HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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LPA No.1555 of 2012 (O&M)
Date of Decision: 30.09.2013
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Vijay Kumar & Ors. . . . . Appellants
VS.
Sanjeev Kumar & Ors. . . . . Respondents
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CORAM: HON’BLE MR.JUSTICE SURYA KANT
HON’BLE MR. JUSTICE SURINDER GUPTA
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1. Whether Reporters of local papers 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?
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For appellants:- Mr. HS Hooda, Advocate General, Haryana
with Mr. DS Nalwa, Addl. AG Haryana;
Mr. Rajiv Atma Ram, Senior Advocate;
Mr. R.K. Malik, Senior Advocate;
Mr. Girish Agnihotri, Senior Advocate;
Messrs Arjun Pratap Atma Ram, Nikhil
Sharma, B.Jeet Sheoran, Vikram Singh,
Rajesh Lamba, Ashutosh Kaushik, Dilbagh
Singh, Advocates.
For private
respondents :-
Mr. Vivek Khatri, Advocate
Mr. Ramesh Goyal, Advocate
Mr. SS Dinarpur, Advocate
Mr. Rajinder Singh, Advocate
Mr. Sudhir Mittal, Advocate
Ms. Alka Chatrath, Advocate
Mr. Rajneesh Chadwal, Advocate
Mr. Arun Takhi, Advocate
Mr. Madan Pal, Advocate
Ms. Vandana Sharma, Advocate
Mr. V.D. Sharma, Advocate
Mr. Jagbir Malik, Advocate
Mr. Ferry Sofat, Advocate
Mr. Vikrant Rana, Advocate
Mr. Viney Saini, Advocate
Mr. Ramesh Goyal, Advocate
Mr. Arihant Goyal, Advocate
Mr. Ravi Gakhar, Advocate for
Mr. Jagdish Manchanda, Advocate.
Ms. Ramandeep Kaur, Advocate
LPA No.1555 of 2012 - 2 -
Mr. Anil Malik, Advocate
Mr. Surinder Singh Duhan, Advocate
Mr. Ashwani Verma, Advocate
Mr. Dinesh Arora, Advocate
Mr. SP Chahar, Advocate
Mr. Neeraj Kumar, Advocate
Mr. Rajesh Sheoran, Advocate
Mr. Rajender Goyal, Advocate
Mr. Robin Lohan, Advocate
Mr. Sandeep Singh, Advocate
Mr. Vikram Singh, Advocate
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SURYA KANT, J.
(1) This order shall dispose of LPA Nos.1555, 1557,
1562, 1592, 1594, 1595, 1760, 1831 to 1839, 1841 to 1860, 1870
to 1920, 1950, 1967, 1997, 2002, 2028, 2194 of 2012; 248, 262,
303, 529, 814 of 2013 as all these appeals have arisen out of a
common order dated 11.09.2012 whereby the learned Single
Judge while allowing a bunch of writ petitions has quashed the
selection to the post of Physical Training Instructors (PTIs)
made pursuant to the Advertisement No.6/2006, the result
whereof was published on 11.04.2010 and has directed the
Haryana Staff Selection Commission to hold fresh selection in
accordance with law. The appeals preferred by the selected
candidates, State of Haryana and the Haryana Staff Selection
Commission [excluding LPA Nos.1595, 1760, 1967, 2194 of
2012; and 303 of 2013] have been clubbed together as common
question of law and facts are involved. LPA No.1555 of 2012
LPA No.1555 of 2012 - 3 -
preferred by 1616 selected candidates, is treated as the lead
case.
(2) LPA Nos.1595, 1760, 1967, 2194 of 2012; and 303 of
2013 are at the instance of some of the writ-petitioner(s) they
being partly dis-satisfied with the order of the learned Single
Judge as the issue of ‘ineligibility’ and ‘disqualification’ of some
of the selected candidates expressly raised by them have not
been gone into by learned Single Judge. In view of the
commonality of the point in issue, these cross-appeals are also
taken up along with the main appeals.
(3) The facts may be noticed briefly. Vide
Advertisement dated 20th July, 2006, Haryana Staff Selection
Commission (in short, ‘the Commission’) invited applications
for recruitment to 1983 posts of Physical Training Instructors
(PTIs) out of which 940 posts were for the General category,
400 for Scheduled Castes (A&B sub-categories), 534 for
Backward Classes (A&B sub-categories), 72 for Ex-servicemen
(General) while the remaining posts were reserved for various
other categories. The required qualification was Matriculation
from Haryana School Education Board or its equivalent along
with “Certificate in Physical Education conducted by Haryana
Education Department or an equivalent qualification
recognized by the Haryana Education Department” and also
LPA No.1555 of 2012 - 4 -
the knowledge of Hindi upto Matric standard. For Exservicemen
the prescribed qualification was Middle standard
with training in Physical Education from a Military School.
The last date for submission of application form was 21st
August, 2006.
(4) The advertisement also contained instructions given
to candidates including the following ‘Special Instructions’:-
“The prescribed essential qualification does
not entitle a candidate to be called for
interview. The Commission may short list
the candidates for Interview by holding a
written examination or on the basis of a
rationale criteria to be adopted by the
Commission. The decision of the
Commission in all matters relating to the
acceptance or rejection of an application,
eligibility/suitability of the candidates, mode
of, and criteria for selection etc. will be final
and binding on the candidates. No enquiry
or correspondence will be entertained in this
regard.”
(Emphasis applied)
(5) The appellants as well as writ-petitioners/private
respondents applied in response to the above-stated
advertisement. They were informed vide public notice dated
28.12.2006 that a Written Test consisting of 100 Objective Type
multiple-choice questions with each question carrying two
LPA No.1555 of 2012 - 5 -
marks, shall be held on 21.01.2007. The public notice also
stipulated that ‘minimum qualifying marks’ for General
category candidates were 50%, for Scheduled Castes, Backward
Classes and other reserved categories (except ESM) it were 45%
and for ESM 40%. “Twenty five marks were assigned for
the viva voce”.
(6) The appellants and the private respondents
appeared in the written test held on 21.01.2007 but vide a
subsequent public notice dated 01.02.2007, the Commission
notified that due to receipt of several complaints with regard to
malpractice and cheating committed at various examination
centres, the written examination held on 21.01.2007 stood
cancelled.
(7) The Commission then issued another public notice
on 11.06.2008 informing the candidates that the written
examination will now be held on 20.07.2008. The selection
criteria like minimum qualifying marks in the written test or
viva voce as published on 28.12.2006 was kept intact.
(8) The Commission issued a public notice on
20.06.2008 cancelling the written test scheduled to be held on
20.07.2008 ‘for administrative reasons’.
(9) Thereafter yet another public notice dated
12.07.2008 was issued by the Commission informing its
LPA No.1555 of 2012 - 6 -
decision to short-list the candidates, eight times of the
advertised posts in their respective categories, for interview on
the basis of essential academic qualifications mentioned in the
advertisement.
(10) The short-listed candidates were to be interviewed
as per the original schedule from 02.09.2008 till 17.10.2008.
(11) The Commission, however, again did not honour its
decision and issued yet another notice on 31.07.2008 whereby
‘on careful reconsideration of the matter’, it decided to call all
the eligible candidates, namely, those possessing the minimum
essential qualification, for interview as per the revised schedule
starting from the month of September, 2008.
(12) There were in all 15882 candidates who were
interviewed by different Selection Committees and after about
1½ year, the result was declared on 10.04.2010 which was
published on 11.04.2010. The ‘selection criteria’ adopted by the
Commission as published by it along with the final result was
to the following effect:-
“Criteria adopted for selection :-
The criteria adopted by the Commission for
making selection is given below :-
1) Academic marks 60 marks
2) Marks obtained in the
viva-voce out of 30 marks
Total : 90 marks.”
LPA No.1555 of 2012 - 7 -
(13) Some of the unsuccessful candidates felt aggrieved
and challenged the selection. The learned Single Judge has
sustained their challenge and quashed the selection, inter alia,
observing that:
(a) in view of ‘Special Instructions’ inserted in the
advertisement, the possession of essential
qualifications alone could not entitle a candidate to
be called for interview;
(b) the Commission having resorted to short-listing the
candidates by holding written examination could not
have backtracked and interviewed all the candidates
possessing basic qualifications;
(c) once the Commission laid down the ‘selection
criteria’ of ‘written examination’ comprising 200
marks and 25 marks for viva voce, the same could
not have been changed in the midst of the selection
process;
(d) the so-called ‘selection criteria’ published along with
the result was never laid down by the ‘Commission’
as a multi-Member body as at no stage they
assembled to take a decision in this regard;
LPA No.1555 of 2012 - 8 -
(e) the criteria actually applied for the selection was a
‘single-member decision’ taken by the Chairman of
Commission;
(f) there was an attempt to mislead the Court by
producing a decision purported to have been taken
by the Commission on 03.08.2008 which was
prepared only when the Court directed to produce
the selection criteria evolved by the Commission;
(g) the decision taken by the Chairman was in utter
violation of the Government notifications dated
21.05.1971; 09.12.1997; 28.07.1998 and 21.06.2007
constituting the Commission and laying down its
functions and powers as also prescribing its
composition. These notifications were issued under
proviso to Article 309 of the Constitution and were
statutory in character;
(h) the entire selection was the handiwork of the
Chairman and not of the multi-Member body.
(14) The other grounds pressed into aid by the private
respondents in respect of de-merits or ineligibility of one or the
other selected candidates were not gone into by the learned
Single Judge and the writ petitions were allowed on the abovenoticed
legal issues only.
LPA No.1555 of 2012 - 9 -
(15) The aggrieved parties have preferred these appeals
in support whereof, learned Advocate General, Haryana,
Sarvshri Rajiv Atma Ram, RK Malik and Girish Agnihotri,
Senior Advocates and a battery of other lawyers were heard for
a considerable length. Similarly, an unrestricted time was
given to counsel for the respondent/writ-petitioners. The
original records of the Commission were summoned and have
been perused.
(16) Learned Advocate General urged that:-
i. neither there are allegations of mala fide nor such
allegations have been proved hence the entire
selection ought not to have been set aside;
ii. the writ-petitioners who appeared for viva voce
without any protest and competed for their selection
but challenged the selection on failing, are estopped
by their act and conduct. The decisions in (i) Om
Parkash Shukla vs. Akhilesh Kumar Shukla &
Ors., (1986) Suppl. SCC 285; (ii) Sanjay Kumar
& Ors. vs. Narinder Verma & Ors., (2006) 6 SCC
467; and (iii) Pitta Naveen Kumar & Ors. vs.
Raja Narasaiah Zangiti & Ors. (2006) 10 SCC
261 were relied upon;
LPA No.1555 of 2012 - 10 -
iii. in para-12 of its decision in the State of Haryana
vs. Subash Chander Marwaha & Ors. (1974) 3
SCC 220, Supreme Court has clearly laid down that
where the decision of State Government to introduce
a new Rule by which appointments of the candidates
who scored not less than 55% marks could be
restricted, was valid as “this is essentially a matter
of administrative policy…” and the ‘selection
criteria’ also being a policy decision taken by the
expert-body, the learned Single Judge need not have
interfered with the same;
iv. the question that “Rules of the game which cannot be
changed after the game is either commenced or
played”, has been referred by the Supreme Court to
a larger Bench for authoritative pronouncement in
Tej Parkash Pathak & Ors. vs. Rajasthan High
Court & Ors., (2013) 4 SCC 540;
v. in view of pronouncement in Girjesh Shrivastava
& Ors. vs. State of MP & Ors., (2010) 10 SCC
707, no order against the selected candidates could
be passed by learned Single Judge without
impleading them as party and without giving an
opportunity of hearing. Another decision in Union
LPA No.1555 of 2012 - 11 -
of India and Ors. vs. Rajesh PU
Puthuvalnikathu, (2003) 7 SCC 285 was also
relied upon to urge that even if there were some
irregularities in the selection of one or a few
candidates who got benefit of such irregularities, it
was not justified or warranted to cancel the entire
selection and deprive the other selected candidates
of their right to appointment. The allegations of
lack of eligibility of some of the selected candidates
were refuted and it was asserted that all of them
possess Degree(s) instead of Diploma in the relevant
stream which is a higher qualification, as ruled by
this Court in (i) Charan Singh & Ors. vs. State of
Haryana & Anr., 2004 (3) RSJ 611; and (ii)
Manoj Kumar & Ors. vs. State of Haryana &
Ors., 2007 (1) SLR 684;
vi. it was explained that no ‘overage’ candidate was
selected as the writ-petitioners have completely
overlooked the Government instructions contained
in Circular No.11/97/7.10 which says that “if a
J.B.T./B.Ed./M.Ed. applicant and also the
applicant who has passed his/her Classical &
Vernacular examination (Hindi, Punjabi, Sanskrit/
LPA No.1555 of 2012 - 12 -
Art and Craft/ Home Science/ S.V./ S.T./ P.T.I./
Tailoring Teachers) gets his/her name registered
with an Employment Exchange within the age limit
prescribed by Govt. for first entry into Govt. Service
and becomes overage before getting regular
employment his/her maximum age limit can be
relaxed to the extent as required for first entry into
Govt. Service. Accordingly, applicants who become
overage will approach the Employment Exchange to
enable them to get the benefit of relaxation in the
maximum age limit for example the age limit for
teacher/Masters has been increased from 30 years to
35 years vide Chief Secy. Letter No.3/1/90-IGS-III
dated 5-9-90 hence it is clarified that applicants who
have got registered their name in the trade of
Teacher/Masters before 5-9-90 after completing the
age of 30 years and have not crossed the age of 35
years, they are to be considered within age limit for
Govt. Service...”
vii. similarly, Government instructions circulated vide
UO No.3/3/99-1GS-III dated 22.09.1999 were
referred to contend that relaxation of five years in
the upper age limit was admissible to the candidates
LPA No.1555 of 2012 - 13 -
belonging to Backward Classes also at par with
Scheduled Castes candidates;
viii. it was then argued that power to prescribe the
criteria for viva voce just a few days before
commencement of interviews, if so necessitated or
permissible under the Rules, has been approved by
the Apex Court in Barot Vijay Kumar
Balakrishna & Ors. vs. Modh Vinay Kumar
Dasrath Lal & Ors., (2011) 7 SCC 308 and that
the allocation of marks for viva voce in the instant
case in any case is consistent with the principles laid
down by the Supreme Court in Anzar Ahmad vs.
