IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.3445 of 2003 Date of decision: 01 .7.2009 Anu Radha -----Petitioner Vs. State of Haryana and others -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE JITENDRA CHAUHAN Present:- Mr. Puneet Bali, Advocate as amicus for the petitioner. Mr. Lokesh Sinhal, Addl.A.G.Haryana for the State. Mr. S.R.Hooda, Advocate for respondent No.2. Adarsh Kumar Goel,J. 1. This petition seeks a direction to appoint the petitioner to the post of Head Mistress, after quashing the selection made by the Haryana Public Service Commission (HPSC) to the said posts. 2. Case of the petitioner is that vide advertisement dated 14.12.2001, Annexure P.14, the HPSC invited applications for 140 posts of head Masters/Head Mistresses in the pay scale of Rs.7500-12000. The requisite qualification was Graduation, preference being given for Post Graduation CWP No.3445 of 2003 with degree or diploma in Education and eight years’ experience of teaching in a Government school. The petitioner was eligible and was allowed to appear in the screening test held on 26.5.2002. She qualified and appeared for interview on 22.7.2002 but was not declared successful as per result published on 7.9.2002. The petitioner served legal notice dated 25.9.2002, Annexure P.19 seeking to know criteria adopted in the interview and names of selected candidates but vide reply dated 20.11.2002, Annexure P.20, she was informed that the criteria was confidential and that documents of selected candidates had already been forwarded to the Government. Present petition was filed on 28.2.2003. 3. Contention raised in the petition is that the petitioner had higher merit as compared to respondent No.3 who was one of the selected candidates, as she was more qualified and her percentage of marks was higher. Her experience was also more. There is no transparency in the selection process and the same was arbitrary. 4. In the reply filed on behalf of the State, it is stated that the selected candidates stood appointed in the order of their merit as recommended by the HPSC. The stand of the 2 CWP No.3445 of 2003 HPSC is that the selection is purely on merit and higher qualification and more experience did not necessarily mean higher merit of the petitioner. 5. On 3.11.2006, the petition came up before a learned Single Judge who referred the matter to larger bench. The order of reference is as under:- “In deference to the order dated May 26, 2006, Shri S.R.Hooda, learned counsel representing respondent No.2, has produced the original records containing the “selection criteria” as well as “allocation of marks in interview”. The same have been perused. In view of the judgment rendered by the Hon’ble Supreme Court in Anzar Ahmed v. State of Bihar and others, 1994(1) RSJ 557, though it appears that there could be no restriction to restrict the marks for interview as no written test has been held for the purpose of selection. The restriction on allocation of marks for interview imposed by the Hon’ble Supreme Court in the case of Ashok Kuamr Yadav and others v. State of Haryana and others, 1985(4) SCC 417, thus, can be distinguished. Similarly the Commission, on the strength of the judgment of the Hon’ble Supreme Court in Dr. Keshav Ram pal v. UP Higher Education 3 CWP No.3445 of 2003 service Commission, 1986(1) SLR 681, can take the plea that it was not obligated to sub divide the marks for interview/viva voce under various heads. There are some subsequent judicial precedents also wherein the selection based upon the interview only, have been approved. However, whether the Commission, while laying down a selection criteria in which it consciously decides to sub divide the marks in interview/viva, but does not hold a written test for the selection purposes, enjoys unquestionable powers to determine such selection criteria and/or what can be the scope of judicial review to test the same on the touchstone of Articles 14 and 16 of the Constitution also appears to be of paramount public importance. As the aforesaid question does arise for determination in the present case, I am of the considered view that it would be more appropriate if the same is answered by a larger Bench. Consequently, let the papers of this case be placed before Hon’ble the Acting chief Justice.” 6. The Commission produced the record as directed, which was perused by the Court. On 22.5.2007, following order was passed:- 4 CWP No.3445 of 2003 “Record has been produced before us. The same was opened and after perusal, the same has been sealed and returned. Petitioner as well as counsel for the respondents pray for time to argue on the question whether the selection criteria adopted by the Commission was in accordance with law or not?” 7. Thus, the question for consideration is as to validity of selection criteria laid down by the Public Service Commission. 