* THE HON’BLE MR JUSTICE NOOTY RAMAMOHANA RAO + WRIT PETITION NO. 8926 OF 2010 % 22.12.2010 # V.Balakrishna Reddy .....Petitioner Vs. $ The Jawaharlal Nehru Technological University, Kukatpally, Hyderabad rep. By its Registrar .....Respondent ! Counsel for the petitioner: MR.G.Mohan Rao ^ Counsel for the Respondents: Sri Rathangapani Reddy, Standing Counsel <GIST: > HEAD NOTE: ? Cases referred [1] (2000) 8 SCC 633 2 (2009) 9 SCC 304 3 (1988) 3 SCC 241 4 AIR 1987 SC 454 5 (1991) 4 SCC 555 6 (1993) 3 SCC 663 7 JT 1993(2) SC 311 : 1993 Supp (4) SCC 70 8 AIR 1995 SC 77 9 (1980) II LLJ175 SC THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANARAO. W.P.NO.8926 OF 2010 O R D E R: This Writ petition has been instituted questioning the action of the respondent, Jawaharlal Nehru Technological University, Hyderabad (for short ‘JNTU’) in holding the written test and interview on 20-4-2010 and 21-4- 2010 respectively for the post of ‘Assistant Professor’ in Electrical and Electronics Engineering Branch, pursuant to the advertisement dated 23-7- 2009 without notifying the syllabus for the test, the nature of the test and the marks for the test and interview as arbitrary and illegal. The writ petitioner has passed the 4 year B.Tech degree course in Electrical and Electronics Engineering Branch from JNTU, Anantapur in the year 2004. Thereafter, he passed and obtained his M.Tech., degree in Electrical Power Engineering Branch from JNTU, Hyderabad, in the year 2009 in First Class. He is presently working as an Assistant Professor with a local engineering college. The respondent University has issued an advertisement on 23-7-2009 inviting applications for recruitment to posts of Professors, Associate Professors and Assistant Professors in various disciplines of Engineering and Technology/various other Science subjects. A total of seven (7) posts of Assistant Professors in Electrical and Electronics Engineering have been notified. Of them, two (2) are thrown open, while the rest five (5) are reserved amongst Scheduled castes, Backward classes and the visually challenged category. The qualifications required to be possessed for these posts had been notified as FIRST class Degree in the appropriate branch of Engineering/Technology or First Class Bachelors Degree in the appropriate branch of Engineering/Technology or equivalent, valid GATE score of minimum 75%, required to complete M.Tech.,/M.E., within five (5) years failing which the increments will be stopped until the post graduate degree is earned. A set of instructions have been appended to the notification. Instruction No.17 indicated that the date of interview will be intimated in due course of time. However, Instruction 21 reads as under: “Wherever necessary, the University may prefer conducting a screening/written test and based on the performance in the written test suitable number of candidates will be called for interview.” The last date for receipt of the applications was 17-9-2009. The writ petitioner is one of the candidates who has responded to this notification and consequently he has received on 9-4-2010, an intimation letter informing him to attend for written test scheduled to be held on 20-4-2010 at 11 AM AT Kukatpally campus of the respondent University. It was made clear that qualified candidates in the written test need to appear for an interview before the Selection committee on 21-4-2010 at 12 Noon. Such candidates were required to report one hour before the scheduled time for interview for the purpose of registering his/her name and for scrutiny of the Original certificates. It is this action of the respondent - University that is instrumental for instituting this writ petition. It is averred in paragraphs (5) and (6) of the affidavit filed in support of this writ petition that the call letter does not indicate the syllabus for the written test, the nature of the test viz., whether it is essay type or objective type, the duration of the test and the total marks for the test and the qualifying marks to be obtained. The call letter also does not specify the ratio in which the candidates will be called for interview and that there is no transparency whatsoever in the whole process of selection indicating thereby that the select list of candidates had already been prepared. It is specifically averred that the candidates in whom the establishment is interested were intimated about the written test and other details and that, it appears, a number of phone calls were received from the Ministers and powerful politicians for selection of their candidates and the selection now contemplated is merely an eye wash. It is also further pointed out that there is no reservation in favour of local candidate and there is no intimation regarding the constitution of the interview boards and that awarding of marks is not based on any rational or fair criteria and that there is no Executive council of the respondent University existing in office, for it to ratify the selections and therefore it is only appropriate that the selections be not rushed through. It is also asserted that a detailed representation has been submitted in that regard on 17-4-2010 to the respondent University and also various other organizations to withhold the selections. Entertaining this writ petition on 20-4-2010 an interim direction has been issued by this court not to issue orders of appointment to any selected candidates pending further orders. On behalf of the respondent University, it’s Registrar has filed counter affidavit. It is stated that the notification dated 23-7-2009 has been issued intending to make recruitment to various posts, as per the roster approved by the Commissioner of Social Welfare and Tribal Welfare and that the respondent University conducted selections for some of the posts during the 1st week of December 2009 and due to the unrest and agitation in the State, the selection process was postponed and the same was re-scheduled to be held between 19 to 29th April, 2010. It was further pointed out that it is a practice adopted by the respondent University to conduct a