C.W.P No.12077 of 2000 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : February 10, 2009 1. C.W.P No.5720 of 1999 Surinder Kumar and others vs State of Haryana and another. 2. C.W.P No.12077 of 2000 Naresh Kumar and others vs State of Haryana and others. 3. C.W.P No.14272 of 2000 Mohan Lal and others vs State of Haryana and others, 4. C.W.P No.17135 of 2000 Barham Parkash and others vs State of Haryana and others. 5. C.W.P No.1919 of 2002 Jawahar Lal and others vs The State of Haryana and others. 6. C.W.P No.2427 of 2002 Shishpal and others vs State of Haryana and others. 7. C.W.P No.3392 of 2002 Gulab Singh and others vs State of Haryana and others. 8. C.W.P No.16364 of 2006 Avinash Kumar and others vs State of Haryana and others. *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. R.K.Malik, Sr. Advocate with Mr. Yashdeep Singh, Advocate for the petitioners in CWP No.12077 of 2000, Mr. Bahadur Singh, Advocate for the petitioners in CWP No.17135 of 2000 Mr. Anurag Goyal, Advocate for the petitioners in CWP No.1919 of 2002 C.W.P No.12077 of 2000 ::2:: Ms. Alka Chatrath, Advocate for the petitioners in CWP No.2427 of 2002 Mr. G.S.Hooda, Advocate for the petitioners in CWP No.3392 of 2002 Mr. D.S.Patwalia, Advocate for the petitioners in CWP Nos.5720 of 1999 and 16364 of 2006 Mr. O.P.Sharda, Advocate for the petitioners in CWP No.14272 of 2000. Mr.Harish Rathee, Sr. DAG Haryana for the respondents. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This order shall dispose of CWP Nos.5720 of 1999, 12077, 14272, 17135 of 2000, 1919, 2427, 3392 of 2002 and 16364 of 2006 as common questions of law and facts are involved therein. For the sake of convenience, facts are being extracted from CWP No.12077 of 2000. The petitioners have filed the present writ petition for the issuance of a direction to respondent No.3 to declare the result of selection process which had been initiated, and for quashing the decision dated 17.9.2001 (Annexure P-7) by which the Haryana Staff Selection Commission-respondent No.3 (for short “the Commission”) decided to abandon the earlier selection process and to hold a written test for shortlisting the candidates in the proportion of 3:1. On 22.1.1995, 73 posts of Science Masters were advertised but before interviews could be held additional 521 posts of Science Masters were advertised on 7.11.1996. Interviews were subsequently held but before the result could be declared, the same was stayed by this Court by way of interim C.W.P No.12077 of 2000 ::3:: order dated 27.5.1998 passed in CWP No.7653 of 1998. On 30.3.2000, the said writ petition was dismissed. Thereafter, as per the petitioners instead of declaring the result, the impugned decision was taken on 17.9.2001 holding as follows :- “ With the adoption of criteria dated 27.1.1998 and 20.1.1998 for the selection of Science Master/Mistress, Math Master/Mistress and Lecturer Hindi (Female) against Advt. No.1/95, 4/96 and 6/97, a large number of eligible candidates have been deprived of the opportunity to compete against the said posts. The shortlisting criteria by holding the written test is the best method and it provides opportunity to all the eligible candidates unlike the criteria based on academic records which give opportunity to the limited number of candidates. Moreover, the written test is a method of objective assessment of the candidates with no scope of subjectivity. Further for the same posts of Masters/Lecturers (school cadre), the Commission does not consider appropriate to adopt two different types of criteria. The criteria of written test has been applied for the subsequent posts where selection has been finalised or at the stage of finalisation. In view of the totality of the circumstances, the Commission unanimously resolved to hold the written test of all the eligible candidates applied for against Advt Nos. 1/95, 4/96 and 6/97 for the posts of Science C.W.P No.12077 of 2000 ::4:: Master/Mistress, Math Master/Mistress and Lecturer Hindi (Female), for which the result have been complied/yet to be complied. The commission has further decided to hold the written test of these categories as per the following schedule :- Science Master/Mistress =26.11.2001 at Panchkula. Math Master/Mistress =9.12.2001 at Panchkula. Lecturer Hindi(Female) =23.12.2001 at Panchkula.” Learned Senior Counsel for the petitioners has urged that had the interim order not been passed, the result would have been declared and just because the said process was delayed would not give enough reason to the respondents to divert from the earlier criteria dated 30.5.1997. It would be necessary to quote the earlier criteria as under :- “a) Where the Service Rules of the concerned Department prescribe a pre-condition for candidates for a particular post to qualify/pass in a written test, such a test will be held by the Board irrespective of the number of candidates; b) That where a pre-condition of test mentioned in (a) above is not prescribed the selection shall be made by interview alone if the number of candidates does not exceed by about eight times the number of posts to be filled, and (c) That in all the other cases, the applicants shall be short listed either by holding a written test or on the basis of merit based on the weighted score for academic, C.W.P No.12077 of 2000 ::5:: professional, other qualification etc. After the applicants have been placed in the descending order on the above basis, applicants equal to eight times of the number of posts to be filled shall be called for interview. The final selection of the candidate shall be made through the process of interview.” In reply, the respondents have urged that the criteria of having written test cannot be faulted; that this