State of Bihar & Ors., (1994) 1 SCC 150;
ix. Equity – as the last rescuer, was also brought into
aid of the selected candidates submitting that they
are working since the year 2010 hence deserve to
continue.
(17) The contentions raised by other learned senior
counsel(s) on behalf of the selected candidates may also be
summed up as follows:-
i. a substantial number of selected candidates were
not heard by the learned Single Judge before setting
aside their selection; the selected candidates were
LPA No.1555 of 2012 - 14 -
impleaded as party respondents by way of Civil
Misc.No.17080 of 2011 which was allowed on
16.12.2011 and they were issued notice in the main
case for 02.05.2012. The Registry reported for
02.05.2012 that “1389 notices have been
received/served. 53 notices have been received
unserved. 320 notices have not been received either
unserved or served.”. The learned Single Judge did
not deem it appropriate to effect service on the
unserved selected candidates and heard the
arguments and reserved judgement on 02.05.2012
itself. The decisions of this Court in (i) Anoop
Singh versus State of Haryana,2008 (2) RCR
(Civil) 626; and (ii) dated 7th September, 2009
passed in RA No.332 of 2006 in CWP No.16873 of
2004 (iii) dated 20th May, 2013 in LPA No.1864 of
2012 and other connected appeals (Parminder
Kaur & Ors. vs. Dalbir Singh & Ors.) lay down
that an order passed without notice to the persons
interested, stands vitiated and cannot sustain;
ii. the only plea that the ‘selection criteria’ was
changed amidst the selection process was factually
incorrect and could not be raised by the writLPA
No.1555 of 2012 - 15 -
petitioners who were estopped by their acts and
conduct. The decisions of the Hon’ble Supreme
Court in Dr. G.Sarana vs. University of
Lucknow, (1976) 3 SCC 585 and of this Court in (i)
Surinder Kaur & Ors. vs. State of Punjab &
Ors., 1995 (5) SLR 579; and (ii) Baljinder Singh
Teja & Anr. vs. Punjab & Haryana High Court,
Chandigarh, 2008 (3) SLR 598 have been relied
upon;
iii. the vague, evasive and sweeping allegations made
against eligibility of some of the selected candidates
with the sole object of getting the records summoned
for holding a roving enquiry, ought not to have been
entertained as ruled by the Supreme Court in
Sadananda Halo and Ors. vs. Momtaz Ali
Sheikh & Ors. (2008) 3 SCC 619;
iv. the selection has been set aside on the ground(s) like
lack of competence in formulation of the ‘selection
criteria’ which was neither pleaded nor urged. The
learned Single Judge ought not to have improved
the case of writ-petitioners by summoning the
original records and then opining that the ‘selection
criteria’ was laid down by the ‘Chairman’ and not by
LPA No.1555 of 2012 - 16 -
the ‘Commission’. Such a recourse is impermissible
in law as is held in (i) Ganeshi Ram vs. District
Magistrate, AIR 1967 SC 356; and (ii) BSN Joshi
& Sons Ltd. vs. Nair Coal Services, (2006) 11
SCC 548;
v. there is a mark distinction between ‘change in
criteria’ and ‘change in the method of selection’
which has been overlooked by learned Single Judge.
The ‘selection criteria’ of 60 marks for
basic/essential qualifications and 30 marks for viva
voce adopted by the Commission in the instant case
has got an implied seal of approval of this Court in
Jagmal vs. State of Haryana & Ors., (2007) 1
SLR 177 where the selection criteria comprising
50% marks for academic performance and 50% for
viva voce was held to be not suffering from any
arbitrariness. The minor changes in the selection
criteria, if at all, cannot have devastating effects like
quashing of the selection of thousands of candidates
as observed by the Apex Court in Chandra
Parkash Tiwari vs. Shakuntla Sukla, (2002) 6
SCC 127;
LPA No.1555 of 2012 - 17 -
vi. the ‘principle of ratification’ is fully attracted to the
facts and circumstances of the case in hand as (a) no
member of the Commission has objected to the
selection by interview only; (b) all the Members have
taken interview; and (c) all the Members have
prepared the result. Various judicial-precedents
decisions including in (i) Parmeshwari Prasad
Gupta vs. Union of India, (1973) 2 SCC 543; (ii)
Union of India vs. Sukumar Sen Gupta & Ors.,
(1990) Suppl. SCC 545; (iii) M/s Shankar Dass
Rup Lal Aggarwal vs. Governor-General-in-
Council, 1951 PLR 231; and (iv) SS Lamba vs.
Punjab State Leather Development
Corporation, 1994 (4) SCT 192 have been relied
upon to say that ‘ratification’ can be by actual
implementation or by conduct and it will have
retrospective effect from the date the original order
was passed;
vii. the Supreme Court in (i) AA Calton vs. Director of
Education, (1983) 3 SCC 33; and (ii) NT Devin
Katti etc. vs. Karnataka Public Service
Commission & Ors. (1992) 2 SLR 378 has laid
down that the selection process starts with the
LPA No.1555 of 2012 - 18 -
issuance of ‘advertisement’. The ‘selection criteria’
relied upon by the writ-petitioners was also not
formulated prior thereto, hence the so-called original
criteria as well as the revised one both were evolved
during the ‘course of selection’ only;
viii. the factual pleas on ‘age limit’ of selected
candidates, ‘recognition’ of their ‘academic
qualifications’, ‘genuineness’ of the academic
certificates, ‘equivalence’ of the basic or essential
qualifications etc., were raised by the writpetitioners
only to open the Pandora’s box full of
disputed facts which could neither be proved nor
decided in exercise of writ jurisdiction;
ix. the qualifications possessed by the selected
candidates are duly recognized by the University
Grants Commission and since the State Government
or its agencies have no role to play in this regard,
the unfounded allegations of accepting unrecognised
qualifications are totally false and
baseless. Two decisions of this Court in (i) Charan
Singh & Ors. vs. State of Haryana, 2004(3) RSJ
611; and (ii) Manoj Kumar & Ors. vs. State of
LPA No.1555 of 2012 - 19 -
Haryana & Ors., 2007(1) SLR 684, were cited in
the aid of this contention.
(18) We may now take precise note of the submissions
made on behalf of private respondents/writ-petitioners in
support of the view taken by the learned Single Judge. It was
urged that:-
i. the selected candidates were impleaded as party
respondents in most of the writ petitions and
repeated efforts were made to serve them. In fact,
hundreds of selected candidates were duly served
even before 14.07.2011 as is evident from the
contents of the order passed on that date in CWP
No.2613 of 2011 and other connected matters, the
relevant part whereof reads as follows:-
“Written statement on behalf of respondent
No.2 filed in CWP No.2613 of 2011 in Court
today, is taken on record.
Following respondents have been served:-
3 to 6, 8 to 10, 13 to 17, 19, 21, 23 to 27, 29
to 32, 34, 35, 37 to 43, 48 to 50, 53 to 58, 60
to 63, 65 to 69, 74 to 76, 78, 81, 87, 94, 102,
103, 127, 132, 134, 138, 143 to 145, 164, 176
to 178, 182 to 185, 189 to 195, 204, 207, 213,
215 to 217, 227, 232, 239, 240, 242 to 244,
246, 249, 254 to 258, 305 and 309.
LPA No.1555 of 2012 - 20 -
Following respondents have been served
through their relations, which shall be deemed
to be proper service.
18, 20, 22, 28, 45, 52, 72, 77, 79, 80, 92, 95,
96, 101, 106, 117, 120, 121, 123, 124, 128,
130, 131, 135, 140, 172, 173, 183, 187, 205,
208 to 212, 218 to 220, 231, 233 to 238, 245,
247, 248, 250, 252 and 253.
Notices issued to respondent Nos.12, 46, 47,
73, 93, 122, 125, 126, 181, 214, 221 and 222
received back unserved due to wrong or
incomplete addresses. Counsel for the
petitioners may furnish complete and correct
addresses of these respondents.
Notices issued to the following respondents
have not been received back served or
otherwise:-
7, 11, 36, 44, 51, 59, 70, 82 to 86, 88 to 91, 98
to 101, 104, 105, 107 to 111, 119, 129, 134,
136, 137, 139, 141, 142, 146 to 163, 165 to
171, 174, 175, 179, 180, 186, 188, 196 to 203,
206, 223 to 226, 228 to 230, 241, 246, 259 to
304, 306 to 308 and 310.
Notice issued to respondent No.97 has been
received back with the report ` he is dead'.
Counsel for the petitioners to take necessary
steps for impleading his L.Rs.
It is noticed that large number of writ
petitions have been filed to challenge the
selection of PTI. The factual issue may be
different in these petitions, but primary issue
relates to the mode and manner of selection.
LPA No.1555 of 2012 - 21 -
Counsel for the parties agree that the service to
the un-served respondents be dispensed with for
motion hearing. If required, such respondents
may be served subsequently. Mr.Rathee is
requested to complete the proceedings in this
petition, which is taken as a lead case.
Mr.Rathee would also make an endeavour to
complete the proceedings in as many cases as
possible, so that submissions in these cases can
be heard.
Counsel for the respective parties in these
writ petitions would be at liberty to make their
submissions on the date fixed.
Adjourned to 12.10.2011.
In the meantime, the served respondents
may complete the proceedings.”
(Emphasis applied)
ii. the writ petitioners thereafter applied to effect
service on the rest of the selected candidates
through substituted service for which public notice
was duly published in the daily ‘The Tribune’ on
21.03.2012, well in advance before the next date of
hearing on 02.05.2012. The public notice
unambiguously clarified that if the selected
candidates fail to appear, the case “will be heard
and decided in their absence”.
LPA No.1555 of 2012 - 22 -
iii. in a case where the number of selected candidates is
unduly large, they could be impleaded in a
representative capacity also and such impleadment
will be a substantial compliance of principles of
natural justice as held by Supreme Court in
Prabodh Verma & Ors. vs. State of UP & Ors.,
(1984) 4 SCC 251.
iv. otherwise also, the failure of the Court in not
hearing a party before passing an adverse order, is
not an incurable defect as effective remedies like
review petition, Letters Patent Appeal and petition
under Article 136 before the Apex Court are very
much available to the affected party as observed by
Supreme Court in State of Punjab & Ors. vs.
Satnam Kaur & Ors., 2006(1) RSJ 290;
v. moreover, when enormous malpractices are
committed or the procedure adopted in the selection
process flagrantly offends Articles 14 & 16 of the
Constitution, no notice is required to be issued to
the beneficiaries of illegal largesse. The Supreme
Court decisions in (i) Biswa Ranjan Sahoo & Ors.
vs. Sushanta Kumar Dinda & Ors., (1996) 5
SCC 365 and (ii) Union of India & Ors. vs. O.
LPA No.1555 of 2012 - 23 -
Chakradhar, (2002) 3 SCC 146 have been
referred to in this regard;
vi. the learned Single Judge has not decided the case on
the basis of allegations made against individual
selected candidates. The selection has been set
aside on legal principles based upon the
administrative decisions of the Commission or its
Chairman. They were duly heard. Nothing could be
contributed by the selected candidates to explain
internal functioning of the Commission, hence no
prejudice has been caused to them. In fact, the
findings on the mal-functioning of the Commission
could be returned even in the absence of pleadings
and only on perusal of the official record of the
Commission which was duly summoned. [Ref.
Surya Dev Rai vs. Ram Chander Rai & Ors.,
(2003) 6 SCC 675];
vii. the writ-petitioners have specifically challenged the
selection broadly on two grounds, namely, (a) the
Commission cannot change the ‘criteria’ mid-stream;
and (b) the changed ‘criteria’ adopted by the
Commission was totally arbitrary and open to
misuse. The learned Single Judge found that the
LPA No.1555 of 2012 - 24 -
criteria of selection was illegally changed not by the
Commission but by its Chairman;
viii. the plea of ‘ratification’ of changed ‘criteria’ is totally
farce and baseless for the reasons that (a) the
Commission as a public authority is duty-bound to
act in accordance with rules, regulations and
byelaws which do not vest any power in the
Chairman to lay down the ‘selection criteria’ on his
own; (b) Clause (d) of Para-6 of the Government
Notification dated 21.06.2007 mandates that it is
the ‘Commission’ who shall devise the mode of
selection and fix the criteria for selection; (c) there is
no ‘power of delegation’ under the statutory
Notifications entrusting functions and duties to the
Commission; (d) there was no authorization by other
members of the Commission in favour of the
Chairman to change the criteria; and (e) the action
of the Chairman was void ab initio to which the
principle of ‘ratification’ does not apply. Reliance
has been placed on the decisions in (i) Marathwada
University vs. Seshrao Balwant Rao Chavan,
(1989) 3 SCC 132; (ii) Haryana Seeds
Development Corporation vs. Shri JK
LPA No.1555 of 2012 - 25 -
Aggarwal, (1989) 1 SLR 381; and (iii) Darshan
Lal vs. State of Haryana, (1999) 1 RSJ 607;
ix. the principle of estoppel cannot be invoked against
the writ petitioners as the changed ‘criteria’ was
never notified till the date of publication of the
selection result. The writ petitioners appeared for
viva voce on the assumption that the selection
criteria as notified earlier would be followed.