written test preferably a day before the scheduled date of interview whenever large number of candidates apply for the posts and hence necessary intimation in this regard has been furnished in instruction No.21 of the advertisement. It was further pointed out that on 17-4-2010 intimation has been sent through E- mail and short messaging services (SMS) clearly indicating that for the post of ‘Assistant Professor’, the written test will be conducted with 60 multiple choice questions in under graduate syllabus with one hour duration. It was further pointed out that the writ petitioner has in fact attended the written test on 20-4-2010 and his name figured in the short listed candidates for interview, which list was published at 5 PM on the notice board on the same day and that he has also appeared for the interview test on 21-4-2010. In view of his participation in the selection process, the bonafides behind the above writ petition are challenged. The writ petitioner has filed a reply affidavit pointing out that by the last date of submission of applications, the necessary data as to the number of candidates who have applied for would have become available to the respondent University and hence it ought to have notified the written test clearly specifying the syllabus, the duration, the type of test, the number of marks and the ratio in which the qualified candidates would be subjected to interview etc., This information has been deliberately held back till the very last. The petitioner has asserted that he has not received any e-mail and that since he was using a cell phone bearing a different number, than the one furnished in his application form, he did not receive even the SMS alleged to have been sent by the University and even on the cell phone number which he has mentioned in the application form also no such message is received. It was further pointed out that all communications are required to be addressed and sent to the address furnished in the application form and the mode of communication through e-mails and SMS is not one of the recognized modes of communications. Further, since candidates would be drawn from different Universities, the information that the written test will be conducted with Under-Graduate syllabus is too vague inasmuch as the said syllabus varies from University to University. This apart, the syllabus of the respondent university has undergone a change a couple of years back only. Since the selection process lacked transparency, the writ petitioner has asserted that it lacked objectivity and fairness. It was further asserted that the selections are based upon extraneous considerations rather than the merit of the candidates. In paragraph (7) of the reply affidavit, it is suggested that the respondent University should have video graphed the interview proceedings to prove their bonafides and also produce the same for verification to ensure fairness and transparency in the selection process. He therefore prayed that the selections be undertaken all over again. An additional counter affidavit has been filed deposed to by the Registrar of the respondent University. In support of its contention that the Screening Test is conducted by the respondent University wherever large number of candidates applied for the posts, the necessary data is furnished. It is also pointed out that pursuant to the notification dated 23-7-2009 as to how the selections were conducted in two phases - one in December and another in April and as to how on both occasions the written test was conducted on 1-12-2009 and 20-4-2010. It was further asserted that since the writ petitioner has already appeared for the written test and has also attended for the interview, the respondent University be permitted to finalize the selections and proceed further in the matter of making appointments in view of the urgency, as the academic year for 2010-2011 has commenced. I have heard Sri G.Mohan Rao, learned counsel for the petitioner and Sri Rathangapani Reddy, learned Standing counsel for the respondent University. While reiterating the various contentions canvassed in the pleadings set up by the Writ petitioner, Sri Mohan Rao, learned counsel for the petitioner would urge that the procedure adopted by the respondent university in the matter of selections of Assistant Professors is clearly lacking in transparency and fairness. Learned counsel would submit that the respondent university does not appear to realize the distinction between a written test and a mere screening test. If a written test is conducted preceding the oral interviews, then the respondent ought to have disclosed the percentage of marks, which will be taken into account and consideration for both these components viz., written test and the oral interview test. On the other hand, if the written test is merely a screening test, to screen out certain number of candidates, even then the marks that are required to be secured by the candidates to qualify in the screening test ought to have been disclosed. If on the other hand, a specified percentage of candidates alone will be subjected to the process of selection through viva voce, then the norms in that regard ought to have been disclosed. The University does not specify as to whether it is adopting a common cut off mark in the screening test as the qualifying mark or a proportion such as 1:5 or 1:10, which renders the candidates eligible. This itself, according to the learned counsel for the petitioner, indicates that the University is flexible in devising the norms of selection and does not have fixed rules drawn before the game has commenced. More importantly, the learned counsel for the petitioner would submit that a responsible officer like the Registrar of the University does not deny the allegation that the selection list of candidates has already been drawn much before the screening test itself because of the pressure exerted on the respondent University by Hon’ble Ministers and powerful politicians. Sri G.Mohan Rao, had also placed reliance on the Judgement rendered by the Supreme Court in Praveen