IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1211 of 2008 (O&M) Date of Decision : July 17, 2008 Sandeep Madan ....Appellant Versus Nitin Gupta and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. R.K. Malik, Senior Advocate with Mr. Rakesh Kumar, Advocate for the appellant. Ms. Divya Sharma, Advocate for respondent No. 1. Mr. H.S.Sethi, Advocate for respondents No. 2 to 4. T.P.S. MANN, J. Nitin Gupta and Parampreet Kaur Ahuja filed independent but identical civil suits challenging the selection of Sandeep Madan as Assistant Environmental Engineer in Chandigarh Pollution Control Committee (hereinafter referred to as ‘the Committee’) in pursuance of interview held on 18.2.2005 on the ground that it was illegal, arbitrary, against the rules and regulations and in a malafide manner. Both the suits came to be decided by learned Civil Judge (Junior Division), Chandigarh on 8.2.2007 by holding that the criteria of selection was changed after the advertisement of the post and before the interview and the changed criteria caused prejudice to the appearing candidates because selection Regular Second Appeal No. 1211 of 2008 (O&M) was made purely on the basis of educational qualifications and on merit alone and not by considering the experience of the applicants. Both the suits were partly decreed and the selection of Sandeep Madan on the basis of changed criteria was held illegal, null and void. It was, however, held that both, Nitin Gupta and Parampreet Kaur Ahuja, did not get any right to be selected on the post of Assistant Environmental Engineer, as the selection process had been set aside on the ground of change of selection criteria. Besides, they were also not entitled for permanent injunction, as Sandeep Madan already stood appointed to the post advertised during the pendency of the proceedings. The Committee was given liberty to advertise the post again and select the candidate in accordance with law after publishing the criteria afresh at the start of process. The aforementioned decision in both the civil suits was challenged by Sandeep Madan by filing two separate appeals impleading Nitin Gupta as respondent in one appeal and Parampreet Kaur Ahuja in the other. The other defendants were also impleaded as party-respondents in both the appeals. Both the appeals were,however, dismissed by learned Additional District Judge, Chandigarh on 4.2.2008 by passing identical but separate orders. Judgments and decrees under appeals were upheld with the modification that instead of advertising the post again and selecting the candidate in accordance with law after publishing the criteria afresh, the Committee would assess the merit of each candidate as per prescribed criteria dated 10.1.2005 and after giving them marks, which were allocated by the Expert Committee in the interview. For the said -2- Regular Second Appeal No. 1211 of 2008 (O&M) purpose, the Committee was directed to do the necessary assessment within 90 days from the passing of the judgment and decree by learned Additional District Judge, Chandigarh. It may also be mentioned here that against the judgment and decree passed by the learned trial Court in both the suits, the Committee and its Vice Chairman also filed appeals before the learned lower appellate Court, which were, however, dismissed. Aggrieved of the judgment and decree passed by learned lower appellate Court, Sandeep Madan-defendant has filed present appeal, i.e. R.S.A. No. 1211 of 2008 impleading Nitin Gupta-plaintiff, besides other defendants as respondents and R.S.A. No. 1212 of 2008 in which Parampreet Kaur Ahuja-plaintiff has been impleaded as respondent, besides other defendants as respondents as well. Similarly, the Committee and its Vice Chairman have filed R.S.A. No.1361 of 2008, wherein Parampreet Kaur Ahuja-plaintiff has been impleaded as respondent and R.S.A. No. 1365 of 2008 impleading Nitin Gupta-plaintiff as respondent. As all the four appeals are based on same and identical set of facts and law, they are being disposed of by one common judgment. On May 05, 2008, when the first two appeals came up for motion hearing, learned counsel for Sandeep Madan, defendant-appellant submitted that even if assessment was made of all the concerned candidates as per criteria adopted on January 10, 2005, the appellant would figure at serial No. 1 in the merit-list. To find out the worth of the contention made by learned counsel for the appellant, a direction was issued to the Committee to undertake the requisite exercise as per -3- Regular Second Appeal No. 1211 of 2008 (O&M) directions given by learned lower appellate Court. Mr. H.S. Sethi, Advocate appeared on behalf of the Committee and prayed