8. Since the petitioner was not represented by counsel, we requested Sh. Puneet Bali, Advocate, who was present in Court, to assist the Court as amicus. We have heard learned amicus for the petitioner, learned counsel for the Commission as also the learned counsel for the State. 9. The criteria laid down by the Commission on 19.7.2002 and adopted for selection held on 25.7.2002 is as under:- “The commission lay down the following criteria for assessing the relative merit of the candidate called for viva-voce examination for the post of Headmasters, in 5 CWP No.3445 of 2003 HES, class-II (Gazetted) School Cadre, Education Department, Haryana:- Total marks of the viva-voce examination: 100 marks I. Personal achievement marks: 25 marks (a) Higher qualification: 10 marks (i) For Ph.D: 10 marks (ii) For M.Phil or M. Ed or both 5 marks (iii) For Post-Graduation in any Subject: 3 marks (B) Experience: 5 marks One marks for each completed year will be awarded for teaching or administrative experience in addition to the experience that is necessary to make a candidate eligible. The maximum marks for experience will be 5 marks. (C) Prize/Awards: 5 marks Candidate who has received National teacher award 5 marks Candidate who has received State teacher award 3 marks Note: Candidate who has received both State & National teacher award will be given maximum 5 marks. (D) Distinction at graduation Level: 5 marks. Candidate who has stood 1st in the University at graduation level 5 marks. 6 CWP No.3445 of 2003 Candidate who has stood 2nd in the University at graduation level 3 marks. Candidate who has stood 2nd in the University at graduation level 2 marks. II. INTERVIEW: The interview test will be conducted to the test the knowledge of the subject, intelligence, awareness, teaching faculty, articulation, expression, speaking ability and other related qualities. There will be 75 marks assigned for this test. They are distributed as under:- (i) Knowledge and awareness: 25 marks (ii) Teaching faculty including articulation, Expression and speaking ability 25 marks, (iii) Intelligence and other qualities 25 marks. For the convenience of marking and realistic assessment, a candidate is categorized as under in consultation with the expert advisor:- Good- 18 - 25 marks Average- 9 - 17 marks Poor - 1 - 8 marks. For qualifying the viva-voce test the candidate must obtain at least 40% marks in Aggregate.” 10. Learned amicus for the petitioner submitted that laying down of selection criteria should have been prior to the selection process and the same should have been made public 7 CWP No.3445 of 2003 before hand. The selection criteria must be fair and reasonable to check subjectivity and arbitrariness. Written test should be required, apart from service record being examined. If the selection was only on the basis of interview, there should be videography to bring about transparency. The sub division should have nexus to the object of selection moreso, when there is question mark on credibility of appointments to the Commission. 11. Reliance has been placed on following judgments:- 1. R.Chitralekha v. State of Mysore and others, AIR 1964 SC 1823 to submit that fair selection requires moral standards of members constituting Selection Committee and objectivity. 2. Janki Prasad Parimoo and others v. State of Jammu and Kashmir, 1973(1) SCC 420 to submit that for the post of Headmaster, efficiency, character, teaching experience, ability to manage class, percentage of successful candidates produced must be taken into consideration. Character and service record of candidates must be before the Selection Committee. 3. Kiran Gupta and others v. State of UP and others, 2000(7) SCC 719 & Inder Parkash Gupta v. State of J&K and others, (2004) 6 SCC 786 to submit that percentage of marks allocated for interview cannot be unreasonably high. Parameters like experience and service record should be given due weightage apart from qualification, general knowledge, personality and administrative ability and achievements in extra curricular activities. 8 CWP No.3445 of 2003 4. Praveen Singh v. State of Punjab and others, (2000) 8 SCC 633 to submit that Selection Committee cannot act arbitrarily and interview as basis of selection is always suspect. 5. Maharashtra State Road Transport Corporation and others v. Rajendra Bhimrao Mandve and others, (2001) 10 SCC 51, K.Manjusree v. State of Andhra Pradesh and another, (2008) 3 SCC 512 and Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11 to submit that rules of game cannot be altered after process of selection has commenced. 