Singh v. State of Punjab[1] in support of his contention that not taking into account the marks secured at the written test is fatal. He finally concludes that due to the lack of fair and transparent procedure, the selections carried out by the respondent University should not be allowed to be finalized. Per contra, Sri Rathangapani Reddy, learned standing counsel for the respondent University would submit that the posts for which the selections were carried out are various teaching posts in the university and the general norm adopted for selection to such posts is invariably an oral interview test. But, however, the respondent University has adopted the practice of conducting a screening test so that few of the applicants can be eliminated based purely on their performance at the said test. He places strong reliance upon the Judgement rendered by the Supreme Court in Union of India v. Muralidharan Menon[2], in support of his contention that the petitioner is estopped from raising any dispute, having participated in the selection process. Let us now notice the march of law on the issue relating to the role of interview or viva voce test forming an important element of selection of candidates. Oral examination of the competing candidates is long considered to be an efficacious instrument for estimating the general suitability of the candidate for the post specified. The essential purpose of the viva voce test is to bring out sparely the abilities and also simultaneously notice the deficiencies of the candidates which may not have been brought forth clearly in the written examination. Viva voce tests are designed for making a fair assessment of the abilities, but also the aptitude, the attainments, the accomplishments and the spheres of interests in specialization of various topics or subjects, which will have a direct relevance to the suitability and the responsibilities required to be discharged by the candidates concerned. The object of interview and the important role it plays in the selection process and the consequential promise and the dangers it presents has been considered by the Supreme Court in Mehmood Alam Tariq v. State of Rajasthan[3] in the following words: “…………. The much desired transformation from patronage to open competition is later development, to which, now, all civilised governments profess commitment. However, though there is agreement in principle that there should be a search for the best talent particularly in relation to higher posts, however, as to the methods of assessment of efficiency, promise and aptitude, ideas and policies widely vary, though it has now come to be accepted that selection is an informed professional exercise which is best left to agencies independent of the services to which recruitment is made. The 'interview' is now an accepted aid to selection and is designed to give the selectors some evidence of the personality and character of the candidates. Macaulay had earlier clearly declared that a youngmen who in competition with his fellow-men of the same age had shown superiority in studies might well be regarded as having shown character also since he could not have prepared himself for the success attained without showing character in eschewing sensual pleasures. But the interview came to be recognised as an essential part of the process of selection on the belief that some qualities necessary and useful to public-servants which cannot be found out in a written test would be revealed in a viva-voce examination. In justification of the value and utility of the viva-voce, the committee on Class I examinations in Britain said: ...It is sometimes urged that a candidate, otherwise well qualified, may be prevented by nervousness from doing himself justice viva-voce. We are not sure that such lack of nervous control is not in itself a serious defect, nor that the presence of mind and nervous equipoise which enables a candidate to marshal all of his resources in such conditions is not a valuable quality. Further, there are undoubtedly some candidates who can never do themselves justice in written examinations, just as there are others who under the excitement of written competition do better than on ordinary occasions... We consider that the viva-voce can be made a test of the candidate's alertness, intelligence and intellectual outlook, and as such is better than any other.... As to the promise as well as the limitations of the viva-voce, Herman Finer says: If we really care about the efficiency of the civil service as an instrument of government, rather than as a heaven-sent opportunity to find careers for our brilliant students, these principles should be adopted. The interview should last at least half an hour on each of two separate occasions. It should be almost entirely devoted to a discussion ranging over the academic interests of the candidate as shown in his examination syllabus, and a short verbal report could be required on such a subject, the scope of which would be announced at the interview. As now, the interview should be a supplementary test and not a decisive selective test. The interviewing board should include a business administrator and a university administrator. The interview should come after and not before the written examination, and if this means some inconvenience to candidates and examiners, then they must remember that they are helping to select the government of a great state, and a little inconvenience is not to be weighed against such a public duty.... (See Theory and Practice of Modern Government-Herman Finer at page 779) The problems of assessment of personality are indeed, complicated. On the promise as well as dangers of the purely 'personal-interview' method, Pfiffner-Presthus in his 'Public Administration' at page 305 says: Pencil-and-paper tests that measure some aspects of personality are now available. Notable among these are the so-called temperament or personality inventories. These consist of questions in which the applicant is asked to evaluate himself relative to certain aspects of psychiatry and abnormal psychology. Such