Moreover, in a case like this where provisions of
subordinate legislations have been violated, estoppel
cannot be applied against law. Reliance was placed
on (i) ITC Bhadrachalam Paper Board vs.
Mandal Revenue Officer, A.P. (1996) 6 SCC 634;
and (ii) Delhi-Assam Roadways Corporation
Ltd. vs. Haryana Urban Development
Authority, (2008) 3 Recent Civil Reports 389;
x. the change in criteria due to increase in viva voce
marks from 25 out of 225 marks to 30 out of 90
marks has severely prejudiced a number of writ
petitioners who could not be selected;
xi. the order passed by the Hon’ble Supreme Court in
Tej Parkash Pathak’s case (supra), referring the
matter to a larger Bench is distinguishable as the
LPA No.1555 of 2012 - 26 -
reference pertains to the short-listing of candidates
on the basis of higher merit;
xii. the selection criteria was changed by the Chairman
with mala fide intention to adjust the near and dear
ones of affluent persons. Even the learned Single
Judge apprehended the tampering with or
manipulation in the records and, therefore, directed
to keep photocopies of the record produced in Court
in a sealed cover;
xiii. the impugned selection made solely on the basis of
‘interview’ without following any reasonable or
relevant parameters with reference to qualifications,
experience, curricular and sports activities etc., is
neither fair and just nor does it inspire any
confidence. The Division Bench decision of this
Court in Babita Rani vs. Punjabi University,
Patiala & Ors., 2012 (2) SLR 524 was cited to
support the plea;
xiv. the learned Single Judge ought to have gone into the
allegations made against individual candidates also
as it would have peeled through the false plea of
selecting eligible and suitable candidates only.
LPA No.1555 of 2012 - 27 -
(19) Let the relevant facts of the case be recapitulated
before we dwell upon the rival contentions raised on behalf of
the parties.
(20) The advertisement (Annexure P1) contained ‘Special
Instructions’ according to which “the Commission may short-list
the candidates for interview by holding a written examination
or on the basis of a rationale criteria…”. It was thus within the
discretion of the Commission to evolve some fair and just
criteria for short-listing the candidates, if it so wanted. The
Commission indisputably took a conscious decision to short-list
the candidates through a written examination consisting of 200
marks which was held on 21st January, 2007. The notice
(Annexure P2) categorically mentioned that “keeping in view
the large number of applications, the Haryana Staff
Selection Commission has decided to hold the written
examination as per schedule given below…”. The public
notice further specified that written test shall consist of “100
objective type multiple choice questions….. and each
question will carry two marks. The candidates will have
to secure the minimum qualifying marks in the written
test…” i.e. General Category – 50%, SC/BC – 45%, ESM – 40%
and DESM/Sportspersons – as per their categories as General,
SC/BC. The notice also specified that “Viva-voce will be of 25
LPA No.1555 of 2012 - 28 -
marks”. It was then mentioned that “as per law laid down by
the Hon’ble Apex Court, candidates equal to three times of the
number of vacancies will be called for interview based on their
performance in the written test. The total marks obtained in the
written test and viva-voce will determine the merit of the
candidates in their respective categories.”. (Emphasis applied)
(21) The written-test was, however, scrapped vide public
notice dated 01.02.2007 and was decided to be held afresh on
20.07.2008, though it was cancelled again and instead vide
another public notice dated 12.07.2008, the Commission
decided to short-list candidates, eight-times in number of the
advertised posts in their respective categories, on the basis of
essential academic qualifications.
(22) There was thus a definite and conscious decision
taken by the ‘Commission’ to select the candidates on the basis
of a written test and viva voce which was otherwise highly
desirable keeping in view the fact that over twenty thousand
candidates had applied. The Commission did not stick to its
guns and the second method of short-listing the candidates on
the basis of their academic performance was also not followed.
It went ahead to interview all the candidates who had applied
and declared the final result.
LPA No.1555 of 2012 - 29 -
Did there exist valid reasons to scrap the written test
held on 01.02.2007?
(23) The original record comprising four files with
‘notings’ and ‘decisions’ taken with respect to the written
examination/short-listing of the candidates produced before us
reveal, in no uncertain terms, that the decision to select
candidates by way of ‘written examination’ and ‘viva voce’ was
taken by the ‘Commission’. After holding the written
examination on 21.01.2007, the Office put up the following Note
before the Chairman of Commission on 01.02.2007:-
“The Haryana Staff Selection Commission
got the written examination conducted through
the district administration Kaithal and Jind for
the posts of PTI and DPE on 21.1.2007 (Sunday)
from 10.00 a.m. to 11.15 a.m. and 2.00 p.m. to
3.15 p.m, respectively, against Advt.No.6/2006,
Cat.No.23 & 18, respectively.
Nodal Officer-cum-SDM, Jind vide his letter
No.1560-61/Steno, dated 22.1.2007 and the
Centre Superintendent of O.P. Jain Sr.Sec.School,
Kaithal vide letter dated 21.1.2007 have reported
the following irregularities in respect of aforesaid
tests:-
i) CRK College, Jind:- Ms. Raj Bala d/o
Shri Lal Chand after the examination for
the post of PTI was over has taken away
booklet No.12588 with her for which the
Centre Superintendent has lodged an FIR
LPA No.1555 of 2012 - 30 -
No.43 under Section 406 IPC with P.S,
Jind.
ii) Jat.Sr.Sec.School, Jind:- One candidate
bearing Roll No.4100 for the post of DPE
threw out question booklet including OMR
sheet at 2.20 p.m. out of window for which
an FIR No.45 under section 406/120-B IPC
with PS City, Jind has been got registered
by the Centre Superintendent.
iii) Govt. College, Jind:- One candidate
bearing Roll No.13726 for the post of PTI
was red-handed by the Invigilator of the
Centre while using mobile phone for which
the Centre Superintendent has registered an
FIR No.46 has been under section 419 of
IPC with P.S. City, Jind.
iv) S.D. Sr.Sec.School, Jind:- The question
booklet of the candidate bearing Roll
No.9161 for the post of PTI was found less in
number for which the Centre Superintendent
has got registered an FIR with the Police.
v) Happy Sr.Sec.School, Jind:- One
candidate bearing Roll No.17731 for the post
of PTI threw out question booklet including
OMR sheet out of window for which an FIR
No.42 under section 406 IPC with P.S. City,
Jind has been got registered by the Centre
Superintendent.
vi) O.P. Jain Sr.Sec.School, Kaithal:- One
incident of snatching of booklet No/Roll
No.4751 by an unidentified person taken
LPA No.1555 of 2012 - 31 -
place for the post of PTI for which an FIR
No.43 has been lodged with PS, Kaithal.
It is also worthwhile to mention here
that in a Press News has also published in the
Dainik Jagran of dated 22.1.2007 under the
heading “Ab Munnabhai Banenge P.T.I. 20
hazar me bika S.M.S.”. In this newspaper it
has been indicated that at Jind and Kaithal
after the commencement of the examination
the question papers for the posts of PTI and
DPE were leaked out and that the answers of
the question papers were sent to the
candidates through S.M.S. The mobile phones
were used at all the centres openly and
frequently. The question booklets were also
thrown out from the examination centres by
the miscreants.
In view of the aforesaid reports relating
to the examinations of PTI and DPE, it is
quite clear that the leakage of papers has
taken place at Jind and Kaithal immediately
even at the beginning of the examination.
Under these circumstances no option is
left out with the Commission but to cancel the
written examination for the posts of PTI and
DPE held on 21.1.2007. Therefore, the matter
is placed before the Commission to take a
final view in the matter.”
(Emphasis applied by us)
LPA No.1555 of 2012 - 32 -
(24) The above-reproduced Note was ‘approved’ by the
Chairman who further directed that “members of the
Commission may see and sign. Notification may be
issued.”. On that very day, six Members of the Commission
signed the above-stated Note. The written examination was
then scrapped.
(25) The next date of the written examination was
notified and intimation to all the concerned quarters was sent.
However, Superintendent Recruitment-I of the Commission put
up a typed Note dated 30.06.2008 to the following effect:-
“W/Chairman has ordered that the written
test for the post of DPE, Art & Craft Teacher
and PTI, Education Department, Haryana
against Advt. No.6/2006, Cat.No.18, 22 &
23 which have been fixed for 13.7.2008 at
Ambala and on 20.7.2008 at Karnal and
Rewari may be cancelled on administrative
reasons and the Roll Nos. for the
examinations if not issued, be withheld. SS
has told that Roll Nos. have not yet been
issued. Accordingly, Public Notice is placed
below for the approval.”
(Emphasis applied)
(26) On the same date the Chairman approved the Note
as also the notice to be published for cancellation of the
examination. The “administrative reasons” for cancellation of
LPA No.1555 of 2012 - 33 -
the proposed written examination are conspicuously missing in
the Note of the Superintendent as also ‘approval note’ of the
Chairman. This time the Chairman did not deem it necessary
to ask other Members of the Commission to “see” and “sign” –
at least for the sake of formality.
(27) We are of the considered view that the reasons
assigned in the Office Note dated 01.02.2007 for scrapping the
written test held on 21.01.2007 are totally inadequate to justify
the action from any angle. The reports sent by Sub Divisional
Magistrate or Centre Superintendent clearly identified the four
or five candidates who indulged in unfair or unlawful means
and took action against them. These reports do not even
distantly suggest any ‘leakage’ of the question-paper which was
objective type to be attempted on OMR sheets. An
unauthenticated news item, without enquiring or investigating
its contents, was accepted as the gospel truth, completely
overlooking the fact when more than fifteen thousand
candidates have peacefully taken the test, how could it be
cancelled for the misdemeanour of 4-5 identified wrongdoers?
(28) The writ-petitioners appears to have not
exaggerated in alleging that the reports mentioned in the Office
Note dated 01.02.2007 were a ploy to hold off the selection
which was to be largely dependent upon merit in the written
LPA No.1555 of 2012 - 34 -
examination. The subsequent events instead give credence to
their allegations.
(29) File No.3 (Sr.No.1/251/2008-II) starts with an Office
Note which on translation reads that “the brief facts of this case
are as follows. The Secretary discussed the matter with
worthy Chairman and worthy Chairman has issued oral
directions that in respect of advertisement No.6/2006,
Category No.22 of Art & Craft Teachers and Category
No.23 of PTIs Education Department, Advertisement
No.10/2007…., the applicants (candidates) are required
to be short-listed and called for interview. Accordingly,
short-listing for the following posts has been done as per
the percentage of marks required by the candidates as
per their respective categories…”. This Note was endorsed
by the Secretary and ‘approved’ by the Chairman on the same
date i.e. 10.07.2008. No other Member of the Commission has
seen or signed this decision.
(30) The original record contained in File No.4
(Sr.No.1/242/2008-IS) further reveals that the Chairman on
11.07.2008 approved the notice to be published in the
newspapers with details of category-wise percentage of marks
of short-listing based upon academic performance of the
candidates.
LPA No.1555 of 2012 - 35 -
(31) The afore-mentioned File at Page-6 contains another
Office Note dated 31.07.2008, the relevant extracts whereof on
translation read to say – “…in addition, some of the candidates
stage protest in front of residence of worthy Chief Minister
against the notice dated 11.07.2008 regarding short-listing of
the candidates for the posts of PTIs and Art & Craft Teachers.
On re-examination of the application forms, it has been noticed
that only 5000 candidates have been excluded from shortlisting…
hence the matter is put up before the Commission
with a request that keeping in view the resentment of the
candidates, the Commission may re-consider its decision…”.
The Chairman on 31.07.2008 itself “approved” the proposal at
‘A’ and directed to “call all eligible candidates”. No other
Member of the Commission is a party to this decision as well.
(32) The other important Noting is contained at page-28
of the above-stated File where the Office put up the proposal
before the Chairman to constitute Committees to interview the
candidates and that Note was also approved by the Chairman.
The last Office Noting approved by the Chairman is dated
04.10.2008 for the allocation of candidates for their interview to
different Interview Committees. The last page of the File
contains various Office Notes upto 17.10.2008.
LPA No.1555 of 2012 - 36 -
(33) None of these files even casually talks of any
meeting of the Commission as a multi-Member body held on
03.08.2008 or any decision taken therein. It is quite queer as to
when and how the ‘Commission’ met without an agenda or
office proposal and took decision dated 03.08.2008 on a single
‘stray sheet’. Does it mean that the Commission to whom the
solemn duty to protect the fundamental right of thousands of
aspirants, as guaranteed under Article 16 of the Constitution,
has been entrusted runs its day-to-day affairs on random pieces
of papers?
(34) The journey starting from cancellation of the written
test upto the decision to call all the candidates for interviews
was successfully treaded by the Chairman all by himself
without taking any Member of the Commission alongside. The
concept of collective wisdom of a multi-Member body was thus
completely detoured. The definite and conscious decision once
taken by the Commission has been systematically deviated
apparently to give safe passage to hundreds of candidates with
poor academic profile who could not have been otherwise shortlisted
but have now made to the final selection due to the
benevolence of highly inflated marks awarded to them in the
viva voce. We may now explain the reasons to draw this
inference.
LPA No.1555 of 2012 - 37 -
(35) As per the ‘selection criteria’ purportedly laid down
on 03.08.2008, there were 60 marks reserved for ‘Basic’ and
‘Essential’ qualifications (i.e. 30 each) which were to be
awarded on the basis of “0.30 of the percentage of marks
obtained”. There were 30 marks for viva voce to be awarded as
per “the knowledge of subject, communication skill, general
knowledge, general awareness and intelligence”.