6. State of UP and another v. Om Prakash and others, (2006) 6 SCC 474 to submit that higher qualification could be given preference only when other things were equal. 7. K.M.Rashmi Mishra v. MP Public Service Commission and others, 2006(12) SCC 724 to submit that even though written test was for shortlisting, the same should have been taken into account, in addition to interview. 8. Jaskaran Singh Brar v. State of Punjab and others, 2005(1) RSJ 508 (Pb. & Hry.) to submit that criteria for selection will be liable to be set aside if arbitrary and irrational. 9 CWP No.3445 of 2003 9. Vinod Kumar v. State of Rajasthan and others, 2005 (2) SLR 243 (Raj.), & Ms.Suman Rana v. Govt. NCT of Delhi and others, 2005(4) SLR 75 (Delhi) to submit that change of selection criteria after selection process was illegal. 12. Learned amicus further submitted that the selection criteria in the present case cannot be held to be fair and either the same be quashed or the petitioner may be directed to be appointed against one of the available posts. 13. Learned counsel for the State and the Commission opposed the submission and submitted that the selection criteria cannot be held to be unfair. There is no requirement that the criteria must be published in advance. Selection could be without written test. No case was made out for quashing the selection criteria nor direction for appointment of the petitioner was called for. 14. Questions raised can be formulated as follows:- i) Whether interview can be sole basis of selection and if so, whether it is necessary to prepare proper record of interview? 10 CWP No.3445 of 2003 ii) Whether sub division of marks for interview for different heads is a must? iii) Whether criteria adopted in the present case is open to challenge and is illegal? iv) Whether selections are liable to be quashed? v) Whether the petitioner is entitled to a direction for appointment? 15. Before we proceed to deal with the questions, it will be appropriate to have a general overview of the role of Public Service Commissions and scope of interference with their working. 16. Importance of selections to the Government jobs can hardly be overemphasized. The Government machinery has vital role to play in achieving the constitutional goals. Selection at the entry point must ensure induction of best talent to the government service. Constitution has assigned role to the Public Service Commissions to bring about desired transformation from patronage to open competition as the basis for selection. Not only best methods of assessing efficiency and suitability are required to be employed, the Commissions are expected to establish their credentials of being above any 11 CWP No.3445 of 2003 influence. Unfortunately, appointments to the posts of members of the Commission are often subject matter of controversy. Selections made do not inspire confidence on account of apprehension of extraneous influence. Though, the Courts normally exercise restraint in interfering with the selections and particularly with the criteria which may be laid down by an expert body, the Court cannot be oblivious that there has been a steady decline of public standards, public morals and public morale. In such a situation, the Courts cannot and should not remain mute and dumb. (See Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi , (1987) 1 SCC 227, Para 51). We need hardly repeat that selections are required to be made without any extraneous considerations and by using methods which may enable the most meritorious and suitable candidates to be appointed to public posts. No method may be foolproof and in the ultimate analysis it is the sincere effort of the Commission which is crucial. Public posts constitute national wealth and development of the nation is linked to excellence and merit being the basis of selections to public posts. 12 CWP No.3445 of 2003 17. History of evolution of Civil Services in some countries has been disquieting. In France, almost every public office used to be purchasable. The surveys showed that in England, job security brought about inefficiency and lack of devotion. (These developments have been referred to in judgment of the Hon’ble Supreme Court in Mehmood Alam Tariq v. State of Rajasthan, AIR 1988 SC 1451, para 6). 