LPA No.848 of 2014 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: July 08, 2014 LPA No.848 of 2014 (O&M) Sanjay Gupta Appellant Versus Registrar, Punjab and Haryana High Court and others Respondents CORAM: HON’BLE Mr.JUSTICE JASBIR SINGH HON'BLE Mr.JUSTICE HARINDER SINGH SIDHU Present: - Mr.Rajesh Bansal, Advocate for the appellant -- HARINDER SINGH SIDHU,J CM No.1928 of 2014 For the reasons given in the application, delay of 89 days in re-filing the appeal is condoned.
CM stands disposed of.
LPA No.848 of 2014 This appeal has been filed against the judgment of learned single Judge 29.10.2013, whereby, the writ petition filed by the appellant has been dismissed.
The facts, in brief, are that vide advertisement dated 02.08.2008, respondent No.2 had invited applications for 57 posts of Clerk for appointment on temporary basis in Sessions Division Ambala.
The selection for these posts was to be made strictly in accordance with (Recruitment and Atul Kumar Tripathi 2014.07.25 10:52 I attest to the accuracy and integrity of this document Chandigarh LPA No.848 of 2014 (O&M) -2- General Conditions of Services) Rules, 1997.
Candidates were required to possess a degree of Bachelor of Arts or Bachelor of Science or equivalent thereto and also to have passed Hindi as a subject in the matriculation examination.
Candidates would be required to take a written examination in two subjects English Composition and General Knowledge of 50 marks, each.
The qualifying marks were 33% in each subject with an aggregate of 40%.
Additionally, the candidates were required to be having “proficiency in operation of computers”.It was stated that the select list of the candidates prepared on the basis of merit shall remain in force for a period of one year from the date of declaration of result.
The number of vacancies was liable to increase or decrease.
The appellant being eligible appeared in the written examination held on 02.11.2008.
He was, subsequently, called to take proficiency test in operation of computer on 25.01.2009 in Kalpana Chawla Government Polytechnic for Women, Ambala City.
Seventy three persons were selected and appointed clerks pursuant to this process.
However, the appellant was not amongst those selected.
He and another unsuccessful candidate filed writ petition challenging the selection.
It was alleged that during conduct of written examination on 02.11.2008, large scale copying, unfair practice and unfair means took place.
It was further stated that photostat question papers consisting of 8 pages instead of Atul Kumar Tripathi 2014.07.25 10:52 I attest to the accuracy and integrity of this document Chandigarh LPA No.848 of 2014 (O&M) -3- printed question papers were given to the candidates.
It was alleged that these photostat question papers were got prepared by some employees i.e.Steno, Nazir, Accountant and Ex.
Reader of the District Courts, who were able to pilfer one question paper and use it to help their relations in being selected.
In this regard, the names of wife of Steno, his brother's wife, sister and sister's son of the Nazir, a son of the Clerk and two daughters of the Ex.
Reader were mentioned.
It was stated that no Judicial Officer was assigned duties to supervise the conduct of the written examination and the employees of the office had a field day in helping their nears and dears with unfair means at the time of the written examination.
In this regard mention was made of one employee Mr.Batish, who was suspended having been found helping in the use of unfair means at the time of written examination.
It was also stated that no Judicial Officer was deputed for the purpose of getting the question paper photocopied and that in the time available for photocopying, it was not possible to get the required number of copies papers photocopied.
Grievance was also made that candidates who had no knowledge of computers were selected in the face of the requirement of sub-rule (vii) (c) and (e) of Rule 7 which requires proficiency in operation of computers whereas, the appellant having qualification of PGDCA (Post Graduate Diploma in Computer Application) was inexplicably not Atul Kumar Tripathi 2014.07.25 10:52 I attest to the accuracy and integrity of this document Chandigarh LPA No.848 of 2014 (O&M) -4- selected.
Grievance was also raised regarding awarding of marks for written/practical and 15 marks for viva voce in relation to the test for the proficiency in the operation of the computer by contending that there is no provision in the rules for giving marks in testing the proficiency in operation of computer.
