IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 10940 of 1996 (O&M) Date of decision: November 6, 2009 Krishan Gopal and others ...Petitioners Versus State of Haryana and others ...Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. G.P. Singh, Advocate, Mr. Harsh Bunger, Advocate, Mr. Mukesh Yadav, Advocate for Mr. Jaivir Yadav, Mr. C.M. Chopra, Advocates, for the petitioners. Mr. Rajiv Atma Ram, Senior Advocate with Mr. Saurabh Arora, Advocate, Mr. G.K. Chatrath, Senior Advocate with Mrs. Anu Chathrath and Ms. Alka Chathrath, Advocates. Mr. Vivek Sharma, Advocate, for the respondents. Adarsh Kumar Goel,J. 1. This order will dispose of a bunch of 47 petitions being CWP No. 16978 of 1995, CWP Nos. 884, 2560, 4261, 4779, 4780, 5444, 5448, 5449, 5469, 5506, 5539 to 5541, CWP No.10940 of 1996 (O&M) 5572, 5677, 6177, 6259, 6472, 6543, 6891, 6892, 7523, 7618, 7638, 8152, 8328, 8379, 9363, 10860, 10861, 10888, 10940, 10979, 10998, 11191, 12143, 12895, 12896, 12897, 13169, 13751, 14015, 15382, 15412, 16628 of 1996 and CWP No. 15412 of 1997, which has been placed before this Bench in pursuance of the order of learned Single Judge dated 11.2.2009 to the following effect:- “These matters have been received back from Hon'ble the Supreme Court by way of remand. In the remand order, Hon'ble the Supreme Court held as follows:- “The two judgments, namely, the judgment passed in Neelam's case (supra) and the judgment impugned in the present appeals are contradictory on the question of interpretation of para 6 (d) though one of the Hon'ble Judges figures in both the judgments. Normally, we would have resolved the conflict, but one Hon'ble Judge being common both the judgments, we intend to leave the matter to the High Court itself to reconsider the whole position, particularly as some other infirmities in the judgment have been pointed out to us to which a reference shall be made presently.” In these circumstances, papers are directed to be laid before Hon'ble the Chief Justice for 2 CWP No.10940 of 1996 (O&M) constituting an appropriate Bench to settle this question conclusively.” 2. The matter arises out of challenge to selection to 258 posts of Lecturers (School Cadre) in pursuance of advertisements dated 22.1.1995 followed by further notification dated 10.10.1995. The selection was challenged in various writ petitions in this court and were dealt with by four separate orders, namely: (1) Order dated 4.11.1996 in CWP 19062 of 1995 (Krishna Kumari Versus State of Haryana and others); (2) Order dated 18.2.1998 in CWP No. 17053 of 1997 (Smt. Neelam v. The Subordinate Services Selection Board and others); (3) Order dated 18.5.1998 in CWP No. 10940 of 1996 (Krishan Gopal and others Versus State of Haryana and others) and; (4) Order dated 25.8.1998 in CWP No. 3692 of 1998 (Pushap Lata and another Versus State of Haryana and others). 3. While judgments in Krishna Kumari, Neelam and Pushap Lata (supra) upheld the selection, in Krishan Gopal (supra), selection was quashed. 3 CWP No.10940 of 1996 (O&M) 4. Main reason for quashing was that Selection Board could not have itself framed criteria for selection when such criteria had not been laid down by the Government. It was also observed that Chairman of the Board did not convene any meeting for evolving the criteria and the criteria was laid down much before the advertisement was published. Selection criteria was applied only for certain categories of posts and not for others. Apart from this aspect, after perusing the record, it was found that no objective consideration was given to the performance of the candidates with reference to important elements like, initiative, alertness, resourcefulness, dependableness, capacity for clear and logical presentation, adaptability, aptitude for the post etc. Statement of counsel for the State was also recorded that Chairman and Members of the Board had not awarded marks to the candidates on the basis of any objective yardstick, nor it was clear whether any weightage was given to the opinion expressed by the expert and, thus, marks were awarded for extraneous consideration and thus selection was tainted and malice. 5. According to learned counsel for the parties, judgments in Krishna Kumari, Neelam and Pushap Lata (supra) have attained finality, while appeals were filed against 4 CWP No.10940 of 1996 (O&M) judgment in Krishan Gopal (supra), by the aggrieved parties before the Hon'ble Supreme Court being Civil Appeals No. 516-527 of 2009, Jaipal Singh and others v. State of Haryana and others, decided on 18.2.2000. 