criteria was specifically upheld by a Division Bench of this Court vide order dated 23.5.2001 passed in CWP No.15885 of 2000, Jawahar Lal Goyal and others vs State of Haryana and others, by holding as follows :- “ However, in the present case, there is no change in the criteria, so far as recruitment rules are concerned. Only by virtue of the subsequent order it had been prescribed as to how the short listing of the candidates would be done. Therefore, this argument so much thought, indeed, is without any merit. In fact, we may refer with advantage the decision of this Court in the case of Pushap Lata and another vs State of Haryana and others, Civil Writ Petition No.3692 of 1998 decided on 25.8.98. This Court held that the stage for deciding whether or not all eligible candidates should be called for interview is reached only when the applications are scrutinised. The Board/Commission may invite all of them or short list them. A screening test, therefore, can be held keeping in view the large number C.W.P No.12077 of 2000 ::6:: of applications. The precise findings with which we find ourselves in respectful agreement reads as under :- “...... The stage for deciding whether or not all eligible applicants should be called for final selection is reached only when the applications are scrutinised. Then only the Board/Commission can know the total number of candidates who fulfill the prescribed qualifications. If their number is within the reasonable limit, the Board/Commission may invite all of them for final selection. If the number of eligible candidates is unusually large and the Board/Commission finds it reasonably impracticable to interview all of them. Appropriate mechanism can be devised to reduce the number of candidate to be called for final selection. This can be done either by holding a written/screening test or by making an assessment on the basis of academic and other qualification or by devising other suitable mode. This is precisely what has been done by the Board/Commission in the instant case. Therefore, we are unable to accept Sh. Laler's submission that the impugned criteria has been applied with retrospective effect depriving the petitioners of their vested right to be considered for selection.” The Division Bench also relied upon a notification dated C.W.P No.12077 of 2000 ::7:: 28.7.1998 whereby the Governor of Haryana had made an amendment in the Haryana Government, General Administration Department, General Services, Notification No.523-3GS-70/2068, dated 28.1.70 which permitted the Commission to devise the mode of selection and fix the criteria for selection. It reads as under :- “The 28th July, 1998. No.G.S.R 84/Const/Art.309/98- In exercise of powers conferred by Article 309 of the Constitution of India, the Governor of Haryana hereby makes the following amendments in the Haryana Government, General Administration Department, General Services, Notification No.523-3GS-70/2068, dated the 28th January 1970, namely :- AMENDMENT In the Haryana Government, General Administration Department, General Services, Notification No.523-3GS- 70/2068, dated the 28th January, 1970 in paragraph 6 for sub paragraph (d), the following sub-paragraph shall be substituted and shall be deemed to have been substituted with effect from the twenty eighth day of January 1970, namely :- (d) Method of recruitment and the principles to be followed in making appointments to the Group C and Group D posts under the State Government. The Commission shall devise the mode of selection and fix the criteria for selection of posts for which requisition is C.W.P No.12077 of 2000 ::8:: sent to it by a department or a office, as it may deem appropriate and the criteria for the selection of posts fixed earlier by the Board/Commission shall be deemed to have been fixed under this sub-paragraph.” Learned counsel for the petitioners have relied upon a judgment of the Hon'ble Supreme Court in State of Punjab and others vs Harcharan Singh and others, CA No.3521 of 2006, a judgment of the Allahabad High Court in State of U.P vs Rakesh Kumar (Allahabad) (DB), 2004(1) SCT 34 and a judgment of this Court in CWP No.16376 of 1999, Davender Kumar and others vs State and others, decided on 31.1.2007. In the case of State of Punjab and others vs Harcharan Singh and others' (supra), the dispute was with regard to posts of Lascars wherein selection process was completed but appointment letters could not be issued because of promulgation of the Model Code of Conduct. In those circumstances, the Hon'ble Supreme Court of India held as follows :- “For the reasons aforesaid, we set aside the impugned order of the Division Bench of the High Court. We are, however, of the opinion that since the respondents have been selected by a duly constituted Subordinate Services Selection Board and they could not be appointed because of the ban imposed by the Government, in the fitness of things and in the interest of justice and fair play if the respondents could be accommodated to the posts of Lascars for which they have been duly selected as and when the ban of the Government is relaxed or when the posts are revived. We make it clear that in such event the C.W.P No.12077 of 2000 ::9:: case of the respondents shall be considered first before calling for the fresh candidates by way of advertisement or otherwise.” Even the case of State of U.P vs Rakesh Kumar (supra) deals with a situation where there was no controversy with respect to the recruitment. In the case of Davender Kumar and others (supra), the controversy was with regard to filling up posts of Gram Sachivs, in a situation where selections could not fructify because the Government had abolished octroi and consequently absorbed all those surplus