(36) The plain analysis of the criteria unfolds that unless
a candidate has got 100% marks in the ‘basic qualifications’ and
‘essential qualifications’, he could not have secured 60 out of 60
marks allocated for Academic qualifications. On a random
scanning of the final Result-sheets, we find that there were
about 1496 candidates who got highest marks for Academic
qualifications ranging between 40 to 48.74 marks. Most of
these candidates have been awarded just 7 to 9 marks in the
viva voce. As against it, there are hundreds of selected
candidates who have been awarded 20 to 27 out of 30 marks in
the viva voce to ensure that they out-class the academicallybright
candidates. Such a mathematically accurate device
could not have been applied unless the marks of
academic/essential qualifications of the candidates were known
at the time of allocation of marks for viva voce. For example,
Roll No.005117 got 48.74 marks for Academic qualifications
LPA No.1555 of 2012 - 38 -
and only 7 marks in viva voce i.e. 55.74. Roll No.001451 got
29.74 marks for ‘Academic’ qualifications and 27 in viva voce
with a total of 56.74. There are ‘n’ number of such like
examples. It cannot be a mere co-incidence that 90% of the
meritorious candidates in Academics, performed so ‘poorly’ in
viva voce that they could not secure even 10 marks out of the 30
marks or that the brilliance got configurated only in the
average candidates possessing bare eligibility.
(37) Thus, even accepting the appellants’ plea that
‘selection criteria’ or ‘mode of selection’ can be altered midstream
to short-list the candidates with higher merit, here is a
case where the alterations have been designed with the sole
object of downgrading and not upgrading the standards of
selection to public employment.
Was the Chairman competent to take policy
decisions like ‘selection criteria’ or ‘mode of
selection’ ?
(38) It is an admitted fact that the Commission (earlier
known as ‘Subordinate Services Selection Board’) is a creation
of the Notification dated 28th January, 1970 issued under
proviso to Article 309 of the Constitution of India. The terms
and conditions of service of the Members and its functions find
mention in that Notification. Learned Single Judge has
referred to relevant clause(s) of the Notification to explain that
LPA No.1555 of 2012 - 39 -
the Board (now Commission) is a multi-Member body. Vide
subsequent Notification dated 28th July, 1998, the ‘Board’ was
re-named as ‘Commission’. Para 6(d) of the original Notification
was also substituted and the amended clause reads as follows:-
“(iv) in paragraph 6, for clause (d), the
following clause shall be substituted and
shall be deemed to have been substituted
with effect from 10th January, 2006, namely
:-
“(d) methods of recruitment and the
principles to be followed in making
appointments to the Group B, 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 sent to it by a
department or an 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 clause.”
(Emphasis applied)
(39) The Commission owes its existence to the
Notification dated 28.01.1970 as modified from time to time by
subsequent Notifications issued under proviso to Article 309 of
the Constitution. These Notifications are statutory in character
LPA No.1555 of 2012 - 40 -
and have not been superseded by any principal legislation.
Under these Notifications, no power exercisable by the
‘Commission’ can be delegated to its Chairman nor any
enabling provision to this effect has been pointed out. There is
no decision of the Commission also delegating its functions to
the Chairman.
(40) Since the decisions regarding ‘method of
recruitment’, ‘mode of selection’ and the ‘criteria for selection’,
are required to be taken by the ‘Commission’ alone, the
Chairman could not have usurped those powers and assumed
the role of ‘Commission’. The fact that instead of defending his
single-member decisions, the Chairman finally took shelter
behind the so-called decision of the ‘Commission’ dated
03.08.2008 before the learned Single Judge, also reinforces our
conclusion that the Chairman was incompetent to take one
decision after the other.
(41) It is unfortunate that instead of reversing his
unlawful decisions, taken by side-tracking eight other Members
(as it was a nine-Member body since 21.06.2007), the Chairman
involved those other Members in a mock-drill and flashed a
surprise on the learned Single Judge by producing the magical
‘single loose sheet’ of their purported decision dated 03.08.2008
laying down the ‘criteria for selection’.
LPA No.1555 of 2012 - 41 -
(42) We have also perused the decision dated 03.08.2008
produced in a sealed envelope. We firmly affirm the findings
returned by the learned Single Judge to discard the same. We
say so for the reasons that (i) various administrative decisions
whether taken by the Commission as a multi-Member body
(only one such decision found in the Files) or by the Chairman
contained in the Files produced before us, are preceded by an
‘Office Note’ or ‘proposal’ and are invariably forwarded by the
Secretary of the Commission; (ii) the original record of decisions
taken by the Chairman in the last week of September, 2008 or
in first week of October, 2008 do not even whisper about any
meeting of the Commission held on 03.08.2008 or the decision
taken therein; and (iii) the unusual manner in which the ‘loose
sheet’ has been prepared casts a serious doubt on its
genuineness. The so-called decision dated 03.08.2008 was thus
apparently contrived to defeat the cause of the writ-petitioners
and to mislead the learned Single Judge, who has rightly held
that it was only when he directed to produce the criteria of
selection that this ‘loose sheet’ “was prepared and produced in
Court”.
Ratification
(43) We may now deal with the plea of ‘ratification’
heavily banked upon by the appellants.
LPA No.1555 of 2012 - 42 -
(44) The expression “ratification” according to Black’s
Law Dictionary (Ninth Edition) means “confirmation and
acceptance of a previous act, thereby making the act valid from
the moment it was done…”. It has been further illustrated
saying that “this sense includes action taken by the legislature
to make binding a treaty negotiated by the executive”. The act of
‘ratification’ by the competent authority must acknowledge the
previous decision taken by a person who was otherwise
incompetent to take such decision, and thereafter it must
consciously approve such invalid decision. In Punjab
University vs. VN Tripathi, (2001) 8 SCC 179, the Registrar
of the University was not a stranger to the legal proceedings
rather Section 21 of the Punjab University Act, 1947 says that
he shall represent the University in all legal proceedings. The
Senate of the University vide Resolution dated 29.09.1991
expressly stated that “the action taken by the Registrar/Vice
Chancellor in cases where suits had already been filed or
appeals preferred by them stood ratified”.
(45) In Jugraj Singh & Anr. vs. Jaswant Singh &
Anr., (1970) 2 SCC 386, the second Power of Attorney
expressly stated that the first Power of Attorney was defective
and was being ratified. The illegality was thus cured from the
date it had taken place. In Parmeshwari Parsad Gupta’s
LPA No.1555 of 2012 - 43 -
case (supra), the Resolution passed by the Board of Directors of
the Company without notice to one of its Directors though was
found to be invalid but it was held that the decision taken vide
that Resolution could be ratified in a regularly constituted
meeting of the Board. The other decisions relied upon by the
appellants also reiterate that ratification can cure the defect
from the date it occurred.
(46) The above-noticed plea, in our considered view, is
not available in the instant case, for the reason that in its socalled
decision dated 03.08.2008, the Commission has neither
acknowledged any previous illegal decision of its Chairman
laying down the ‘selection criteria’ nor has it ratified such a
decision. The act of ratification has to acknowledge the previous
decision of an incompetent authority and then only can it be
ratified. What was insisted before the learned Single Judge
and reiterated before us is that it was the Commission, as a
multi-Member body, who laid down the ‘selection criteria’
which the Interview Committees followed. Had it been so,
where does the question of any ratification arise? We thus find
no merit in the unfounded contention.
Estoppel
(47) Adverting to the plea of estoppel pressed against the
writ-petitioners on the premise that they having participated in
LPA No.1555 of 2012 - 44 -
the selection process could not turn around and make wild
allegations against the functioning of the Commission. There
can indeed be no quarrel on the legal principles re-stated in
Om Parkash Shukla’s case (supra) and catena of other
decisions that the candidates who appeared in the examination
or participated in the selection process on being unsuccessful,
cannot be permitted to question the validity of examination or
of its selection criteria and they shall indeed be estopped by
their act or conduct from raising such issues.
(48) The afore-stated exposition of law, however, has no
bearing on the facts of the case in hand. The criteria which was
notified before the commencement of the selection process was
admittedly not followed and what has been followed was never
notified till the declaration of the final result. How the
unsuccessful candidates would come to know that the marks for
viva voce stood drastically changed to 30 out of 90 instead of 25
out of 225 till the result was declared?
(49) The selection criteria which saw the light of the day
along with declaration of the selection result could be assailed
by the unsuccessful candidates only after it was made public.
Non-observance of principles of natural justice
(50) This takes us to another contentious issue of alleged
denial of reasonable opportunity of hearing to selected
LPA No.1555 of 2012 - 45 -
candidates by the learned Single Judge. It goes without saying
that no order prejudicial to the interest of a person can be
passed by an administrative, quasi-judicial or judicial forum
without hearing such person. The principle of audi alteram
partem is neither a ritual to be essentially performed even if
not needed nor can it be an empty formality, if mandated. In
the instant case, though the selected candidates were unduly
large in number yet the writ petitioners impleaded them and
many of them were served even before 14.07.2011 whereas
learned Single Judge heard the arguments and reserved
judgement on 02.05.2012. Some of the selected candidates filed
their reply also as noticed by learned Single Judge. All of them
were duly served through a public notice published on
21.03.2012. They had thus ample opportunity to assist the
learned Single Judge on the legal issues on which the selection
has been faulted. The learned Single Judge has not commented
upon the merits, de-merits or eligibility of any selected
candidate for which counter-affidavit of such candidate could be
necessitated. The twin questions considered by the learned
Single Judge pertained to the competence of Chairman of the
Commission to lay down the criteria as well as the validity of
the selection criteria purportedly laid down by the Commission.
The assistance of selected candidates on both of these issues
LPA No.1555 of 2012 - 46 -
was supplementary and ancillary as the principal respondent
was the Commission. Yet the learned Single Judge gave
adequate opportunity to the selected candidates as well. The
plea that they have been condemned unheard is thus totally
baseless and contrary to record.
(51) Similarly, the half-hearted contention that no roving
enquiry could be made or that the learned Single Judge has
quashed the selection on the grounds never pleaded by the
writ-petitioners are also to be noticed and rejected. Once the
selection criteria disclosed on 11.04.2010 was expressly
challenged, the learned Single Judge in his endeavour to do
justice to the parties, was well within his jurisdictional
competence to summon the records and having found that the
functioning of a multi-Member body stood completely hijacked
by the Chairman, rightly annulled the ex facie arbitrary and
illegal selection.
(52) It is only a feeble attempt made by the appellants to
circumscribe the jurisdictional powers of the learned Single
Judge as a writ Court under Article 226 of the Constitution.
Suffice it to observe that a writ petition cannot be thrown out
only on the ground that the facts, not even in the knowledge of
a writ-petitioner and to which he had no access also, have not
been explicitly pleaded. Once the writ court, on perusal of the
LPA No.1555 of 2012 - 47 -
summoned record, is satisfied that the fundamental rights of a
petitioner have been violated, it is the bounden duty of the
Court to pass suitable order to protect such rights and/or to
compel the enforcement of the legal duty by the respondent(s).
(53) In all fairness and keeping in view the fact that
some of the writ petitioners have also preferred LPA Nos.1595,
1760, 1967, 2194 of 2012; and 303 of 2013 on the plea that the
learned Single Judge ought to have gone into the allegations
made against individual selected candidates, we called upon
the writ-petitioners to tabulate such allegations and supply the
same to the Commission as well as the selected candidates, who
in turn, have also given their respective response(s) to those
allegations. Learned counsel for the parties were heard in
support and against these allegations so that, if need be, the
same could be decided on merits. However, in view of our
findings on the legal issues, we do not deem it necessary to deal
with individual allegations but cannot refrain from observing
that the Commission and the State Government must observe
due care and caution in entertaining the applications or
accepting the qualifications relied upon by the applicants. Why
the Education Department was in such a great hurry or overly
anxious to give appointment to the selected candidates with
doubtful academic credentials, is beyond anyone’s
LPA No.1555 of 2012 - 48 -
comprehension. The proper and desired course would have
been to verify the genuineness of certificates and credentials
and then offer appointment.
(54) For the reasons afore-stated, we uphold the decision
of the learned Single Judge and consequently :-
(i) LPA Nos.1841 & 1903 of 2012 filed by the Haryana
Staff Selection Commission are dismissed with cost
of Rs.50,000/- each to be deposited with the High
Court Legal Services Committee within a period of
one month;
(ii) LPA No.1562, 1831 to 1839, 1842 to 1855, 1879 to
1902, 1904 to 1917, 1997, 2002, 2028 of 2012; 248 &
262 of 2013 jointly filed by the State of Haryana and
the Haryana Staff Selection Commission are
dismissed with cost of Rs.10,000/- in each case to be
deposited with the High Court Legal Services
Committee within one month;
(iii) LPA Nos.1555, 1557, 1592, 1594, 1856 to 1860, 1870
to 1878, 1918 to 1920, 1950 of 2012; 529 of 2013
filed by the selected candidates are dismissed with
cost of Rs.10,000/- each to be deposited in the High
Court Lawyer Welfare Fund within one month;
LPA No.1555 of 2012 - 49 -
(iv) LPA Nos.1595, 1760, 1967, 2194 of 2012; and 303 of
2013 filed by the writ-petitioners are disposed of in
the light of the observations made in para-53 of this
Court;
(55) Photostat copies of the four files containing original
notings and decisions taken by the Commission or its
Chairman from time to time, the decision dated 03.08.2008
have been retained and shall be kept as a part of the judicial
record. The original record be returned to the Commission
under receipt.
(56) Ordered accordingly. Dasti.
