Judgment:
C.W.P.No.14234 of 2012 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.14234 of 2012 Meghna Gill ..........Petitioner Versus Deen Bandhu Chhotu Ram University ..........Respondents of Science and Technology and others DATE OF DECISION: 30.6.2014 BEFORE:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY Present:- Mr.J.S.Maanipur, Advocate for the petitioner.
Mr.Satyawan Ahlawat, Advocate for respondents No.1 and 2.
Mr.Tribhuwan Dahiya, Advocate for respondents No.3 and 4.
**** DAYA CHAUDHARY, J.
The present petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing the appointment of respondents No.3 and 4 to the post of Assistant Professor in the Department of Electrical Engineering, which has been made without adopting any criteria and contrary to the law laid down in various judgments of Hon'ble the Apex Court and also the judgment of this Court in Ram Chander versus Maharshi Dayanand University, Rohtak and others 2011 (2) RSJ599 Briefly, the facts of the case as made out in the present petition are that an advertisement for inviting applications to the post of Assistant Professor in Electrical Engineering was published.
In response to said advertisement, total 46 candidates appeared and were interviewed by the Selection Committee including the petitioner.
Respondents No.3 and 4 were selected by Selection Committee finding to be more meritorious viz-a- Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (2) viz petitioner.
An information was sought by the father of the petitioner under Right to Information Act whereby the details of the qualifications and experience of selected candidates were supplied.
It was also mentioned that there was no criteria and only on the basis of suitability and performance of the candidates in the interview, the selection was made.
The list of members of the Selection Committee as well as proceedings of the Selection were also supplied.
The selection of respondents No.3 and 4 has been challenged by the petitioner in the present petition by raising various grounds.
Learned counsel for the petitioner contends that no criteria was formulated/circulated by the respondent-University as well as by the Selection Committee and the selection was made on the basis of pick and choose policy without taking into consideration the academic qualification and the respective merit of the candidates.
Learned counsel further contends that the petitioner is more meritorious than the selected candidates not only on the basis of academic qualification but in experience as well.
Learned counsel for the petitioner has also relied upon the judgments of this Court in Babita Rani versus Punjabi University, Patiala and others 2012 (1) RSJ623as well as Ram Chander's case (supra) in support of his contentions.
Learned counsel for respondents No.1 and 2 submits that there are no allegations of mala fide against the members of the Selection Committee as selected candidates were possessing the prescribed qualification as required in the advertisement and the selection was made on the basis of performance of the candidates in the interview.
Learned counsel further submits that the recommendations of the Selection committee have been accepted by Executive Council and thereafter Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (3) appointment letters have been issued to the selected candidates.
There is no illegality or irregularity in the selection process in any manner.
Learned counsel also submits that the petitioner has no right to challenge the selection as she has already participated in the interview.
Learned counsel has also relied upon the judgments of this Court in Krishan Gopal and others versus State of Haryana and others 2010 (8) SLR556 Minakshi Sharma versus State of Haryana and others 2009 (2) SLR632 Dr.
Ashwani Kumar Dalal versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others 2011 (2) SLR509 Bharat Bhushan versus Chandigarh Administration and others 2011 (1) SLR24as well as of Hon'ble the Apex Court in National Institute of Mental Health and Neuro Sciences versus Dr.K.Kalyana Raman 1992 (3) SCT488and Basavaiah (Dr.) versus Dr.
H.L.Ramesh and others (2010) 8 SCC372 in support of his contentions.
Learned counsel for respondents No.3 and 4 submits that the selected candidates were found most suitable and meritorious on the basis of their performance during the interview.
Neither there are any allegations of malafide against the members of the Selection Committee nor there was any illegality or irregularity in any manner.
Both the candidates were having requisite essential qualifications and experience in teaching.
In addition to that, their performance in the interview was also very good and on the basis of that respondents no.3 and 4 were selected.
Learned counsel has also relied upon the judgments of Hon'ble the Apex Court in University of Jammu versus T.S.Khan and others 2011 AIR (SC) 1788, Dr.
Keshav Ram Pal, Reader and Head of Sanskrit Department and Offg.