18. In America, the spoils system was in force and appointments were made on political considerations (see observations in State of Bihar v. Upendra Narayan Singh, (2009) 5 SCC 65, Paras 33 to 36). In the said case, unsatisfactory state of affairs of appointments to Public Service Commissions and their functioning has been noticed by Hon’ble Supreme Court thus: “43. In the beginning, people with the distinction in different fields of administration and social life were appointed as Chairman and members of the Public Service Commissions but with the passage of time appointment to these high offices became personal prerogatives of the political head of the Government and men with questionable background have been appointed to these coveted positions. Such appointees have, instead of making selections for 13 CWP No.3445 of 2003 appointment to higher echelons of services on merit, indulged in exhibition of faithfulness to their mentors totally unmindful of their constitutional responsibility. This is one of several reasons why most meritorious in the academics opt for private employment and ventures. 44. The scenario is worst when it comes to appointment to lower strata of the civil services. Those who have been bestowed with the power to make appointment on Class III and Class IV posts have by and large misused and abused the same by violating relevant rules and instructions and have indulged in favouritism and nepotism with impunity resulting in total negation of the equality clause enshrined in Article 16 of the Constitution. 45. Thousands of cases have been filed in the Courts by aggrieved persons with the complaints that appointment to Class III and Class IV posts have been made without issuing any advertisement or sending requisition to the employment exchange as per the requirement of the 1959 Act and those who have links with the party in power or political leaders or who could pull strings in the power corridors get the cake of employment. Cases have also been filed with the complaints that recruitment to the higher strata of civil services made by the Public Service Commissions have been affected by 14 CWP No.3445 of 2003 the virus of spoils system in different dimensions and selections have been made for considerations other than merit.” 19. An administrative or quasi judicial body such as a Selection Committee has normally to be left to devise its own procedure, subject to the same being fair and reasonable. Selection has to be made by assessment of relative merits. It is not necessary to give any reasons for the assessment. Reference may be made to judgments of the Hon’ble Supreme Court in Union of India v. M.L.Capoor and others, AIR 1974 SC 87, National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman, AIR 1992 SC 1806, para 7 and Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1. Though, the selection authority has to be given free play in joints, the power of awarding marks in interview is coupled with the duty to select the best and cannot be exercised arbitrarily. 20. Judicial review is basic structure of the Constitution. Its depth depends on nature of decision. No decision may be exempt from judicial review except decisions such as employment of troops and entering into international treaties 15 CWP No.3445 of 2003 (State of N.C.T. of Delhi v. Sanjeev AIR 2005 SC 2080). Scope of judicial review extends to remedying injustice wherever found. Power exercised by any public authority is for the purpose for which the same is conferred. No authority can function arbitrarily or malafidely. ( Dwarka Nath v. I.T.O. Special Circle, D Ward Kanpur and anr . AIR 1966 SC 81, Hochtief Gammon v. State of Orissa & Ors AIR 1975 SC 2226, Comptroller and Auditor-General of India v. K.S. Jagannathan, (1986) 2 SC 679, Para 18-20, Kumari Shrilekha Vidyarthi etc. v. State of U.P. & ors . AIR 1991 SC 537, Epuru Sudhakar v. Govt. of A.P ., (2006) 8 SCC 161, Rameshwar Prasad (VI) v. Union of India AIR 2006 SC 980, Express Newspapers Pvt. Ltd. V. UOI, AIR 1986 SC 872 and S. Partap Singh v. State of Punjab AIR 1964 SC 72). With expanding scope of judicial review, there are instances of interference even in cases earlier considered to be purely executive functions. In Center for Public Interest Litigation v. Union of India, AIR 2005 SC 4413, appointment of Chief Secretary was set aside with the observation that on sensitive posts, appointments must be transparent and of persons above any suspicion. In Prakash Singh and others v. Union of India and others, 2006(8) SCC 1, directions in the 16 CWP No.3445 of 2003 matter of police reforms were issued. Appointments to Public Service Commissions had to be of persons of integrity. However, in the present case, we are not directly concerned with appointment of members of the Commission but only with the issue of selection being on merits. This is possible only when persons of high integrity are appointed as Chairman or members of Public Service Commission. The observations of the Hon’ble Supreme Court, commenting upon unsatisfactory state of affairs of appointments to the commissions have already been referred to in this regard. 