(Surya Kant)
Judge
30.09.2013
vishal shonkar
(Surinder Gupta )
Judge
CHANDIGARH
****
LPA No.1555 of 2012 (O&M)
Date of Decision: 30.09.2013
****
Vijay Kumar & Ors. . . . . Appellants
VS.
Sanjeev Kumar & Ors. . . . . Respondents
****
CORAM: HON’BLE MR.JUSTICE SURYA KANT
HON’BLE MR. JUSTICE SURINDER GUPTA
****
1. Whether Reporters of local papers 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?
****
For appellants:- Mr. HS Hooda, Advocate General, Haryana
with Mr. DS Nalwa, Addl. AG Haryana;
Mr. Rajiv Atma Ram, Senior Advocate;
Mr. R.K. Malik, Senior Advocate;
Mr. Girish Agnihotri, Senior Advocate;
Messrs Arjun Pratap Atma Ram, Nikhil
Sharma, B.Jeet Sheoran, Vikram Singh,
Rajesh Lamba, Ashutosh Kaushik, Dilbagh
Singh, Advocates.
For private
respondents :-
Mr. Vivek Khatri, Advocate
Mr. Ramesh Goyal, Advocate
Mr. SS Dinarpur, Advocate
Mr. Rajinder Singh, Advocate
Mr. Sudhir Mittal, Advocate
Ms. Alka Chatrath, Advocate
Mr. Rajneesh Chadwal, Advocate
Mr. Arun Takhi, Advocate
Mr. Madan Pal, Advocate
Ms. Vandana Sharma, Advocate
Mr. V.D. Sharma, Advocate
Mr. Jagbir Malik, Advocate
Mr. Ferry Sofat, Advocate
Mr. Vikrant Rana, Advocate
Mr. Viney Saini, Advocate
Mr. Ramesh Goyal, Advocate
Mr. Arihant Goyal, Advocate
Mr. Ravi Gakhar, Advocate for
Mr. Jagdish Manchanda, Advocate.
Ms. Ramandeep Kaur, Advocate
LPA No.1555 of 2012 - 2 -
Mr. Anil Malik, Advocate
Mr. Surinder Singh Duhan, Advocate
Mr. Ashwani Verma, Advocate
Mr. Dinesh Arora, Advocate
Mr. SP Chahar, Advocate
Mr. Neeraj Kumar, Advocate
Mr. Rajesh Sheoran, Advocate
Mr. Rajender Goyal, Advocate
Mr. Robin Lohan, Advocate
Mr. Sandeep Singh, Advocate
Mr. Vikram Singh, Advocate
****
SURYA KANT, J.
(1) This order shall dispose of LPA Nos.1555, 1557,
1562, 1592, 1594, 1595, 1760, 1831 to 1839, 1841 to 1860, 1870
to 1920, 1950, 1967, 1997, 2002, 2028, 2194 of 2012; 248, 262,
303, 529, 814 of 2013 as all these appeals have arisen out of a
common order dated 11.09.2012 whereby the learned Single
Judge while allowing a bunch of writ petitions has quashed the
selection to the post of Physical Training Instructors (PTIs)
made pursuant to the Advertisement No.6/2006, the result
whereof was published on 11.04.2010 and has directed the
Haryana Staff Selection Commission to hold fresh selection in
accordance with law. The appeals preferred by the selected
candidates, State of Haryana and the Haryana Staff Selection
Commission [excluding LPA Nos.1595, 1760, 1967, 2194 of
2012; and 303 of 2013] have been clubbed together as common
question of law and facts are involved. LPA No.1555 of 2012
LPA No.1555 of 2012 - 3 -
preferred by 1616 selected candidates, is treated as the lead
case.
(2) LPA Nos.1595, 1760, 1967, 2194 of 2012; and 303 of
2013 are at the instance of some of the writ-petitioner(s) they
being partly dis-satisfied with the order of the learned Single
Judge as the issue of ‘ineligibility’ and ‘disqualification’ of some
of the selected candidates expressly raised by them have not
been gone into by learned Single Judge. In view of the
commonality of the point in issue, these cross-appeals are also
taken up along with the main appeals.
(3) The facts may be noticed briefly. Vide
Advertisement dated 20th July, 2006, Haryana Staff Selection
Commission (in short, ‘the Commission’) invited applications
for recruitment to 1983 posts of Physical Training Instructors
(PTIs) out of which 940 posts were for the General category,
400 for Scheduled Castes (A&B sub-categories), 534 for
Backward Classes (A&B sub-categories), 72 for Ex-servicemen
(General) while the remaining posts were reserved for various
other categories. The required qualification was Matriculation
from Haryana School Education Board or its equivalent along
with “Certificate in Physical Education conducted by Haryana
Education Department or an equivalent qualification
recognized by the Haryana Education Department” and also
LPA No.1555 of 2012 - 4 -
the knowledge of Hindi upto Matric standard. For Exservicemen
the prescribed qualification was Middle standard
with training in Physical Education from a Military School.
The last date for submission of application form was 21st
August, 2006.
(4) The advertisement also contained instructions given
to candidates including the following ‘Special Instructions’:-
“The prescribed essential qualification does
not entitle a candidate to be called for
interview. The Commission may short list
the candidates for Interview by holding a
written examination or on the basis of a
rationale criteria to be adopted by the
Commission. The decision of the
Commission in all matters relating to the
acceptance or rejection of an application,
eligibility/suitability of the candidates, mode
of, and criteria for selection etc. will be final
and binding on the candidates. No enquiry
or correspondence will be entertained in this
regard.”
(Emphasis applied)
(5) The appellants as well as writ-petitioners/private
respondents applied in response to the above-stated
advertisement. They were informed vide public notice dated
28.12.2006 that a Written Test consisting of 100 Objective Type
multiple-choice questions with each question carrying two
LPA No.1555 of 2012 - 5 -
marks, shall be held on 21.01.2007. The public notice also
stipulated that ‘minimum qualifying marks’ for General
category candidates were 50%, for Scheduled Castes, Backward
Classes and other reserved categories (except ESM) it were 45%
and for ESM 40%. “Twenty five marks were assigned for
the viva voce”.
(6) The appellants and the private respondents
appeared in the written test held on 21.01.2007 but vide a
subsequent public notice dated 01.02.2007, the Commission
notified that due to receipt of several complaints with regard to
malpractice and cheating committed at various examination
centres, the written examination held on 21.01.2007 stood
cancelled.
(7) The Commission then issued another public notice
on 11.06.2008 informing the candidates that the written
examination will now be held on 20.07.2008. The selection
criteria like minimum qualifying marks in the written test or
viva voce as published on 28.12.2006 was kept intact.
(8) The Commission issued a public notice on
20.06.2008 cancelling the written test scheduled to be held on
20.07.2008 ‘for administrative reasons’.
(9) Thereafter yet another public notice dated
12.07.2008 was issued by the Commission informing its
LPA No.1555 of 2012 - 6 -
decision to short-list the candidates, eight times of the
advertised posts in their respective categories, for interview on
the basis of essential academic qualifications mentioned in the
advertisement.
(10) The short-listed candidates were to be interviewed
as per the original schedule from 02.09.2008 till 17.10.2008.
(11) The Commission, however, again did not honour its
decision and issued yet another notice on 31.07.2008 whereby
‘on careful reconsideration of the matter’, it decided to call all
the eligible candidates, namely, those possessing the minimum
essential qualification, for interview as per the revised schedule
starting from the month of September, 2008.
(12) There were in all 15882 candidates who were
interviewed by different Selection Committees and after about
1½ year, the result was declared on 10.04.2010 which was
published on 11.04.2010. The ‘selection criteria’ adopted by the
Commission as published by it along with the final result was
to the following effect:-
“Criteria adopted for selection :-
The criteria adopted by the Commission for
making selection is given below :-
1) Academic marks 60 marks
2) Marks obtained in the
viva-voce out of 30 marks
Total : 90 marks.”
LPA No.1555 of 2012 - 7 -
(13) Some of the unsuccessful candidates felt aggrieved
and challenged the selection. The learned Single Judge has
sustained their challenge and quashed the selection, inter alia,
observing that:
(a) in view of ‘Special Instructions’ inserted in the
advertisement, the possession of essential
qualifications alone could not entitle a candidate to
be called for interview;
(b) the Commission having resorted to short-listing the
candidates by holding written examination could not
have backtracked and interviewed all the candidates
possessing basic qualifications;
(c) once the Commission laid down the ‘selection
criteria’ of ‘written examination’ comprising 200
marks and 25 marks for viva voce, the same could
not have been changed in the midst of the selection
process;
(d) the so-called ‘selection criteria’ published along with
the result was never laid down by the ‘Commission’
as a multi-Member body as at no stage they
assembled to take a decision in this regard;
LPA No.1555 of 2012 - 8 -
(e) the criteria actually applied for the selection was a
‘single-member decision’ taken by the Chairman of
Commission;
(f) there was an attempt to mislead the Court by
producing a decision purported to have been taken
by the Commission on 03.08.2008 which was
prepared only when the Court directed to produce
the selection criteria evolved by the Commission;
(g) the decision taken by the Chairman was in utter
violation of the Government notifications dated
21.05.1971; 09.12.1997; 28.07.1998 and 21.06.2007
constituting the Commission and laying down its
functions and powers as also prescribing its
composition. These notifications were issued under
proviso to Article 309 of the Constitution and were
statutory in character;
(h) the entire selection was the handiwork of the
Chairman and not of the multi-Member body.
(14) The other grounds pressed into aid by the private
respondents in respect of de-merits or ineligibility of one or the
other selected candidates were not gone into by the learned
Single Judge and the writ petitions were allowed on the abovenoticed
legal issues only.
LPA No.1555 of 2012 - 9 -
(15) The aggrieved parties have preferred these appeals
in support whereof, learned Advocate General, Haryana,
Sarvshri Rajiv Atma Ram, RK Malik and Girish Agnihotri,
Senior Advocates and a battery of other lawyers were heard for
a considerable length. Similarly, an unrestricted time was
given to counsel for the respondent/writ-petitioners. The
original records of the Commission were summoned and have
been perused.
(16) Learned Advocate General urged that:-
i. neither there are allegations of mala fide nor such
allegations have been proved hence the entire
selection ought not to have been set aside;
ii. the writ-petitioners who appeared for viva voce
without any protest and competed for their selection
but challenged the selection on failing, are estopped
by their act and conduct. The decisions in (i) Om
Parkash Shukla vs. Akhilesh Kumar Shukla &
Ors., (1986) Suppl. SCC 285; (ii) Sanjay Kumar
& Ors. vs. Narinder Verma & Ors., (2006) 6 SCC
467; and (iii) Pitta Naveen Kumar & Ors. vs.
Raja Narasaiah Zangiti & Ors. (2006) 10 SCC
261 were relied upon;
LPA No.1555 of 2012 - 10 -
iii. in para-12 of its decision in the State of Haryana
vs. Subash Chander Marwaha & Ors. (1974) 3
SCC 220, Supreme Court has clearly laid down that
where the decision of State Government to introduce
a new Rule by which appointments of the candidates
who scored not less than 55% marks could be
restricted, was valid as “this is essentially a matter
of administrative policy…” and the ‘selection
criteria’ also being a policy decision taken by the
expert-body, the learned Single Judge need not have
interfered with the same;
iv. the question that “Rules of the game which cannot be
changed after the game is either commenced or
played”, has been referred by the Supreme Court to
a larger Bench for authoritative pronouncement in
Tej Parkash Pathak & Ors. vs. Rajasthan High
Court & Ors., (2013) 4 SCC 540;
v. in view of pronouncement in Girjesh Shrivastava
& Ors. vs. State of MP & Ors., (2010) 10 SCC
707, no order against the selected candidates could
be passed by learned Single Judge without
impleading them as party and without giving an
opportunity of hearing. Another decision in Union
LPA No.1555 of 2012 - 11 -
of India and Ors. vs. Rajesh PU
Puthuvalnikathu, (2003) 7 SCC 285 was also
relied upon to urge that even if there were some
irregularities in the selection of one or a few
candidates who got benefit of such irregularities, it
was not justified or warranted to cancel the entire
selection and deprive the other selected candidates
of their right to appointment. The allegations of
lack of eligibility of some of the selected candidates
were refuted and it was asserted that all of them
possess Degree(s) instead of Diploma in the relevant
stream which is a higher qualification, as ruled by
this Court in (i) Charan Singh & Ors. vs. State of
Haryana & Anr., 2004 (3) RSJ 611; and (ii)
Manoj Kumar & Ors. vs. State of Haryana &
Ors., 2007 (1) SLR 684;
vi. it was explained that no ‘overage’ candidate was
selected as the writ-petitioners have completely
overlooked the Government instructions contained
in Circular No.11/97/7.10 which says that “if a
J.B.T./B.Ed./M.Ed. applicant and also the
applicant who has passed his/her Classical &
Vernacular examination (Hindi, Punjabi, Sanskrit/
LPA No.1555 of 2012 - 12 -
Art and Craft/ Home Science/ S.V./ S.T./ P.T.I./
Tailoring Teachers) gets his/her name registered
with an Employment Exchange within the age limit
prescribed by Govt. for first entry into Govt. Service
and becomes overage before getting regular
employment his/her maximum age limit can be
relaxed to the extent as required for first entry into
Govt. Service. Accordingly, applicants who become
overage will approach the Employment Exchange to
enable them to get the benefit of relaxation in the
maximum age limit for example the age limit for
teacher/Masters has been increased from 30 years to
35 years vide Chief Secy. Letter No.3/1/90-IGS-III
dated 5-9-90 hence it is clarified that applicants who
have got registered their name in the trade of
Teacher/Masters before 5-9-90 after completing the
age of 30 years and have not crossed the age of 35
years, they are to be considered within age limit for
Govt. Service...”
vii. similarly, Government instructions circulated vide
UO No.3/3/99-1GS-III dated 22.09.1999 were
referred to contend that relaxation of five years in
the upper age limit was admissible to the candidates
LPA No.1555 of 2012 - 13 -
belonging to Backward Classes also at par with
Scheduled Castes candidates;
viii. it was then argued that power to prescribe the
criteria for viva voce just a few days before
commencement of interviews, if so necessitated or
permissible under the Rules, has been approved by
the Apex Court in Barot Vijay Kumar
Balakrishna & Ors. vs. Modh Vinay Kumar
Dasrath Lal & Ors., (2011) 7 SCC 308 and that
the allocation of marks for viva voce in the instant
case in any case is consistent with the principles laid
down by the Supreme Court in Anzar Ahmad vs.