Principal, Lajpat Rai Post-Graduate College, Sahibabad, District Gaziabad UP versus UP Higher Education Services Commission, Allahabad Pooja Sharma and others (1986) 1 SCC671 Basavaiah (Dr.) versus Dr.
H.L.2014.07.03 12:08 C.W.P.No.14234 of 2012 (4) Ramesh and others (2010) 8 SCC372and Dhananjay Malik and others versus State of Uttaranchal and others (2008) 4 SCC171as well as of this Court passed in C.W.P.No.10742 of 2010 (Reecha Madan versus AICTE through its Chairman and otheRs.decided on 22.7.2010 and LPA No.1120 of 2011 (Dr.
Munish Garg versus Dr.
Suresh Kumar and otheRs.decided on 31.10.2011, in support of his contentions.
Heard the arguments advanced by learned counsel for the parties and have also gone through the documents available on file and also original record of the selection process produced at the time of arguments.
Admittedly, an advertisement for selection to the post of the Assistant Professor in Electrical Engineering was issued.
In total 46 candidates appeared and were interviewed by the Selection Committee including the petitioner on 27.3.2012.
Respondent Nos.3 and 4 were selected on the basis of recommendations of the Selection Committee.
The selection of respondents No.3 and 4 has been challenged by the petitioner on the ground that no criteria was adopted and without taking into consideration the academic merit of the candidates, the selection has been made, whereas the petitioner claims to be more meritorious than the selected candidates.
As per advertisement, the following qualification/experience was required for the post of Assistant Professor:- “i.
Essential FiRs.Class Master Degree in the appropriate branch of Engineering (Engg.) and Technology (Tech.) ii.
Without prejudice to the above, the following conditions may be considered desirable: 1.
Teaching, research industrial and/or professional experience in a reputed organization; Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (5) 2.
Papers presented at Conferences and/or in referred journals.”
.
The qualification and experience, respectively, of the petitioner is as under:- Sr.Description Percentage of Year of passing No.marks secured 1 10th 87.60% 1996 2 10+2 73.00% 1998 3 B.
Tech (Electrical Engg.) 80.70% 2002 M.
Tech Electrical Engg.
8.462 CGPA With Specialization in Power 4 System.
2010 Sr.Description of Experience Tenure Total No.Experience 1 Teaching Experience in NIT, a) 25.3.2003 to 1 year 3.5 Kurukshetra 13.6.2003 months b) 26.8.2003 to 12.12.2003 c) 8.1.2004 to 14.5.2004 d) 28.7.2004 to 31.12.2004 2 Industrial Experience in 31.10.2006 till 5.5 yeaRs.Delhi Transco LTD.(Govt.
of date NCT, Delhi) The qualifications and experiences of respondents No.3 and 4 are as under:- Sr.Name of the Exam passed Percentage Experience No.Candidate of marks 1 Deepika B.Tech.
72.40% 1.
SBMN M.Tech.
62.1% Engg.
as a Lecturer from 8.2.2008 to 16.8.2009.
Specialization : Power System and Design Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (6) Sr.Name of the Exam passed Percentage Experience No.Candidate of marks 2 Ravi B.
E6950% Working as M.
Tech.
78.5% Asstt.
Prof.
in Hindu College of Engineering, Sonepat from 12.1.2011 to till date (11 months) Details of Research publication: 1.
National Conference- 01 2.
Workshop- 03 Specialization : Power System An information was sought by the petitioner under RTI as to what was the criteria for assessment of the merit of the candidates.
It was informed that the candidates were selected on the basis of suitability and performance.
On perusal of the original record, it has been found that no marks were awarded to the candidates who appeared in the interview including the selected candidates i.e.respondents No.3 and 4.
Simply it has been mentioned that suitability of the candidates was adjudged by the Selection Committee on the basis of qualification and performance at the time of interview.
It is also clear from the minutes of the meeting of the Selection Committee dated 27.3.2012 that only the list of candidates who were recommended in order of merit for selection to the post of Assistant Professor of different categories has been prepared and the same has been signed by the members of the Selection Committee.
Nowhere it has been mentioned as to on what basis these candidates were recommended.
Neither any grading of the performance has been made nor any criteria Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (7) whatsoever has been adopted.
No comparative merit list of the candidates has been prepared by the Selection Committee.