21. In M.V.Thimmaiah and others v. Union Public Service Commission and others, (2008) 2 SCC 119, para 21, principles for judicial review of recommendations of Selection Committee were reviewed and it was observed that scope for interference was limited to situations where selection is actuated by malafides and violation of statutory provisions. After referring to judgments in Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044, P.M. Bayas v. Union of India, (1993) 3 SCC 319, Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417, Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, UPSC v. S. Thiagarajan, (2007) 9 SCC 548,G. Sarana (Dr.) v. University of Lucknow, (1976) 3 SCC 17 CWP No.3445 of 2003 585,Kunda S. Kadam v. Dr. K.K. Soman, (1980) 2 SCC 355,Ashok Nagar Welfare Assn. v. R.K. Sharma, (2002) 1 SCC 749, Union of India v. Mohan Lal Capoor, (1973) 2 SCC 836, Lila Dhar v. State of Rajasthan, (1981) 4 SCC 159, R.S. Dass v. Union of India, 1986 Supp SCC 617, State of U.P. v. Rafiquddin, 1987 Supp SCC 401,UPSC v. Hiranyalal Dev, (1988) 2 SCC 242, Mehmood Alam Tariq v. State of Rajasthan (1988) 3 SCC 241,Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, (1990) 1 SCC 305,National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman, 1992 Supp (2) SCC 481,Indian Airlines Corpn. v. Capt. K.C. Shukla, (1993) 1 SCC 17, C.P. Kalra v. Air India, 1994 Supp (1) SCC 454,Anil Katiyar v. Union of India, (1997) 1 SCC 280,All India State Bank Officers’ Federation v. Union of India, (1997) 9 SCC 151, Union of India v. N. Chandrasekharan, (1998) 3 SCC 694, Inder Parkash Gupta v. State of J&K, (2004) 6 SCC 786, K.H. Siraj v. High Court of Kerala, (2006) 6 SCC 395, it was concluded:- “22. Keeping in view the ratio laid down by this Court in several decisions, now we shall examine the argument of learned Senior Counsel for the appellants which had been addressed. But we may at the very outset observe that the Court while considering the 18 CWP No.3445 of 2003 proceedings of the Selection Committee does not sit as a court of appeal. Courts have limited scope to interfere, either selection is actuated with mala fide or statutory provisions have not been followed.....” 22. From the survey of above case law, it is clear that while Selection Committee can devise its own procedure, the same has to be fair and reasonable having nexus to the object of selecting the best. Criteria adopted by Selection Committee is open to judicial review on well known grounds of illegality, irrationality and impropriety. 23. We now proceed to deal with the questions formulated in para 14. Re.i): 24. There has been debate on the issue of validity of interview as sole basis for selection. Theoretically, interview can be a valid tool and criticism of the same being adopted as a sole basis has been that the same involves subjectivity and its effectiveness depends upon exercise of discretion which is generally misused. Success of this method, like any other method, depends on moral standards of members constituting the committee. Safeguards are, however, required to be 19 CWP No.3445 of 2003 introduced to check arbitrariness and also to ensure transparency. In absence of contemporaneous record being maintained, adoption of test or interview is rendered vulnerable to allegation of nepotism or favourtism and the burden may be on the Commission to satisfy the Court that the selection was fair. If there is contemporaneous record, it may be easier for the Commission to discharge its burden for showing fairness. We may refer to some leading judgments dealing with the validity of interview as a basis for selection and possible safeguards which ought to be adopted. 25. In R.Chitralekha (supra), interview as a basis for selection was tested on the anvil of Article 14 in the light of the contention that the same involved subjectivity, which was open to abuse. Referring to different opinions on the utility of interview as a basis for selection, it was observed that if there is dishonesty in allotting marks to a candidate in interview, there could be a same flaw in awarding marks in written examination. It was observed: “In the ultimate analysis, whatever method is adopted its success depends on the moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty. 20 CWP No.3445 of 2003 This criticism is mere a reflection on the examiners than on the system itself. The scheme of selection, however, perfect it may be on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant objective criteria and entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter. In this case the criteria laid down by the Government are certainly relevant in the matter of awarding marks at the interview. Learned counsel contends that the ability of a student on the basis of the said criteria can be better judged by other methods like certificate from the N.C.C. Commander or a medical board or a psychiatrist