ It was, however, contended by Dr. Singhvi on behalf of the respondents that since rule 8 of Part C makes candidates who obtained 45 per cent or more in the competitive examination eligible for appointment, the State Government had no right to introduce a new rule by which they can restrict the appointments to only those who have scored not less than 55%. It is contended that the State Government have acted arbitrarily in fixing 55 per cent as the minimum for selection and this is contrary to CWP. No. 3304 of 2010 -7- the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed (1) [1962] (2) Suppl. S.C.R. 144. 171 to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who,, is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why rule 10(ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility. As shown in the letter of the Chief Secretary already referred to, they fixed a minimum of 55% for selection as they had done on a previous occasion. There is nothing arbitrary in fixing the score of' 55% for the purpose of selection, because that was the view of the High Court also previously intimated to the Punjab Government on which the Haryana Government thought fit to act. that the Punjab Government later on fixed a lower score is no reason for the Haryana, Government to change their mind. This is essentially a matter of administrative policy and if the Haryana State Government think that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should CWP. No. 3304 of 2010 -8- not be selected for appointment, those who get less than 55% have no right to claim that the selections be made of also those candidates who obtained less than the minimum fixed by the State Government. In our view the High Court was in error in thinking. that the State Government had somehow contravened rule 3 of Part C.” In case of Madhya Pradesh Public Service Commission Vs. Narendra Kumar Chowdhary and Anr. reported as 1994 (5) SLR 273 the selection for the post of Presiding Officer of the Labour Court was to be made. The minimum criteria prescribed under the rules was with 5 years practise, however, the High Court in its wisdom raised the period of practise for purpose of calling the candidates for interview from 5 years to 7 ½ years practise at the Bar. The short listing criteria so adopted was challenged. The High Court allowed the writ petition. However, the Hon'ble Supreme Court reversed the judgement with the following observations:- “ The Selection Board the Commission has to decide as to what procedure is to be followed for selecting the best candidates from amongst the applicants. In most of the services, screening tests or written tests have been introduced to limit the number of candidates who have to be called for interview. Such screening tests or written tests have been provided in the concerned statutes or prospectus which govern the selection of the candidates. But where the selection is to be made only on basis of interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview. The sole purpose of holding interview is to search and select the best among the applicants. It is obvious that it would be impossible to CWP. No. 3304 of 2010 -9- carry out a satisfactory viva voce test if large number of candidates are interviewed each day till all the applicants who had been found to be eligible on basis of the criteria and qualifications prescribed are interviewed. If large number of applicants are called for interview in respect of four posts, the interview is then bound to be casual and superficial because of the time constraint. The members of the Commission shall not be in a position to assess properly the candidates who appear before them for interview.” The aforesaid view is being consistently followed. It would not be out of context to note that the very object of the selection is to choose the best and the employer/selection body, if, adopts a fair, rational and non- arbitrary criteria of short listing the candidates to restrict the number of candidates for consideration, the action cannot be assailed on the ground of arbitrariness or deviation from the prescribed qualification. The prescribed minimum qualification remains the same and any person who possesses the minimum prescribed qualification cannot claim an absolute right of selection/appointment. It is only the eligibility for entering the competition and cannot be construed as success in the competition. At the first place the very basis for challenging the impugned order is absolutely baseless and the method laid down for short listing cannot be said to be irrational or unfair. No merit, petition dismissed. (PERMOD KOHLI) JUDGE 24.2.2010. lucky Whether to be reported to the Reporters? Yes.