Even no efforts have been made by the Selection Committee to show in the recommendation that these candidates were found more meritorious than other candidates including the petitioner on the basis of academic merit plus experience and performance in the interview.
Respondents No.3 and 4 were selected against General Category and their selection has been challenged only by the petitioner and not by other candidates.
It is not disputed that selection can be made on the basis of performance in the interview only but it is required that members of Selection Committee form their opinion on the basis of merit, academic qualification as well as performance in the interview.
It is not clear as to how respondents no.3 and 4 have been found suitable viz-a-viz petitioner and other candidates.
On perusal of academic qualifications of the petitioner viz-a-viz respondents No.3 and 4, it is apparent that petitioner is having more than 80% marks in B.
Tech.
and more than 84% marks in M.
Tech, whereas, respondent No.3 is having 72.4 % marks in B.
Tech.
And 62.1.% marks in M.Tech.
Similarly, respondent No.4 secured 78.5% marks in M.
Tech.
and 69.5% marks in B.E.The controveRs.in the present case is squarely covered by the decision of this Court in C.W.P.No.18735 of 2009 (Dr.
Sunil Kumar and others versus Punjabi University and otheRs.decided on 23.8.2011.
LPA was also filed by the respondent-University, which was also dismissed by this Court on 14.11.2011.
In Dr.
Sunil Kumar's case (supra).it has been held as under:- “There is no dispute with regard to selection only on the basis of interview.
Although much debate has taken place on the issue of validity of interview when the selection is sole basis of Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (8) interview but effectiveness depends upon exercise of discretion.
Safeguards are there which required to be adopted to check arbitrariness and also to ensure transparency.
In absence of such transparency and objectivity, the criteria of assessing the suitable candidates on the basis of an interview only, there is always a criticism in case the interview is conducted in an objective manner either on the basis of allotment of marks/grades (grading) and the outcome of that assessment is away from any suspicion on the basis of respective merit of the candidates appearing before the interview.
In R.Chitralekha v.
State of Mysore and others AIR1964SC1823it was observed as under: “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.
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 Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (9) judged by other methods like certificate from the N.C.C.Commander or a medical board or a psychiatrist and should not be left to a body like the selection committee which cannot possibly arrive at the correct conclusion in a short time that would be available to it.
The criticism does not affect the validity of the criteria, but only suggests a different method of applying the criteria than that adopted by the Committee.
It is not for us to say which method should be adopted: that must be left to the authority concerned.
If in any particular case the selection committee abuses its power in violation of Art.
14 of the Constitution, that may be a case for setting aside the result of a particular interview, as the High Court did in this case.
We cannot, therefore, hold without better and more scientific material placed before us that selection by interview in addition to the marks obtained in the written examination is itself bad as offending Art.
14 of the Constitution.”
.
Similarly in Ajay Hasia v.
Khalid Mujib Sehravardi, AIR1981SC487 it was observed that oral interview was not satisfactory and should not be relied upon as exclusive test but should be only additional or supplementary test for assessing calibre of candidates.
It was also observed that to bring about transparency, tape recording of interview may be done to eliminate any controveRs.and to have a check on possible arbitrariness.
Similarly in D.V.Bakshi and others v.
Union of India and others AIR1993SC2374it was observed that element of subjectivity can be checked, if proper record is maintained and marks are awarded under Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (10) separate heads.
The relevant observations are as under: “If an oral test is, therefore, a 'must' as in this case, a heavy responsibility is cast on the examiners to maintain a proper record of' the oral test in respect of each candidate and marks must preferably be assigned under each head considered relevant to evaluate the candidate.
Once this care is taken the element of subjectivity will be largely checked and the marks assigned under different heads at the oral test will more or less faithfully reflect the fitness of the candidate, In the matter of evaluation some degree of honest error must be countenanced.
However, if there is any allegation of nepotism or favourtism, the same can be checked with reference to the record so maintained.
Since the oral test is a highly subjective one and is susceptible to misuse, the degree of proof required for bringing home the charge of nepotism or favouritism may be light.
But that is not to say that a mere allegation based on the fact that passing of an oral test is a 'must' or that the marks reserved for the oral test are excessive will per se, without anything more, set the Court, probing into the records of the oral test.