tests are subject to a great deal of controversy however, and there is a school of experimental psychologists which condemns them, mainly on two grounds. First, individuals will not give honest answers in a competitive test that asks them to describe their abnormal and intimate behaviour or beliefs. Second, it is maintained that the value of these tests lies in their use as the reputic or clinical aids rather than as vehicles for competition.... ...Appointing officers are afraid that examining procedures will fail to give proper attention to such qualifications. The result is that they often feel they could do a better job of selection using only the personal interview. There are at least two reasons why this cannot be allowed. The first relates to the protective tendency of civil service; appointing officers may appoint brothers-in-law or personal favourites. In addition, psychological research has shown that the interview is of questionable validity, even in the hands of an experienced executive.” Prior thereto in Ashok Kumar Yadav v. State of Haryana[4], it has been stated as under: “22. We do not think that the selections made by the Haryana Public Service Commission could be said to be vitiated merely on the ground that as many as 1300 and more candidates representing more than 20 times the number of available vacancies were called for interview, though on the view taken by us that was not the right course to follow and not more than twice or at the highest thrice, the number of candidates should have been called for interview, Something more than merely calling an unduly large number of candidates for interview must be shown in order to invalidate the selections made………..” In the context where the rules do not specifically require a written test followed by an oral interview test as forming integral part of the selection process, the question as to whether the selections made on the basis of the interview test alone would become illegal had fallen for consideration by the Supreme Court in Sardara Singh and others v. State of Punjab and others[5] and the question was answered in the following words: “7. xxxxxxxx Normally it may be desirable to conduct written test and in particular hand writing that which is vital for a Patwari whose primary duty is to record clearly entries in revenue records followed by oral interview. The rules do not mandate to have both. Options were given either to conduct written test or viva voce or both. In this case the Committee adopted for viva voce as a method to select the candidates which cannot be said to be illegal.” In D.V.Bakshi and others vs. Union of India and others[6], the Supreme Court has noticed that the oral interview test being of highly subjective character, an allegation of arbitrariness would easily be made against it. It has been clearly stated that a heavy responsibility lies on the examinees of the oral interview test to maintain proper record of the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate a candidate, so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any particular candidate. Since the oral test is highly subjective and is also susceptible to misuse, the maintenance of the record of the examinees would ultimately disclose the fair approach the examiners adopted in the matter of selections. Mere allegations based on the ipsi dixi’s of the candidates, will not, without anything more, offer the necessary background for a probe into the records of the oral test maintained by such examiners. It is therefore essential that until and unless the selections are finalized, the distinguishing features between the selected and the non selected candidates would not become apparent, for any probe is to be undertaken. It will also be appropriate to notice that in Praveen Jindal v. State of Haryana[7], the Supreme Court has noticed that even if the rules prescribe a minimum percentage of marks in the written test for being called for interview, the same will not create a right in the candidate who has obtained such prescribed percentage to be called for the next stage of selection process viz., the interview test. It will also be appropriate to notice in this context that the Supreme Court in Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar[8] has held that the process of short listing of candidates does not amount to altering or substituting the eligibility criteria inasmuch as the very process of short listing is in fact a part of the very process of selection of candidates. In the light of the various principles enunciated by the Supreme Court on the subject, if we examine the factual background, the posts that are sought to be filled in are posts of Assistant Professors in one branch of engineering subject or the other. Most Universities in the country constitute Selection Committees comprising of eminent academicians/researchers of certain standing. Most of the times, the Selection Committee members are drawn from outside the University which intends to make the recruitment. Participation of eminent academicians who are mostly drawn from institutes or universities elsewhere in the selection process can reasonably assure that fair and objective criteria would be evolved by them in the matter of selection of the candidates. For such accomplished examiners, it would be very easy to make an assessment about the depths of knowledge of the candidate who comes before them, the areas of interests or specialization and their ability to conceive various concepts on the subject and more importantly, the articulation capabilities of such candidates. It is appropriate to remember that the respondent – University has proposed to fill up the teaching posts. A teacher is required to impart theory and practical knowledge of one branch of engineering or the other to the student community. Therefore, it is vital that such candidates must have good articulation capacity and skill to guide the students on proper lines for carrying out research. These components can easily be judged at the oral interview test by subject experts. Therefore, preference of