State of Bihar & Ors., (1994) 1 SCC 150;
ix. Equity – as the last rescuer, was also brought into
aid of the selected candidates submitting that they
are working since the year 2010 hence deserve to
continue.
(17) The contentions raised by other learned senior
counsel(s) on behalf of the selected candidates may also be
summed up as follows:-
i. a substantial number of selected candidates were
not heard by the learned Single Judge before setting
aside their selection; the selected candidates were
LPA No.1555 of 2012 - 14 -
impleaded as party respondents by way of Civil
Misc.No.17080 of 2011 which was allowed on
16.12.2011 and they were issued notice in the main
case for 02.05.2012. The Registry reported for
02.05.2012 that “1389 notices have been
received/served. 53 notices have been received
unserved. 320 notices have not been received either
unserved or served.”. The learned Single Judge did
not deem it appropriate to effect service on the
unserved selected candidates and heard the
arguments and reserved judgement on 02.05.2012
itself. The decisions of this Court in (i) Anoop
Singh versus State of Haryana,2008 (2) RCR
(Civil) 626; and (ii) dated 7th September, 2009
passed in RA No.332 of 2006 in CWP No.16873 of
2004 (iii) dated 20th May, 2013 in LPA No.1864 of
2012 and other connected appeals (Parminder
Kaur & Ors. vs. Dalbir Singh & Ors.) lay down
that an order passed without notice to the persons
interested, stands vitiated and cannot sustain;
ii. the only plea that the ‘selection criteria’ was
changed amidst the selection process was factually
incorrect and could not be raised by the writLPA
No.1555 of 2012 - 15 -
petitioners who were estopped by their acts and
conduct. The decisions of the Hon’ble Supreme
Court in Dr. G.Sarana vs. University of
Lucknow, (1976) 3 SCC 585 and of this Court in (i)
Surinder Kaur & Ors. vs. State of Punjab &
Ors., 1995 (5) SLR 579; and (ii) Baljinder Singh
Teja & Anr. vs. Punjab & Haryana High Court,
Chandigarh, 2008 (3) SLR 598 have been relied
upon;
iii. the vague, evasive and sweeping allegations made
against eligibility of some of the selected candidates
with the sole object of getting the records summoned
for holding a roving enquiry, ought not to have been
entertained as ruled by the Supreme Court in
Sadananda Halo and Ors. vs. Momtaz Ali
Sheikh & Ors. (2008) 3 SCC 619;
iv. the selection has been set aside on the ground(s) like
lack of competence in formulation of the ‘selection
criteria’ which was neither pleaded nor urged. The
learned Single Judge ought not to have improved
the case of writ-petitioners by summoning the
original records and then opining that the ‘selection
criteria’ was laid down by the ‘Chairman’ and not by
LPA No.1555 of 2012 - 16 -
the ‘Commission’. Such a recourse is impermissible
in law as is held in (i) Ganeshi Ram vs. District
Magistrate, AIR 1967 SC 356; and (ii) BSN Joshi
& Sons Ltd. vs. Nair Coal Services, (2006) 11
SCC 548;
v. there is a mark distinction between ‘change in
criteria’ and ‘change in the method of selection’
which has been overlooked by learned Single Judge.
The ‘selection criteria’ of 60 marks for
basic/essential qualifications and 30 marks for viva
voce adopted by the Commission in the instant case
has got an implied seal of approval of this Court in
Jagmal vs. State of Haryana & Ors., (2007) 1
SLR 177 where the selection criteria comprising
50% marks for academic performance and 50% for
viva voce was held to be not suffering from any
arbitrariness. The minor changes in the selection
criteria, if at all, cannot have devastating effects like
quashing of the selection of thousands of candidates
as observed by the Apex Court in Chandra
Parkash Tiwari vs. Shakuntla Sukla, (2002) 6
SCC 127;
LPA No.1555 of 2012 - 17 -
vi. the ‘principle of ratification’ is fully attracted to the
facts and circumstances of the case in hand as (a) no
member of the Commission has objected to the
selection by interview only; (b) all the Members have
taken interview; and (c) all the Members have
prepared the result. Various judicial-precedents
decisions including in (i) Parmeshwari Prasad
Gupta vs. Union of India, (1973) 2 SCC 543; (ii)
Union of India vs. Sukumar Sen Gupta & Ors.,
(1990) Suppl. SCC 545; (iii) M/s Shankar Dass
Rup Lal Aggarwal vs. Governor-General-in-
Council, 1951 PLR 231; and (iv) SS Lamba vs.
Punjab State Leather Development
Corporation, 1994 (4) SCT 192 have been relied
upon to say that ‘ratification’ can be by actual
implementation or by conduct and it will have
retrospective effect from the date the original order
was passed;
vii. the Supreme Court in (i) AA Calton vs. Director of
Education, (1983) 3 SCC 33; and (ii) NT Devin
Katti etc. vs. Karnataka Public Service
Commission & Ors. (1992) 2 SLR 378 has laid
down that the selection process starts with the
LPA No.1555 of 2012 - 18 -
issuance of ‘advertisement’. The ‘selection criteria’
relied upon by the writ-petitioners was also not
formulated prior thereto, hence the so-called original
criteria as well as the revised one both were evolved
during the ‘course of selection’ only;
viii. the factual pleas on ‘age limit’ of selected
candidates, ‘recognition’ of their ‘academic
qualifications’, ‘genuineness’ of the academic
certificates, ‘equivalence’ of the basic or essential
qualifications etc., were raised by the writpetitioners
only to open the Pandora’s box full of
disputed facts which could neither be proved nor
decided in exercise of writ jurisdiction;
ix. the qualifications possessed by the selected
candidates are duly recognized by the University
Grants Commission and since the State Government
or its agencies have no role to play in this regard,
the unfounded allegations of accepting unrecognised
qualifications are totally false and
baseless. Two decisions of this Court in (i) Charan
Singh & Ors. vs. State of Haryana, 2004(3) RSJ
611; and (ii) Manoj Kumar & Ors. vs. State of
LPA No.1555 of 2012 - 19 -
Haryana & Ors., 2007(1) SLR 684, were cited in
the aid of this contention.
(18) We may now take precise note of the submissions
made on behalf of private respondents/writ-petitioners in
support of the view taken by the learned Single Judge. It was
urged that:-
i. the selected candidates were impleaded as party
respondents in most of the writ petitions and
repeated efforts were made to serve them. In fact,
hundreds of selected candidates were duly served
even before 14.07.2011 as is evident from the
contents of the order passed on that date in CWP
No.2613 of 2011 and other connected matters, the
relevant part whereof reads as follows:-
“Written statement on behalf of respondent
No.2 filed in CWP No.2613 of 2011 in Court
today, is taken on record.
Following respondents have been served:-
3 to 6, 8 to 10, 13 to 17, 19, 21, 23 to 27, 29
to 32, 34, 35, 37 to 43, 48 to 50, 53 to 58, 60
to 63, 65 to 69, 74 to 76, 78, 81, 87, 94, 102,
103, 127, 132, 134, 138, 143 to 145, 164, 176
to 178, 182 to 185, 189 to 195, 204, 207, 213,
215 to 217, 227, 232, 239, 240, 242 to 244,
246, 249, 254 to 258, 305 and 309.
LPA No.1555 of 2012 - 20 -
Following respondents have been served
through their relations, which shall be deemed
to be proper service.
18, 20, 22, 28, 45, 52, 72, 77, 79, 80, 92, 95,
96, 101, 106, 117, 120, 121, 123, 124, 128,
130, 131, 135, 140, 172, 173, 183, 187, 205,
208 to 212, 218 to 220, 231, 233 to 238, 245,
247, 248, 250, 252 and 253.
Notices issued to respondent Nos.12, 46, 47,
73, 93, 122, 125, 126, 181, 214, 221 and 222
received back unserved due to wrong or
incomplete addresses. Counsel for the
petitioners may furnish complete and correct
addresses of these respondents.
Notices issued to the following respondents
have not been received back served or
otherwise:-
7, 11, 36, 44, 51, 59, 70, 82 to 86, 88 to 91, 98
to 101, 104, 105, 107 to 111, 119, 129, 134,
136, 137, 139, 141, 142, 146 to 163, 165 to
171, 174, 175, 179, 180, 186, 188, 196 to 203,
206, 223 to 226, 228 to 230, 241, 246, 259 to
304, 306 to 308 and 310.
Notice issued to respondent No.97 has been
received back with the report ` he is dead'.
Counsel for the petitioners to take necessary
steps for impleading his L.Rs.
It is noticed that large number of writ
petitions have been filed to challenge the
selection of PTI. The factual issue may be
different in these petitions, but primary issue
relates to the mode and manner of selection.
LPA No.1555 of 2012 - 21 -
Counsel for the parties agree that the service to
the un-served respondents be dispensed with for
motion hearing. If required, such respondents
may be served subsequently. Mr.Rathee is
requested to complete the proceedings in this
petition, which is taken as a lead case.
Mr.Rathee would also make an endeavour to
complete the proceedings in as many cases as
possible, so that submissions in these cases can
be heard.
Counsel for the respective parties in these
writ petitions would be at liberty to make their
submissions on the date fixed.
Adjourned to 12.10.2011.
In the meantime, the served respondents
may complete the proceedings.”
(Emphasis applied)
ii. the writ petitioners thereafter applied to effect
service on the rest of the selected candidates
through substituted service for which public notice
was duly published in the daily ‘The Tribune’ on
21.03.2012, well in advance before the next date of
hearing on 02.05.2012. The public notice
unambiguously clarified that if the selected
candidates fail to appear, the case “will be heard
and decided in their absence”.
LPA No.1555 of 2012 - 22 -
iii. in a case where the number of selected candidates is
unduly large, they could be impleaded in a
representative capacity also and such impleadment
will be a substantial compliance of principles of
natural justice as held by Supreme Court in
Prabodh Verma & Ors. vs. State of UP & Ors.,
(1984) 4 SCC 251.
iv. otherwise also, the failure of the Court in not
hearing a party before passing an adverse order, is
not an incurable defect as effective remedies like
review petition, Letters Patent Appeal and petition
under Article 136 before the Apex Court are very
much available to the affected party as observed by
Supreme Court in State of Punjab & Ors. vs.
Satnam Kaur & Ors., 2006(1) RSJ 290;
v. moreover, when enormous malpractices are
committed or the procedure adopted in the selection
process flagrantly offends Articles 14 & 16 of the
Constitution, no notice is required to be issued to
the beneficiaries of illegal largesse. The Supreme
Court decisions in (i) Biswa Ranjan Sahoo & Ors.
vs. Sushanta Kumar Dinda & Ors., (1996) 5
SCC 365 and (ii) Union of India & Ors. vs. O.
LPA No.1555 of 2012 - 23 -
Chakradhar, (2002) 3 SCC 146 have been
referred to in this regard;
vi. the learned Single Judge has not decided the case on
the basis of allegations made against individual
selected candidates. The selection has been set
aside on legal principles based upon the
administrative decisions of the Commission or its
Chairman. They were duly heard. Nothing could be
contributed by the selected candidates to explain
internal functioning of the Commission, hence no
prejudice has been caused to them. In fact, the
findings on the mal-functioning of the Commission
could be returned even in the absence of pleadings
and only on perusal of the official record of the
Commission which was duly summoned. [Ref.
Surya Dev Rai vs. Ram Chander Rai & Ors.,
(2003) 6 SCC 675];
vii. the writ-petitioners have specifically challenged the
selection broadly on two grounds, namely, (a) the
Commission cannot change the ‘criteria’ mid-stream;
and (b) the changed ‘criteria’ adopted by the
Commission was totally arbitrary and open to
misuse. The learned Single Judge found that the
LPA No.1555 of 2012 - 24 -
criteria of selection was illegally changed not by the
Commission but by its Chairman;
viii. the plea of ‘ratification’ of changed ‘criteria’ is totally
farce and baseless for the reasons that (a) the
Commission as a public authority is duty-bound to
act in accordance with rules, regulations and
byelaws which do not vest any power in the
Chairman to lay down the ‘selection criteria’ on his
own; (b) Clause (d) of Para-6 of the Government
Notification dated 21.06.2007 mandates that it is
the ‘Commission’ who shall devise the mode of
selection and fix the criteria for selection; (c) there is
no ‘power of delegation’ under the statutory
Notifications entrusting functions and duties to the
Commission; (d) there was no authorization by other
members of the Commission in favour of the
Chairman to change the criteria; and (e) the action
of the Chairman was void ab initio to which the
principle of ‘ratification’ does not apply. Reliance
has been placed on the decisions in (i) Marathwada
University vs. Seshrao Balwant Rao Chavan,
(1989) 3 SCC 132; (ii) Haryana Seeds
Development Corporation vs. Shri JK
LPA No.1555 of 2012 - 25 -
Aggarwal, (1989) 1 SLR 381; and (iii) Darshan
Lal vs. State of Haryana, (1999) 1 RSJ 607;
ix. the principle of estoppel cannot be invoked against
the writ petitioners as the changed ‘criteria’ was
never notified till the date of publication of the
selection result. The writ petitioners appeared for
viva voce on the assumption that the selection
criteria as notified earlier would be followed.