But if the allegation is supported by some dependable proof, the Court will satisfy itself whether or not the charge is well founded.
That is why we have said that a heavy responsibility lies on those examining the candidates at the interview to ensure that proper record is maintained so that there is no room for suspicion in the minds of the unsuccessful candidates that the result of the oral test is tainted with bias for or against any candidate because even light proof in support of the charge may upset the result of the oral test as a whole or Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (11) qua a candidate, as the case may be .”
.
Inspite of various observations made by this Court as well as Hon’ble the Supreme Court in various judgments, it is held that interview as sole basis of selection may not be per se illegal, but in absence of any such record for the assessment of respective candidates and without adopting any procedure whatsoever for grading the merit of all candidates by each member of the Committee, the selection on the basis of interview only does not seem to be proper and as per merit.
In the present case, no criteria was adopted for preparing the comparative merit.
Neither any record has been maintained nor overall assessment of the performance of each candidate has been done.
Even no criteria appears to have been adopted by the Selection Committee as per record.
Simply by stating that on the basis of performance in the interview, the candidates were selected and the petitioner was not found suitable for appointment to the post of Assistant Professor in Electrical Engineering is not sufficient.
Although there is no malafide against the members of Selection Committee but the candidates who could not come in the purview of selection have a right to know about their placement in the merit list prepared by the Selection Committee and moreover transparency is required to be maintained.
In the present case nothing is there on record to show that the selection was made on the basis of grading or the performance before Selection Committee.
Neither grading nor any other method or criteria has come on record to show as to how the candidates have been assessed by the Interview Committee.
It is not always necessary that the candidates who were more meritorious are always poor in performance and the candidates who are less meritorious are always good in viva voce.
The argument of learned counsel for the respondent-University that the petitioner has no right to challenge the selection as she has Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (12) participated in the selection process is no ground to bar her from challenging the selection.
This view finds support with judgment of Hon'ble Supreme Court in M/s Motilal Padampat Sugar Mills Co.Ltd.v.State of Uttar Pradesh AIR1979SC621wherein the following observation has been made: “Waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be an intentional act with knowledge.
There can be no waiver unless the person who is said to have waived his fully informed as to his right and with full knowledge of such right, he intentionally abandons it.”
.
Learned counsel appearing for the respondent University has not been able to show even from the record as to how the performance of the candidates was judged/evaluated at the time of interview.
Neither from the record nor from any other document on file it is clear that no merit was prepared or any grading was done on the basis of performance of each candidate.
Even there is nothing on record to show as to how the performance of the candidates has been assessed by the Interview Committee.
The Hon’ble Supreme Court in Lila Dhar v.
State of Rajasthan 1981 (4) SCC159while expressing its view about the importance of written as well as interview list has observed as under: “ the written examination assesses the man’s intellect and the interview tests the man himself and “twain shall meet”.
for a proper selection.”
.
Though the Courts normally exercise restraint in interfering with the selection process and specially when the criterion is laid down by Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (13) the expert body but the Court cannot be oblivious of the fact that there has been steady decline of public standards, public morals and public morale.
In such a situation Courts can not shut their eyes and should not remain mute and dumb as has been observed in Shirajit Rao Nilangekar Patil versus Mahesh Madhar Gosari 1987 (1) SCC227para 51.
Although Selection Committee is normally left to devise its own procedure, subject to being fair and reasonable.
Selection has to be made by assessment of relative merits.
It is also not necessary to give any reason for the assessment but power of awarding marks in interview is coupled with the duty to select the best and cannot be exercised arbitrarily as has been observed in Union of India v.
M.L.Capoor AIR1974 SC87 National Institute of Mental Health and Neuro Sciences v.
Dr.K.Kalyana Raman AIR1992SC1806para 7 and Mohan Kumar Singhania versus Union of India AIR1992SC1.
In Center for Public Interest Litigation versus Union of India, AIR2005 SC page 4413, appointment of Chief Secretary was set aside with the observation that in case of sensitive posts, appointments must be transparent and persons of above suspicion.
Similarly in Ram Chander's case (supra).the post of Lecturer was advertised and selection was made on the basis of recommendation of the Selection Committee without adopting any criteria.