for an adjournment so as to apprise the Court about the outcome of the exercise. On the adjourned date, a comparative chart was placed on record by learned counsel appearing for the Committee, which showed that both Nitin Gupta and Sandeep Madan obtained equal number of marks i.e., 33 out of 45 after their assessment in view of the criteria dated 10.1.2005, while Parampreet Kaur Ahuja got only 29 marks. Apparently, there was a tie between Nitin Gupta and Sandeep Madan. Out of both of them, only one could be considered so as to be appointed as Assistant Environmental Engineer. The tie could be resolved only by the department, but as per prescribed procedure. The hearing was accordingly, adjourned to July 17, 2008 with a direction to the department to break the tie. An application was, thereafter, filed by Nitin Gupta, wherein he challenged the action of the committee in resolving the tie by conducting a fresh interview. This application came up for hearing on 6.6.2008 when learned counsel appearing on his behalf stated that such an interview was not envisaged for breaking the tie between him and Sandeep Madan-appellant. After hearing learned counsel for Nitin Gupta, notice of the application was issued to learned counsel for Sandeep Madan-appellant for today. It was, however, directed that in the meantime, the interview, as required vide letter dated 2.6.2008 issued by Member Secretary of the Committee, be not held. -4- Regular Second Appeal No. 1211 of 2008 (O&M) Today, at the time of hearing of the matter, learned counsel appearing for the committee has produced an affidavit sworn in by Shri Pawan Jit Singh Dadhwal, Member Secretary, Chandigarh Pollution Control Committee. Along with the affidavit, the proceedings of the Committee, which were conducted on 11.7.2008 has been attached. The details of the proceedings are re- produced here-in-below :- “The Committee pursuant to the Order dated 11.7.2008 of Vice-Chairman, Chandigarh Pollution Control Committee met on 11.7.2008 at 4.00 P.M. has gone through the following records pertaining to the selection for the post of Assistant Environmental Engineer in Chandigarh Pollution Control Committee :- 1. Recruitment Rules i.e. Chandigarh Pollution Control Committee, Chandigarh Administration (Method of Recruitment, Terms & Conditions of Services of Officers and other employees other than Member Secretary) Regulations, 2004. 2. Advertisement published in Employment News dated 21-27 August, 2004. 3. Criteria for selection fixed on 10.1.2005. 4. Minutes of the meeting of the Selection Committee held on 18.2.2005. -5- Regular Second Appeal No. 1211 of 2008 (O&M) 5. Final List of the candidates along with marks allotted to them (Educational Qualification, Experience & Oral Test). The Committee has also gone through the order of Hon’ble High Court dated 15.5.2008 as well as list of marks of all 21 candidates who appeared before the Selection Committee, as was submitted for consideration of Hon’ble High Court on 15.5.2008. A perusal of the applications submitted by contesting candidates, Sh. Nitin Gupta and Sh. Sandeep Madan and the marks given to them as per Recruitment Rules shows that in case of Assistant Environmental Engineer, the basic qualification required for direct recruitment is Bachelor Degree in Engineering in 1st Division. It also prescribes that Master Degree in Environmental Engineering and Experience of one year in the filed of Pollution Control is desirable. As per above records and comparative assessment chart, Sh. Nitin Gupta obtained 27 marks and Sh. Sandeep Madan obtained 24 marks on account of basic educational qualification, higher qualification and experience. However, during oral test, Sh. Nitin Gupta was awarded 6 marks whereas Sh. Sandeep Madan was awarded 9 marks by the Selection Committee consisting of 6 members, out of which three were experts in environment and pollution control. Since, the Committee on the basis of the performance of oral test/interview graded Sh. Sandeep Madan far better than Sh. Nitin Gupta and recommended selection of Sh. Sandeep Madan and placed Sh. Nitin -6- Regular Second Appeal No. 1211 of 2008 (O&M) Gupta on the waiting list. In order to break the tie, this Committee recommends that the assessment of Selection Committee which constituted of subject experts, should be treated as final. Sd/- Sd/- Sd/- Ishwar Singh Kamlesh Kumar P.J.S. Dadhwal Director-cum-Joint Secretary, Chandigah Member Secretary Secretary-Environmental Housing Board CPCC” Department, Chandigarh Administration From the proceedings of the Committee conducted on 11.7.2008, it is clear that the Committee has broken the tie between Nitin Gupta, plaintiff-respondent