6. The Hon'ble Supreme Court remanded the matter to this Court for fresh decision with the observation that conflicting views on interpretation of para 6(d) of notification dated 28.1.1970, issued by the State of Haryana under Proviso to Article 309 of the Constitution, laying down functions of the Subordinate Services Selection Board may be resolved by this Court. It was also noticed that after judgment of this Court dated 18.5.1998, amendment was made to para 6(d) with retrospective effect, on 28.7.1998, clarifying that the Commission could lay down selection criteria. It was also observed that by judgment in Krishna Kumari (supra) selections were upheld but by judgment in Krishna Gopal (supra), the same were set aside and this aspect should also be examined by this Court. Apart from these two aspects, additional points could also be gone into if necessary by amendment of pleadings. 7. Thus, we have to go into following issues:- 5 CWP No.10940 of 1996 (O&M) (i) Interpretation of para 6(d) of notification dated 18.1.1970 issued by the State of Haryana under Proviso to Article 309 of the Constitution laying down functions of Subordinate Services Selection Board and resolve conflict in the view taken in Neelam (supra) on one hand and in Krishna Gopal (supra) on the other; (ii) Resolving conflict in the view taken in Krishna Kumari (supra), upholding selections and Krishna Gopal (supra) quashing the selections; (iii) Other points raised by the parties. 8. We have heard learned counsel for the parties. Re: (i) 9. Learned counsel for the respondents point out that conflict on interpretation of para 6(d) already stands resolved against the petitioners by judgment of this Court in Pushap Lata (supra) wherein apart from holding that the Commission had the authority to lay down criteria for selection under para 6 (d), amendment dated 28.7.1998 with retrospective effect was also referred to and upheld. We find this to be so. In the said judgment, after referring to earlier judgments in Neelam Rani (supra) and Krishan Gopal (supra), it was observed:- 6 CWP No.10940 of 1996 (O&M) “A bare reading of the notification shows that the Board has been empowered to formulate methods of recruitment and to lay down the principles to be followed in making appointments to Class III and Class IV posts. The expression methods of recruitment and the principles to be followed in making appointments is wide and pervasive. It takes within its reach the power to frame appropriate criteria for making selection for the purpose of appointment. Therefore, we do not find any substance in Shri Laler’s argument that the commission could not frame the criteria for the purpose of shortlisting of the candidates. Xx xxx xxxxx In view of the above discussion and the notification dated 28.7.1998, the respondent- Commission can now legitimately exercise its power to reduce the number of candidates to be called for viva voce from among those who had applied for recruitment and also lay down the criteria for selection and it can no longer be argued that every person who fulfils the qualifications prescribed for recruitment to a particular post, has the right to be considered for final selection.” 10. We, thus, hold that the Board had the competence to lay down the criteria, as earlier held in Neelam and Pushap 7 CWP No.10940 of 1996 (O&M) Lata (supra). View taken in Krishan Gopal (supra) has already been explained in Pushap Lata (supra). Therefore, the view in Krishan Gopal (supra) is not correct. Re: (ii) 11. Finding of this court in Krishna Kumari (supra) is as under:- “In our opinion, the petitioner has failed to lay sound factual basis for raising the plea that selection is vitiated due to arbitrary award of marks. Indeed, she has not come forward with any allegation of mala fide against the person who is said to have interviewed her and other eligible candidates. In the absence of any such allegation we are not inclined to make a roving enquiry to uphold the plea of the petitioner regarding arbitrariness in the award of marks. The petitioner's plea regarding high allocation of marks for interview deserves to be rejected in the light of the pronouncement of the Supreme Court in Anzar Ahmad vs. State of Bihar and others, 1993 AIR SCW 3777 in which allocation of 50% marks for interview has been upheld by the Supreme Court by placing reliance on the observations made in Liladhar vs. State of Rajasthan, AIR 1981 SC 1777, State of U.P. vs. Rafiquddin, AIR 1988 SC 142, 8 CWP No.10940 of 1996 (O&M) Mohmood Alam Tariq vs. State of Rajasthan, AIR 1988 SC 1451 and Mohinder Sain Garg vs. State of Punjab, 1991 (1) S.C.C. 662. As similar issue has been examined by us in Santosh Bala and Anr. Vs. State of Punjab and others, C.W.P. No. 10770 of 1996 decided on 14.10.1996 and it has been held that selection cannot be nullified merely on the ground of slightly higher percentage of marks for interview. Moreover, we have ourselves perused the original sheets in which marks have been awarded to the candidates who had appeared for interview and we find that all the candidates have been allocated marks for their academic attainments, experience and performance at the time of interview. The petitioner is miserably off the target in raising a boggy of selection by the single member. These sheets shows that in fact the Chairman and the two members of the Board had interviewed the candidates. Each of the sheets has been signed by three persons dispelling any possibility of manipulation by one person. We, therefore, do not find any infirmity in the selection made by the Board.” 