Neither any marks were awarded in the interview nor academic merit of the candidates were graded.
The selection was set aside by this Court with certain directions to the respondents to formulate a rational, fair, not arbitrary and valid criteria for making selection to the post in question.
Accordingly fresh selection was directed to be made in accordance with the criteria.
The observations of the Court is as under:- 3.
I have heard learned counsel for the parties at length.
It is true that selection body is entitled to formulate its own Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (14) criteria for making selection, if not otherwise provided for under any rules or laid down guidelines.
However, the criteria has to be fair, rational and non-arbitrary.
From the written statements filed, it is evident rather an admission on the part of the respondents that no statutory criteria exists nor there is any laid down criteria for making selection.
It has been stated in the reply that the selection has been made on the basis of the recommendation of the Selection Committee.
On receipt of the recommendation from the Selection Committee, the Executive Council of the University adopted a resolution approving the recommendation of the Selection Committee.
It has also been disclosed that as many as 58 applications were received for the five posts, 21 candidates were found eligible.
According to the information furnished to the petitioner, all the eligible candidates were called for interview for 6.10.2008 excluding the ESM Category.
17 candidates appeared in interview.
The Selection Committee did not prepare any merit list of the candidates on the basis of their performance in the interview and just recommended two names i.e.respondents No.3 and 4 for appointment.
Record of selection was called for.
From the record of selection, it is evident that neither any marks were awarded for interview and/or academic merit nor the candidates were graded in any other manner.
How and what mode was adopted for selection seems to be a close secret.
No valid, rational and fair criteria was laid down or adopted for making selection nor any record of inter-se merit of the appearing candidates has been maintained.
6.
Admittedly, the Selection Committee has not prepared Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (15) any merit as per reply to paragraph 2 of the application for seeking information underRight to Information Act.
This clearly establishes that the selection has been made without any fair, valid and rational criteria being adopted or even assessing the merits of the appearing candidates.
It would not be wrong to infer that the entire selection is a farce and has been made by adopting “Pick and Choose”.
Method.
Selection made in this manner cannot be sustained even if the selectees are the best suited candidates for the job.
7.
Petition is accordingly allowed with the following directions:- (i)Selection/appointment of respondents no.3 and 4 is hereby quashed; (ii)The University will formulate a rational, fair, non-arbitrary and valid criteria for the purpose of making selection to the post in question and notify the same not only within the University Campus, but even in public by issuing the advertisement in one English newspaper and one vernacular having circulation in the concerned area; (iii)Fresh selection shall be made in accordance with the notified criteria within a period of four months.
Petitioner and all other candidates who were eligible at the time of advertisement shall have the right to participate in the selection process notwithstanding that thereafter anyone of them has been rendered ineligible on account of over-age etc.Keeping in view the facts of the present case as well as law position with regard to selection on the basis of interview, in the absence of any record for assessing the respective merit and the suitability of the Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (16) candidates, I am of the considered view that Selection Committee has failed to adopt any criteria for assessing the respective merit.
In absence of any such criteria, the opinion formed by the Committee cannot be considered to be justified or reasonable.
Accordingly, the selection of the post of Assistant Professor in Electrical Engineering (General Category) is quashed with the following directions:- (i)Selection/appointment of respondents no.3 and 4 is hereby quashed; (ii)The University shall formulate a rational, fair, non-arbitrary and valid criteria for the purpose of making selection to the post in question and notify the same not only within the University Campus, but even to public by issuing an advertisement in one English newspaper and one vernacular having circulation in the concerned area; (iii)Fresh selection shall be made in accordance with the notified criteria within a period of four months thereafter.
Petitioner and all other candidates who were eligible at the time of advertisement shall have the right to participate in the selection process notwithstanding that thereafter anyone of them has been rendered ineligible on account of over-age etc.However, it is made clear that since the petitioner had challenged the selection of General Category only and the candidates belonging to other candidates have not approached this Court and no order regarding their selection can be passed in their absence.
30.6.2014 (DAYA CHAUDHARY) pooja JUDGE Pooja Sharma 2014.07.03 12:08 C.W.P.No.14234 of 2012 (17) Pooja Sharma 2014.07.03 12:08