It was stated that despite an application submitted under RTI Act, 2005 seeking information of documents relating to selection and appointment of 73 Clerks, the said information was not supplied and hence, the petition had been filed without impleading all the selected candidates.
Prayer was made for quashing the selection.
In the written statement filed by respondent Nos.1 and 2, all the allegations were controverted.
The contention of the appellant that no Judicial Officer had been appointed in the examination centre was controverted by making reference to the order dated 29.09.2008, whereby, respondent No.2 had intimated the Judicial Officers that their services would be required for the conduct of examination and they should remain present on 02.11.2008.
A copy of the duty roster along with mode of written examination and details of Centre along with the Centre Incharge was circulated to all the Judicial Officers on 25.10.2008.
As per this, one Additional District and Sessions Judge was appointed as Centre Incharge and two Judicial Magistrates were appointed to assist the Centre Incharge.
Atul Kumar Tripathi 2014.07.25 10:52 I attest to the accuracy and integrity of this document Chandigarh LPA No.848 of 2014 (O&M) -5- Denying the claim of the appellant that the task of preparation of photocopies of the question papers was assigned to the Nazir Clerk, and other employees of the Session Division, who were able to pilfer a copy of the question paper and help their relations to get selected, it was stated that on 01.11.2008 an order was passed vide which, one Additional District and Sessions Judge Ambala and one Judicial Magistrate, 1st Class, Ambala were assigned the duties of supervising the process of preparation of the question papeRs.These two officers remained with the two persons, who were operating the Xerox Machines throughout the process, which commenced at 2:00 pm on 01.11.2008 and ended at mid-night.
No persons other than these two officers and two persons operating the photostat machines had any access to the question papeRs.which were sealed in different boxes as per requirement of the different centres.
The allegation of any cheating and mal-practice at the examination centre was denied and it was stated that the examination was conducted in the presence of Judicial OfficeRs.who were assigned their duties at the centres and maintained complete control over the conduct of the examination.
Only one incident of a staff member trying to help a candidate was noticed and action was taken immediately in that case.
The assignment of marks for practical examination and viva voce for testing the proficiency of candidates in operation of computer was sought to be Atul Kumar Tripathi 2014.07.25 10:52 I attest to the accuracy and integrity of this document Chandigarh LPA No.848 of 2014 (O&M) -6- justified by reference to an order dated 22.01.2009 in which it was observed that since no detailed criteria had been specified in the rules for testing the proficiency of candidates in operation of computer so with a view to conduct a fair test it was decided that a practical examination as also viva-voce should be conducted.
It was stated that the criteria had been fixed after due consultation with the Hon'ble Administrative Judge of Ambala Sessions Division.
Further vide communication dated 22.01.2009, permission was sought from the Hon'ble High Court to conduct the computer proficiency test, which was duly granted by High Court vide its communication dated 24.01.2009.
The said test was held on 25.01.2009 at Kalpana Chawala Government Polytechnic for Women, Ambala City.
The conduct of the test was supervised by Committee comprising District and Sessions Judge, Ambala, one Additional District and Sessions Judge, Ambala and one Additional Civil Judge, Ambala.
The result was declared on 02.02.2009 and the list of selected candidates was displayed on the notice board.
However, an error was detected in totalling of the marks, which was corrected and a revised list displayed on 06.02.2009.
In the written statement objections were also raised regarding the maintainability of the petition on the ground that the appellant had participated in the selection process and could not thereafter turn around and question the selection process.
It was further contended that if the Atul Kumar Tripathi 2014.07.25 10:52 I attest to the accuracy and integrity of this document Chandigarh LPA No.848 of 2014 (O&M) -7- appellant was aware of any irregularity in conduct of written examination, he should have sought redress thereof through legal or administrative channels and not waited till completion of the selection process after the conduct of the computer proficiency test.
It was stated that there was a gap of more than two months between the holding of the written examination and the conduct of the Computer proficiency test.
The appellant should have raised his grievance in this period.