12. Without referring to the above finding, in Krishan Gopal, it was observed:- 9 CWP No.10940 of 1996 (O&M) “...A minute scrutiny of the records shows that as per the criteria allegedly followed by the Selection Committees, every candidate possessing minimum prescribed qualifications secured at least 40 marks for the qualifications. Thus, the marks allocated for the viva voce test acquired immense importance. Rather, these marks became the sole determining factor the purpose of selection. Thus, it was the duty of the selection Committees and the Board to have thoroughly scrutinized the performance of the candidates at the time of viva voce test keeping in view the elements like,initiative, alertness, resourcefulness, dependableness, capacity for clear and logical presentation, adaptability, aptitude for the post etc. Although the failure of the Selection Committees to allocate marks under different sub heads may not vitiate the selection, but complete absence of objective consideration of these important elements give rise to an inference that the allocation of marks has been due to extraneous reasons and, therefore, selection is vitiated by arbitrariness. The record produced by the learned Deputy Advocate General does not give any indication of consideration of these para-meters at the time of viva voce though by and large marks allocated in the viva voce test have led to the inclusion of the most of the selected candidates in the merit list. We, therefore, hold that the recommendations made in favour of the selected 10 CWP No.10940 of 1996 (O&M) candidates are violative of Articles 14 and 16 of the Constitution.” 13. Learned counsel for the selected candidates submitted that the selected candidates have already worked for 14 years and once a view had been taken on merits in favour of validity of selection, contrary view in Krishan Gopal (supra) was not called for. It is submitted that inference of absence of objective criteria was not well founded and was without any adequate material. 14. We are of the view that having regard to the time which has gone by and there being two views possible on fairness of the selection, interference at this stage will not be called for, particularly having regard to the fact that earlier view in favour of the selection has attained finality. We, thus, reiterate view taken in Krishna Kumari (supra) and find that the view in Krishan Gopal (supra) is not correct. Re: (iii) 15. Learned counsel for the petitioners refers to judgment in Krishan Gopal (supra) and adopts the finding in favour of the petitioners in that case as his submissions. The said findings are mainly recorded at pages 47 and 48 of the 11 CWP No.10940 of 1996 (O&M) said judgment. First part deals with the procedure adopted by the Board and the second with regard to the failure to adopt objective criteria. 16. Following questions were posed by the Bench:- “(i). Why the Board did not ask the government to frame criteria for the purpose of making selection ? (ii) Why the Chairman of the Board did not convene the meeting of the Board for the purpose of evolving the criteria and for constituting the selection committees ? (iii) How the Board could frame criteria on 27.5.1995 for making selections against the posts notified vide advertisement no. 7 of 1995 which was published in the newspapers dated 10.10.1952 ? (iv) Why the criteria dated 23.4.1995 or 27.5.1995 was used for making selections only against five categories of posts out of 15 categories (male and female) notified vide advertisement no.1 of 1995 ? (v) Why undated criteria was used for the purpose of making selections in respect of the remaining vacancies ? 12 CWP No.10940 of 1996 (O&M) It was observed that none of these questions have been answered by the respondents. 17. In view of our finding on question (ii), question (iii) does not survive and has to be held against the petitioners. Impugned selections are, thus, not liable to be quashed. 18. The writ petitions are dismissed. (Adarsh Kumar Goel) Judge (Hemant Gupta) Judge November 6, 2009 (Gurdev Singh) ‘prem/gs Judge Note:- Whether this case is to be referred to the Reporter ..... Yes/No 13