employees as Gram Sachivs. Thereafter fresh posts of Gram Sachivs were sought to be filled up. A Division Bench of this Court held as follows :- “ It may be that in the year 1999, persons selected by the Haryana Subordinate Services Selection Board as Gram Sachivs could not be appointed as Haryana State had abolished Octroi w.e.f 1.11.1999 and had proposed to absorb the surplus staff working for the Octroi in various Municipal Committees, still it is a fact that various writ petitions had been filed in the years 1999 and 2000, which remained pending till this date and by this time, more than 600 posts of Gram Sachivs are available and are to be filled by way of new selection by the Haryana Subordinate Services Selection Board. It cannot at all be said that Gram Sachivs selected by way of duly conducted process in the year 1999, were at fault, in any way. A large number of them had filed writ petitions in C.W.P No.12077 of 2000 ::10:: this Court, which have remained pending and now time has come when the respondent-State have again proposed to fill up the posts now available, which are more in number than the persons so selected in the year 1999. No defect has been pointed out as far as selection process for the posts of Gram Sachivs in the year 1999, is concerned. In the facts and circumstances of the case, it would be appropriate that the candidates selected for the posts of Gram Sachivs in the year 1999 be first absorbed now against available vacancies and then the remaining available posts be filled by further selection process.” It would be noticed that in the above judgments the distinguishing feature is that the selection process had been concluded and results declared, whereas in the present cases this is not so. Learned counsel for the petitioners have further relied upon a decision of the Hon'ble Supreme Court in Hemani Malhotra vs High Court of Delhi, (2008) 2 SCC (L&S) 203, wherein the Hon'ble Supreme Court held as follows :- “14. It is an admitted position that at the beginning of the selection process, no minimum cut-off marks for viva voce were prescribed for Delhi Higher Judicial Service Examination, 2006. The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was C.W.P No.12077 of 2000 ::11:: completed would amount to changing the rules of the game after the game was played. This Court notices that in K.Manjusree v. State of A.P, the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms :- “ 33. The Resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, as stated above. But if the Selection Committee wants to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the C.W.P No.12077 of 2000 ::12:: Selection Committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.” In my opinion, these petitions must fail. It is trite that even a selected candidate does not earn any unequivocal right of appointment. Here the only assertion of the petitioners is that they have been interviewed. Secondly, there is no question of changing the rules, as pointed out in the case of Hemani Malhotra (supra) but the following observations of the Division Bench of this Court in the case of Jawahar Lal Goyal and others' case (supra) would be apposite :- “ It was further urged that the criteria could not be changed after the publication of the advertisement and the application had been received. Even on that count, we find that there is no merit in the said argument. The petitioners had no vested right except the right to be considered. No right of the petitioners is affected because if eligible, they would be competing with similarly situated persons. The criteria, if changed, in C.W.P No.12077 of 2000 ::13:: this light must be held not affecting any right of the petitioners. There are other factors which prompt us to conclude in the same direction. There are no mala fide that have been shown for issuing such a criteria i.e by holding a written test. No prejudice is caused to the petitioners. They have a right to be considered which has not been denied. The criteria has been applied uniformly to all the candidates. Consequently, no fundamental right of the petitioners is being affected nor it can be termed that any unreasonable condition had been imposed to permit this Court to interfere.” Further, a perusal of the earlier criteria (Annexure P-6) would reveal that the said criteria clearly laid down that where a pre-condition of test is not prescribed the selection shall be made by interview alone if the number of candidates does not exceed about eight times the number of posts to be filled. It is no body's case that this was the position in the present case. Much has also been sought to be made from the fact that on an earlier occasion in this case the following order was passed :- “ Learned Advocate General Haryana has stated that the Government will take decision on finalisation of selection within two months. Admitted to be listed for hearing on 8.10.2001.” It is argued that the above statement clearly indicated that the result was to be declared. I am afraid the plain meaning of this statement does not indicate any thing of the sort. The reasons cited in the impugned C.W.P No.12077 of 2000 ::14:: decision (supra) clearly show that a reasoned decision was taken to hold written test and the reasons can by no means be termed as arbitrary. In my opinion, the decision of the Division Bench in the case of Jawahar Lal Goyal and others (supra), completely covers the facts of the present cases. The primary allegations made in the present writ petitions have been considered and repelled in the above judgment, which is binding on this Court. Consequently, these writ petitions are dismissed, however, with no order as to costs. ( AJAY TEWARI ) February 10, 2009. JUDGE `kk'