and Sandeep Madan, defendant-appellant on the basis of marks obtained by them at the time of interview, which was earlier held on 18.2.2005. According to the Committee, Sandeep Madan was graded better than Nitin Gupta on the basis of the performance of oral test/interview. The Selection Committee had consisted of six Members, out of which three were Experts in Environment and Pollution Control. Accordingly, selection of Sandeep Madan was recommended, while Nitin Gupta was placed in the waiting-list. In view of the above, the appointment of Sandeep Madan as Assistant Environmental Engineer was in accordance with the rules and the criteria adopted on 10.1.2005. Learned counsel for Nitin Gupta-respondent in R.S.A. No. 1211 of 2008 and Parampreet Kaur Ahuja-respondent in R.S.A. No. 1212 of 2008, however, submitted that the Selection Committee, which interviewed various candidates on 18.2.2005 was headed by the -7- Regular Second Appeal No. 1211 of 2008 (O&M) Finance Secretary, whereas it should have been headed by the Chairperson of the Committee and, therefore, the grading of Sandeep Madan conducted by the Selection Committee be not taken into consideration. As is apparent from the judgment passed by the learned trial Court, the Chandigarh Administration vide Extraordinary Gazette Notification dated 23.10.2002 notified the Finance Secretary as Vice- Chairman of the Committee and, therefore, to head the Selection Committee. Though, Nitin Gupta and Parampreet Kaur Ahuja have objected to the appointment of Finance Secretary-cum-Vice-Chairman of the Committee to head the Selection Committee instead of the Chairperson of the Committee yet they did not plead any malafide on its part or violation of the statutory regulations in heading the Selection Committee. Moreover, after the passing of the judgments and decrees by the learned lower appellate Court, none of the aforementioned contesting defendants in the two suits filed any appeal to challenge the findings arrived therein. Only objection raised, at one point of time, was to the action of the Committee in resolving the tie by conducting fresh interview. As mentioned above, on 6.6.2008 this Court directed that the affected candidates be not subjected to interview, once again. As the directions given by learned lower appellate Court to the Committee to assess the merit of each candidate as per the criteria adopted on 10.1.2005 after allocating the marks to each candidate, which had already been awarded by the Selection Committee in the interview, have been complied with by the Committee in its meeting held on -8- Regular Second Appeal No. 1211 of 2008 (O&M) 11.7.2008 by recommending selection of Sandeep Madan to the post of Assistant Environmental Engineer, the two appeals, i.e., R.S.A. No. 1211 of 2008 filed against Nitin Gupta and others and R.S.A. No. 1212 of 2008 filed against Parampreet Kaur Ahuja and others deserve to be accepted by modifying the judgments and decrees passed by the learned Courts below and dismissing the suit filed by the plaintiffs. Simultaneously, the appeal i.e. R.S.A. Nos. 1361 and 1365 of 2008 filed by Chandigarh Pollution Control Committee and another have been rendered infructuous in view of the acceptance of the two appeals of Sandeep Madan and, therefore, to be disposed of as such. Resultantly, R.S.A No. 1211 of 2008 and R.S.A. No. 1212 of 2008 are accepted. Judgments and decrees passed by the learned Courts below are set aside and the suits filed by Nitin Gupta and Parampreet Kaur Ahuja are dismissed. R.S.A. No. 1361 of 2008 and R.S.A. No. 1365 of 2008 filed by Chandigarh Pollution Control Committee and another are disposed of as having become infructuous. Before parting with the judgment, a request made on behalf of Sandeep Madan may be noticed. It is submitted that on 8.3.2007 when the appeals of Sandeep Madan-appellant were admitted by learned Additional District Judge, Chandigarh an interim order was passed that he be not relieved from the service in execution of the judgment and decree of the learned trial Court subject to his giving an undertaking that in the event of his appeals being decided against him, he would pay back salary received by him during the period of currency of the said appeals. Though, the appeals of the appellant were later on dismissed by learned -9- Regular Second Appeal No. 1211 of 2008 (O&M) lower appellate Court, yet on account of acceptance of his appeals now, which amounts to dismissal of the suits of Nitin Gupta and Parampreet Kaur Ahuja, the appellant is relieved of his obligation to pay back the salary already received by him. ( T.P.S. MANN ) July 17, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO -10-