Moreover, in a case like this where provisions of
subordinate legislations have been violated, estoppel
cannot be applied against law. Reliance was placed
on (i) ITC Bhadrachalam Paper Board vs.
Mandal Revenue Officer, A.P. (1996) 6 SCC 634;
and (ii) Delhi-Assam Roadways Corporation
Ltd. vs. Haryana Urban Development
Authority, (2008) 3 Recent Civil Reports 389;
x. the change in criteria due to increase in viva voce
marks from 25 out of 225 marks to 30 out of 90
marks has severely prejudiced a number of writ
petitioners who could not be selected;
xi. the order passed by the Hon’ble Supreme Court in
Tej Parkash Pathak’s case (supra), referring the
matter to a larger Bench is distinguishable as the
LPA No.1555 of 2012 - 26 -
reference pertains to the short-listing of candidates
on the basis of higher merit;
xii. the selection criteria was changed by the Chairman
with mala fide intention to adjust the near and dear
ones of affluent persons. Even the learned Single
Judge apprehended the tampering with or
manipulation in the records and, therefore, directed
to keep photocopies of the record produced in Court
in a sealed cover;
xiii. the impugned selection made solely on the basis of
‘interview’ without following any reasonable or
relevant parameters with reference to qualifications,
experience, curricular and sports activities etc., is
neither fair and just nor does it inspire any
confidence. The Division Bench decision of this
Court in Babita Rani vs. Punjabi University,
Patiala & Ors., 2012 (2) SLR 524 was cited to
support the plea;
xiv. the learned Single Judge ought to have gone into the
allegations made against individual candidates also
as it would have peeled through the false plea of
selecting eligible and suitable candidates only.
LPA No.1555 of 2012 - 27 -
(19) Let the relevant facts of the case be recapitulated
before we dwell upon the rival contentions raised on behalf of
the parties.
(20) The advertisement (Annexure P1) contained ‘Special
Instructions’ according to which “the Commission may short-list
the candidates for interview by holding a written examination
or on the basis of a rationale criteria…”. It was thus within the
discretion of the Commission to evolve some fair and just
criteria for short-listing the candidates, if it so wanted. The
Commission indisputably took a conscious decision to short-list
the candidates through a written examination consisting of 200
marks which was held on 21st January, 2007. The notice
(Annexure P2) categorically mentioned that “keeping in view
the large number of applications, the Haryana Staff
Selection Commission has decided to hold the written
examination as per schedule given below…”. The public
notice further specified that written test shall consist of “100
objective type multiple choice questions….. and each
question will carry two marks. The candidates will have
to secure the minimum qualifying marks in the written
test…” i.e. General Category – 50%, SC/BC – 45%, ESM – 40%
and DESM/Sportspersons – as per their categories as General,
SC/BC. The notice also specified that “Viva-voce will be of 25
LPA No.1555 of 2012 - 28 -
marks”. It was then mentioned that “as per law laid down by
the Hon’ble Apex Court, candidates equal to three times of the
number of vacancies will be called for interview based on their
performance in the written test. The total marks obtained in the
written test and viva-voce will determine the merit of the
candidates in their respective categories.”. (Emphasis applied)
(21) The written-test was, however, scrapped vide public
notice dated 01.02.2007 and was decided to be held afresh on
20.07.2008, though it was cancelled again and instead vide
another public notice dated 12.07.2008, the Commission
decided to short-list candidates, eight-times in number of the
advertised posts in their respective categories, on the basis of
essential academic qualifications.
(22) There was thus a definite and conscious decision
taken by the ‘Commission’ to select the candidates on the basis
of a written test and viva voce which was otherwise highly
desirable keeping in view the fact that over twenty thousand
candidates had applied. The Commission did not stick to its
guns and the second method of short-listing the candidates on
the basis of their academic performance was also not followed.
It went ahead to interview all the candidates who had applied
and declared the final result.
LPA No.1555 of 2012 - 29 -
Did there exist valid reasons to scrap the written test
held on 01.02.2007?
(23) The original record comprising four files with
‘notings’ and ‘decisions’ taken with respect to the written
examination/short-listing of the candidates produced before us
reveal, in no uncertain terms, that the decision to select
candidates by way of ‘written examination’ and ‘viva voce’ was
taken by the ‘Commission’. After holding the written
examination on 21.01.2007, the Office put up the following Note
before the Chairman of Commission on 01.02.2007:-
“The Haryana Staff Selection Commission
got the written examination conducted through
the district administration Kaithal and Jind for
the posts of PTI and DPE on 21.1.2007 (Sunday)
from 10.00 a.m. to 11.15 a.m. and 2.00 p.m. to
3.15 p.m, respectively, against Advt.No.6/2006,
Cat.No.23 & 18, respectively.
Nodal Officer-cum-SDM, Jind vide his letter
No.1560-61/Steno, dated 22.1.2007 and the
Centre Superintendent of O.P. Jain Sr.Sec.School,
Kaithal vide letter dated 21.1.2007 have reported
the following irregularities in respect of aforesaid
tests:-
i) CRK College, Jind:- Ms. Raj Bala d/o
Shri Lal Chand after the examination for
the post of PTI was over has taken away
booklet No.12588 with her for which the
Centre Superintendent has lodged an FIR
LPA No.1555 of 2012 - 30 -
No.43 under Section 406 IPC with P.S,
Jind.
ii) Jat.Sr.Sec.School, Jind:- One candidate
bearing Roll No.4100 for the post of DPE
threw out question booklet including OMR
sheet at 2.20 p.m. out of window for which
an FIR No.45 under section 406/120-B IPC
with PS City, Jind has been got registered
by the Centre Superintendent.
iii) Govt. College, Jind:- One candidate
bearing Roll No.13726 for the post of PTI
was red-handed by the Invigilator of the
Centre while using mobile phone for which
the Centre Superintendent has registered an
FIR No.46 has been under section 419 of
IPC with P.S. City, Jind.
iv) S.D. Sr.Sec.School, Jind:- The question
booklet of the candidate bearing Roll
No.9161 for the post of PTI was found less in
number for which the Centre Superintendent
has got registered an FIR with the Police.
v) Happy Sr.Sec.School, Jind:- One
candidate bearing Roll No.17731 for the post
of PTI threw out question booklet including
OMR sheet out of window for which an FIR
No.42 under section 406 IPC with P.S. City,
Jind has been got registered by the Centre
Superintendent.
vi) O.P. Jain Sr.Sec.School, Kaithal:- One
incident of snatching of booklet No/Roll
No.4751 by an unidentified person taken
LPA No.1555 of 2012 - 31 -
place for the post of PTI for which an FIR
No.43 has been lodged with PS, Kaithal.
It is also worthwhile to mention here
that in a Press News has also published in the
Dainik Jagran of dated 22.1.2007 under the
heading “Ab Munnabhai Banenge P.T.I. 20
hazar me bika S.M.S.”. In this newspaper it
has been indicated that at Jind and Kaithal
after the commencement of the examination
the question papers for the posts of PTI and
DPE were leaked out and that the answers of
the question papers were sent to the
candidates through S.M.S. The mobile phones
were used at all the centres openly and
frequently. The question booklets were also
thrown out from the examination centres by
the miscreants.
In view of the aforesaid reports relating
to the examinations of PTI and DPE, it is
quite clear that the leakage of papers has
taken place at Jind and Kaithal immediately
even at the beginning of the examination.
Under these circumstances no option is
left out with the Commission but to cancel the
written examination for the posts of PTI and
DPE held on 21.1.2007. Therefore, the matter
is placed before the Commission to take a
final view in the matter.”
(Emphasis applied by us)
LPA No.1555 of 2012 - 32 -
(24) The above-reproduced Note was ‘approved’ by the
Chairman who further directed that “members of the
Commission may see and sign. Notification may be
issued.”. On that very day, six Members of the Commission
signed the above-stated Note. The written examination was
then scrapped.
(25) The next date of the written examination was
notified and intimation to all the concerned quarters was sent.
However, Superintendent Recruitment-I of the Commission put
up a typed Note dated 30.06.2008 to the following effect:-
“W/Chairman has ordered that the written
test for the post of DPE, Art & Craft Teacher
and PTI, Education Department, Haryana
against Advt. No.6/2006, Cat.No.18, 22 &
23 which have been fixed for 13.7.2008 at
Ambala and on 20.7.2008 at Karnal and
Rewari may be cancelled on administrative
reasons and the Roll Nos. for the
examinations if not issued, be withheld. SS
has told that Roll Nos. have not yet been
issued. Accordingly, Public Notice is placed
below for the approval.”
(Emphasis applied)
(26) On the same date the Chairman approved the Note
as also the notice to be published for cancellation of the
examination. The “administrative reasons” for cancellation of
LPA No.1555 of 2012 - 33 -
the proposed written examination are conspicuously missing in
the Note of the Superintendent as also ‘approval note’ of the
Chairman. This time the Chairman did not deem it necessary
to ask other Members of the Commission to “see” and “sign” –
at least for the sake of formality.
(27) We are of the considered view that the reasons
assigned in the Office Note dated 01.02.2007 for scrapping the
written test held on 21.01.2007 are totally inadequate to justify
the action from any angle. The reports sent by Sub Divisional
Magistrate or Centre Superintendent clearly identified the four
or five candidates who indulged in unfair or unlawful means
and took action against them. These reports do not even
distantly suggest any ‘leakage’ of the question-paper which was
objective type to be attempted on OMR sheets. An
unauthenticated news item, without enquiring or investigating
its contents, was accepted as the gospel truth, completely
overlooking the fact when more than fifteen thousand
candidates have peacefully taken the test, how could it be
cancelled for the misdemeanour of 4-5 identified wrongdoers?
(28) The writ-petitioners appears to have not
exaggerated in alleging that the reports mentioned in the Office
Note dated 01.02.2007 were a ploy to hold off the selection
which was to be largely dependent upon merit in the written
LPA No.1555 of 2012 - 34 -
examination. The subsequent events instead give credence to
their allegations.
(29) File No.3 (Sr.No.1/251/2008-II) starts with an Office
Note which on translation reads that “the brief facts of this case
are as follows. The Secretary discussed the matter with
worthy Chairman and worthy Chairman has issued oral
directions that in respect of advertisement No.6/2006,
Category No.22 of Art & Craft Teachers and Category
No.23 of PTIs Education Department, Advertisement
No.10/2007…., the applicants (candidates) are required
to be short-listed and called for interview. Accordingly,
short-listing for the following posts has been done as per
the percentage of marks required by the candidates as
per their respective categories…”. This Note was endorsed
by the Secretary and ‘approved’ by the Chairman on the same
date i.e. 10.07.2008. No other Member of the Commission has
seen or signed this decision.
(30) The original record contained in File No.4
(Sr.No.1/242/2008-IS) further reveals that the Chairman on
11.07.2008 approved the notice to be published in the
newspapers with details of category-wise percentage of marks
of short-listing based upon academic performance of the
candidates.
LPA No.1555 of 2012 - 35 -
(31) The afore-mentioned File at Page-6 contains another
Office Note dated 31.07.2008, the relevant extracts whereof on
translation read to say – “…in addition, some of the candidates
stage protest in front of residence of worthy Chief Minister
against the notice dated 11.07.2008 regarding short-listing of
the candidates for the posts of PTIs and Art & Craft Teachers.
On re-examination of the application forms, it has been noticed
that only 5000 candidates have been excluded from shortlisting…
hence the matter is put up before the Commission
with a request that keeping in view the resentment of the
candidates, the Commission may re-consider its decision…”.
The Chairman on 31.07.2008 itself “approved” the proposal at
‘A’ and directed to “call all eligible candidates”. No other
Member of the Commission is a party to this decision as well.
(32) The other important Noting is contained at page-28
of the above-stated File where the Office put up the proposal
before the Chairman to constitute Committees to interview the
candidates and that Note was also approved by the Chairman.
The last Office Noting approved by the Chairman is dated
04.10.2008 for the allocation of candidates for their interview to
different Interview Committees. The last page of the File
contains various Office Notes upto 17.10.2008.
LPA No.1555 of 2012 - 36 -
(33) None of these files even casually talks of any
meeting of the Commission as a multi-Member body held on
03.08.2008 or any decision taken therein. It is quite queer as to
when and how the ‘Commission’ met without an agenda or
office proposal and took decision dated 03.08.2008 on a single
‘stray sheet’. Does it mean that the Commission to whom the
solemn duty to protect the fundamental right of thousands of
aspirants, as guaranteed under Article 16 of the Constitution,
has been entrusted runs its day-to-day affairs on random pieces
of papers?
(34) The journey starting from cancellation of the written
test upto the decision to call all the candidates for interviews
was successfully treaded by the Chairman all by himself
without taking any Member of the Commission alongside. The
concept of collective wisdom of a multi-Member body was thus
completely detoured. The definite and conscious decision once
taken by the Commission has been systematically deviated
apparently to give safe passage to hundreds of candidates with
poor academic profile who could not have been otherwise shortlisted
but have now made to the final selection due to the
benevolence of highly inflated marks awarded to them in the
viva voce. We may now explain the reasons to draw this
inference.
LPA No.1555 of 2012 - 37 -
(35) As per the ‘selection criteria’ purportedly laid down
on 03.08.2008, there were 60 marks reserved for ‘Basic’ and
‘Essential’ qualifications (i.e. 30 each) which were to be
awarded on the basis of “0.30 of the percentage of marks
obtained”. There were 30 marks for viva voce to be awarded as
per “the knowledge of subject, communication skill, general
knowledge, general awareness and intelligence”.