The appellant filed replication to the written statement in which the only material aspect pointed out was that as per their calculation, it would not be possible to prepare the required 2180 question papers in the time mentioned in the written statement i.e.from 2:00 pm on 01.11.2008 to mid- night of the same day.
As per the averments of the appellant, it would take at least 30 hours to photostat 2180 question papers of 8 pages, to arrange them, staple them and make bundles of 500 question papers each.
It was further pointed out that from the written statement, it is not clear whether while seeking its permission for conduct of the computer proficiency test, the Hon'ble High Court had been appraised that the proposed proficiency test would comprise of written examination of 10 marks and viva voce of 15 marks.
Rejoinder to the replication was filed in which it was demonstrated that with the high speed xerox machines available for the purpose, the time required for photocopying Atul Kumar Tripathi 2014.07.25 10:52 I attest to the accuracy and integrity of this document Chandigarh LPA No.848 of 2014 (O&M) -8- the requisite number of pages would come to 11 hours 41 minutes and as two machines were used, the time required was 5 houRs.50 minutes and as averred in the written statement, two Judicial Officers and two Operators remained engaged in the process of preparing question papers from 2:00 pm to mid-night which comes to 10 houRs.The contention in the replication that the High Court was not appraised about the award of marks for the proficiency test of computer was denied.
Based on the aforementioned pleadings, the arguments of the learned counsel for the appellant did not find favour with the learned Single Judge.
The contention of the learned counsel for the appellant is that appointment of 73 persons against the advertised 57 was illegal as appointments in excess of advertised posts was legally impermissible was repelled by referring to the public notice which stipulated that the number of vacancies were liable to increase or decrease.
Further reference was made to Rule 7 as per which the select list was to remain in force for one year and all vacancies which arose within that year could be filled in from the select list.
The Ld.
Single was satisfied with the explanation in the rejoinder that the time spent in preparing the photopies was more than sufficient to comfortably accomplish the task and hence the contentions of the appellant on this count were Atul Kumar Tripathi 2014.07.25 10:52 I attest to the accuracy and integrity of this document Chandigarh LPA No.848 of 2014 (O&M) -9- rightly rejected.
The allegations of cheating and mass copying were negatived by the Ld.
Single Judge on various grounds, namely, the appellant remained silent for more than two months after the conduct of the written examination, took a chance for being selected by participating in the computer proficiency test and only on being unsuccessful, turned around and questioned the process.
Having thus taken, their chances they must be held to have lost their remedies.
It was stated that the allegations though serious at their face value but have remained unsubstantiated.
Even though appointment of relatives raises grave suspicion, but suspicion cannot take the place of proof.
Besides, there is no reason to disbelieve that the Judicial Officers did not remain in charge and supervised the conduct of the examination.
Since the appellant had averred otherwise.
It was concluded that these allegations were the result of an afterthought and hence not credible.
Regarding the contention of the appellant that there was no provision in the Rules for the award of marks for the conduct of computer proficiency test, the Ld.
Single Judge held that as the relevant rule spelt out a requirement of testing of proficiency in operation of ComputeRs.the award of marks for the same was supplemental to the rule and did not supplant it.
It appeared to a step towards a fairer selection of recruiting the best available talent.
In any event, no prejudice was Atul Kumar Tripathi 2014.07.25 10:52 I attest to the accuracy and integrity of this document Chandigarh LPA No.848 of 2014 (O&M) -10- caused to any candidate as it was applied uniformly to all the candidates.
Further the award of marks were authorized by the Administrative Judge of the Ambala Sessions Division.
The same contentions have been raised before us.
In our view these have been rightly rejected by the Ld.
Single Judge.
Thus there is no ground to interfere with the judgment of the Ld.
Single Judge.
This appeal is accordingly dismissed.
(JASBIR SINGH) (HARINDER SINGH SIDHU) JUDGE JUDGE0807.2014 Atul Atul Kumar Tripathi 2014.07.25 10:52 I attest to the accuracy and integrity of this document Chandigarh