(36) The plain analysis of the criteria unfolds that unless
a candidate has got 100% marks in the ‘basic qualifications’ and
‘essential qualifications’, he could not have secured 60 out of 60
marks allocated for Academic qualifications. On a random
scanning of the final Result-sheets, we find that there were
about 1496 candidates who got highest marks for Academic
qualifications ranging between 40 to 48.74 marks. Most of
these candidates have been awarded just 7 to 9 marks in the
viva voce. As against it, there are hundreds of selected
candidates who have been awarded 20 to 27 out of 30 marks in
the viva voce to ensure that they out-class the academicallybright
candidates. Such a mathematically accurate device
could not have been applied unless the marks of
academic/essential qualifications of the candidates were known
at the time of allocation of marks for viva voce. For example,
Roll No.005117 got 48.74 marks for Academic qualifications
LPA No.1555 of 2012 - 38 -
and only 7 marks in viva voce i.e. 55.74. Roll No.001451 got
29.74 marks for ‘Academic’ qualifications and 27 in viva voce
with a total of 56.74. There are ‘n’ number of such like
examples. It cannot be a mere co-incidence that 90% of the
meritorious candidates in Academics, performed so ‘poorly’ in
viva voce that they could not secure even 10 marks out of the 30
marks or that the brilliance got configurated only in the
average candidates possessing bare eligibility.
(37) Thus, even accepting the appellants’ plea that
‘selection criteria’ or ‘mode of selection’ can be altered midstream
to short-list the candidates with higher merit, here is a
case where the alterations have been designed with the sole
object of downgrading and not upgrading the standards of
selection to public employment.
Was the Chairman competent to take policy
decisions like ‘selection criteria’ or ‘mode of
selection’ ?
(38) It is an admitted fact that the Commission (earlier
known as ‘Subordinate Services Selection Board’) is a creation
of the Notification dated 28th January, 1970 issued under
proviso to Article 309 of the Constitution of India. The terms
and conditions of service of the Members and its functions find
mention in that Notification. Learned Single Judge has
referred to relevant clause(s) of the Notification to explain that
LPA No.1555 of 2012 - 39 -
the Board (now Commission) is a multi-Member body. Vide
subsequent Notification dated 28th July, 1998, the ‘Board’ was
re-named as ‘Commission’. Para 6(d) of the original Notification
was also substituted and the amended clause reads as follows:-
“(iv) in paragraph 6, for clause (d), the
following clause shall be substituted and
shall be deemed to have been substituted
with effect from 10th January, 2006, namely
:-
“(d) methods of recruitment and the
principles to be followed in making
appointments to the Group B, 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 sent to it by a
department or an 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 clause.”
(Emphasis applied)
(39) The Commission owes its existence to the
Notification dated 28.01.1970 as modified from time to time by
subsequent Notifications issued under proviso to Article 309 of
the Constitution. These Notifications are statutory in character
LPA No.1555 of 2012 - 40 -
and have not been superseded by any principal legislation.
Under these Notifications, no power exercisable by the
‘Commission’ can be delegated to its Chairman nor any
enabling provision to this effect has been pointed out. There is
no decision of the Commission also delegating its functions to
the Chairman.
(40) Since the decisions regarding ‘method of
recruitment’, ‘mode of selection’ and the ‘criteria for selection’,
are required to be taken by the ‘Commission’ alone, the
Chairman could not have usurped those powers and assumed
the role of ‘Commission’. The fact that instead of defending his
single-member decisions, the Chairman finally took shelter
behind the so-called decision of the ‘Commission’ dated
03.08.2008 before the learned Single Judge, also reinforces our
conclusion that the Chairman was incompetent to take one
decision after the other.
(41) It is unfortunate that instead of reversing his
unlawful decisions, taken by side-tracking eight other Members
(as it was a nine-Member body since 21.06.2007), the Chairman
involved those other Members in a mock-drill and flashed a
surprise on the learned Single Judge by producing the magical
‘single loose sheet’ of their purported decision dated 03.08.2008
laying down the ‘criteria for selection’.
LPA No.1555 of 2012 - 41 -
(42) We have also perused the decision dated 03.08.2008
produced in a sealed envelope. We firmly affirm the findings
returned by the learned Single Judge to discard the same. We
say so for the reasons that (i) various administrative decisions
whether taken by the Commission as a multi-Member body
(only one such decision found in the Files) or by the Chairman
contained in the Files produced before us, are preceded by an
‘Office Note’ or ‘proposal’ and are invariably forwarded by the
Secretary of the Commission; (ii) the original record of decisions
taken by the Chairman in the last week of September, 2008 or
in first week of October, 2008 do not even whisper about any
meeting of the Commission held on 03.08.2008 or the decision
taken therein; and (iii) the unusual manner in which the ‘loose
sheet’ has been prepared casts a serious doubt on its
genuineness. The so-called decision dated 03.08.2008 was thus
apparently contrived to defeat the cause of the writ-petitioners
and to mislead the learned Single Judge, who has rightly held
that it was only when he directed to produce the criteria of
selection that this ‘loose sheet’ “was prepared and produced in
Court”.
Ratification
(43) We may now deal with the plea of ‘ratification’
heavily banked upon by the appellants.
LPA No.1555 of 2012 - 42 -
(44) The expression “ratification” according to Black’s
Law Dictionary (Ninth Edition) means “confirmation and
acceptance of a previous act, thereby making the act valid from
the moment it was done…”. It has been further illustrated
saying that “this sense includes action taken by the legislature
to make binding a treaty negotiated by the executive”. The act of
‘ratification’ by the competent authority must acknowledge the
previous decision taken by a person who was otherwise
incompetent to take such decision, and thereafter it must
consciously approve such invalid decision. In Punjab
University vs. VN Tripathi, (2001) 8 SCC 179, the Registrar
of the University was not a stranger to the legal proceedings
rather Section 21 of the Punjab University Act, 1947 says that
he shall represent the University in all legal proceedings. The
Senate of the University vide Resolution dated 29.09.1991
expressly stated that “the action taken by the Registrar/Vice
Chancellor in cases where suits had already been filed or
appeals preferred by them stood ratified”.
(45) In Jugraj Singh & Anr. vs. Jaswant Singh &
Anr., (1970) 2 SCC 386, the second Power of Attorney
expressly stated that the first Power of Attorney was defective
and was being ratified. The illegality was thus cured from the
date it had taken place. In Parmeshwari Parsad Gupta’s
LPA No.1555 of 2012 - 43 -
case (supra), the Resolution passed by the Board of Directors of
the Company without notice to one of its Directors though was
found to be invalid but it was held that the decision taken vide
that Resolution could be ratified in a regularly constituted
meeting of the Board. The other decisions relied upon by the
appellants also reiterate that ratification can cure the defect
from the date it occurred.
(46) The above-noticed plea, in our considered view, is
not available in the instant case, for the reason that in its socalled
decision dated 03.08.2008, the Commission has neither
acknowledged any previous illegal decision of its Chairman
laying down the ‘selection criteria’ nor has it ratified such a
decision. The act of ratification has to acknowledge the previous
decision of an incompetent authority and then only can it be
ratified. What was insisted before the learned Single Judge
and reiterated before us is that it was the Commission, as a
multi-Member body, who laid down the ‘selection criteria’
which the Interview Committees followed. Had it been so,
where does the question of any ratification arise? We thus find
no merit in the unfounded contention.
Estoppel
(47) Adverting to the plea of estoppel pressed against the
writ-petitioners on the premise that they having participated in
LPA No.1555 of 2012 - 44 -
the selection process could not turn around and make wild
allegations against the functioning of the Commission. There
can indeed be no quarrel on the legal principles re-stated in
Om Parkash Shukla’s case (supra) and catena of other
decisions that the candidates who appeared in the examination
or participated in the selection process on being unsuccessful,
cannot be permitted to question the validity of examination or
of its selection criteria and they shall indeed be estopped by
their act or conduct from raising such issues.
(48) The afore-stated exposition of law, however, has no
bearing on the facts of the case in hand. The criteria which was
notified before the commencement of the selection process was
admittedly not followed and what has been followed was never
notified till the declaration of the final result. How the
unsuccessful candidates would come to know that the marks for
viva voce stood drastically changed to 30 out of 90 instead of 25
out of 225 till the result was declared?
(49) The selection criteria which saw the light of the day
along with declaration of the selection result could be assailed
by the unsuccessful candidates only after it was made public.
Non-observance of principles of natural justice
(50) This takes us to another contentious issue of alleged
denial of reasonable opportunity of hearing to selected
LPA No.1555 of 2012 - 45 -
candidates by the learned Single Judge. It goes without saying
that no order prejudicial to the interest of a person can be
passed by an administrative, quasi-judicial or judicial forum
without hearing such person. The principle of audi alteram
partem is neither a ritual to be essentially performed even if
not needed nor can it be an empty formality, if mandated. In
the instant case, though the selected candidates were unduly
large in number yet the writ petitioners impleaded them and
many of them were served even before 14.07.2011 whereas
learned Single Judge heard the arguments and reserved
judgement on 02.05.2012. Some of the selected candidates filed
their reply also as noticed by learned Single Judge. All of them
were duly served through a public notice published on
21.03.2012. They had thus ample opportunity to assist the
learned Single Judge on the legal issues on which the selection
has been faulted. The learned Single Judge has not commented
upon the merits, de-merits or eligibility of any selected
candidate for which counter-affidavit of such candidate could be
necessitated. The twin questions considered by the learned
Single Judge pertained to the competence of Chairman of the
Commission to lay down the criteria as well as the validity of
the selection criteria purportedly laid down by the Commission.
The assistance of selected candidates on both of these issues
LPA No.1555 of 2012 - 46 -
was supplementary and ancillary as the principal respondent
was the Commission. Yet the learned Single Judge gave
adequate opportunity to the selected candidates as well. The
plea that they have been condemned unheard is thus totally
baseless and contrary to record.
(51) Similarly, the half-hearted contention that no roving
enquiry could be made or that the learned Single Judge has
quashed the selection on the grounds never pleaded by the
writ-petitioners are also to be noticed and rejected. Once the
selection criteria disclosed on 11.04.2010 was expressly
challenged, the learned Single Judge in his endeavour to do
justice to the parties, was well within his jurisdictional
competence to summon the records and having found that the
functioning of a multi-Member body stood completely hijacked
by the Chairman, rightly annulled the ex facie arbitrary and
illegal selection.
(52) It is only a feeble attempt made by the appellants to
circumscribe the jurisdictional powers of the learned Single
Judge as a writ Court under Article 226 of the Constitution.
Suffice it to observe that a writ petition cannot be thrown out
only on the ground that the facts, not even in the knowledge of
a writ-petitioner and to which he had no access also, have not
been explicitly pleaded. Once the writ court, on perusal of the
LPA No.1555 of 2012 - 47 -
summoned record, is satisfied that the fundamental rights of a
petitioner have been violated, it is the bounden duty of the
Court to pass suitable order to protect such rights and/or to
compel the enforcement of the legal duty by the respondent(s).
(53) In all fairness and keeping in view the fact that
some of the writ petitioners have also preferred LPA Nos.1595,
1760, 1967, 2194 of 2012; and 303 of 2013 on the plea that the
learned Single Judge ought to have gone into the allegations
made against individual selected candidates, we called upon
the writ-petitioners to tabulate such allegations and supply the
same to the Commission as well as the selected candidates, who
in turn, have also given their respective response(s) to those
allegations. Learned counsel for the parties were heard in
support and against these allegations so that, if need be, the
same could be decided on merits. However, in view of our
findings on the legal issues, we do not deem it necessary to deal
with individual allegations but cannot refrain from observing
that the Commission and the State Government must observe
due care and caution in entertaining the applications or
accepting the qualifications relied upon by the applicants. Why
the Education Department was in such a great hurry or overly
anxious to give appointment to the selected candidates with
doubtful academic credentials, is beyond anyone’s
LPA No.1555 of 2012 - 48 -
comprehension. The proper and desired course would have
been to verify the genuineness of certificates and credentials
and then offer appointment.
(54) For the reasons afore-stated, we uphold the decision
of the learned Single Judge and consequently :-
(i) LPA Nos.1841 & 1903 of 2012 filed by the Haryana
Staff Selection Commission are dismissed with cost
of Rs.50,000/- each to be deposited with the High
Court Legal Services Committee within a period of
one month;
(ii) LPA No.1562, 1831 to 1839, 1842 to 1855, 1879 to
1902, 1904 to 1917, 1997, 2002, 2028 of 2012; 248 &
262 of 2013 jointly filed by the State of Haryana and
the Haryana Staff Selection Commission are
dismissed with cost of Rs.10,000/- in each case to be
deposited with the High Court Legal Services
Committee within one month;
(iii) LPA Nos.1555, 1557, 1592, 1594, 1856 to 1860, 1870
to 1878, 1918 to 1920, 1950 of 2012; 529 of 2013
filed by the selected candidates are dismissed with
cost of Rs.10,000/- each to be deposited in the High
Court Lawyer Welfare Fund within one month;
LPA No.1555 of 2012 - 49 -
(iv) LPA Nos.1595, 1760, 1967, 2194 of 2012; and 303 of
2013 filed by the writ-petitioners are disposed of in
the light of the observations made in para-53 of this
Court;
(55) Photostat copies of the four files containing original
notings and decisions taken by the Commission or its
Chairman from time to time, the decision dated 03.08.2008
have been retained and shall be kept as a part of the judicial
record. The original record be returned to the Commission
under receipt.
(56) Ordered accordingly. Dasti.
(Surya Kant)
Judge
30.09.2013
vishal shonkar
(Surinder Gupta )
Judge
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