Kiran Dubey vs State Of Chhattisgarh

The petitioner has filed the Writ Petition challenging the advertisement dated 22.03.2023 (Annexure P/1) issued for appointment on various posts under the Self Finance Scheme.

The brief facts as reflected from the records are that the respondent No. 2 is an open University constituted in pursuance of Pandit Sundar Lal Sharma Open University Act, 2004 (for short, “the Act, 2004”). Section 13 of the Act prescribed other officers and manner of appointment, emolument, power and duty of officers of the University. Section 20 of the Act provides constitution of Finance Committee and Section 25 of the Act provides that the University shall have a statute. The University in pursuance of the Act, 2004 has made various statutes.

Learned counsel for the petitioner would submit that the University has granted financial approval of the non-teaching posts in the University on 22.11.2022 and the Higher Education Department has also sanctioned various posts under the self finance scheme on 02.01.2003 (Annexure P/4). It has been further contended that the Registrar of the University has issued an amendment in ordinance No. 1 approving amendment as Part-H providing minimum qualification for non-teaching class-I & class-II posts. Thereafter, the Registrar of the University has issued notification on 20.01.2023 in alleged compliance of approval granted for Executive Council and added in column 11 to 15 (self financed post) providing non-teaching class-I & class-II posts though according to the University itself, the self finance creates a different set of cadre, and entire conduct of recruitment and condition of service, promotion are to be governed by separate rule to be made.

It has been further contended that the Under Secretary to His Excellency the Governor has approved the amendment made to Statute No. 11 by which the posts have been added vide its communication dated 24.01.2023. Thereafter, the University has acknowledged the same on 30.01.2023 and thereafter the Executive Council of the University has issued notification on 20.02.2023.

It is further contended that the petitioner has challenged the earlier advertisement by filing WPS No. 1378/2023 which was withdrawn in view of withdrawal of earlier advertisement on 16.01.2023. Learned counsel for the petitioner would submit that no rules have been framed for recruitment to the posts under self finance scheme as evident that on 07.03.2023, the respondent has constituted a committee for framing of the rules, therefore, in absence of any recruitment rule, the issuance of advertisement is without jurisdiction and would pray for quashing of Annexure P/1.

The University has filed its return raising objections about maintainability of the writ petition contending that the petitioner has not filed any documents to show that she is eligible for appointment on either of the posts nor she has applied for any of them. It is also not contended that the condition stipulated in the advertisement is onerous or adverse to any of her legal or fundamental rights of the petitioner for violation of which the instant Writ Petition is being filed.

Learned Counsel for the respondents would further submit that selection process cannot be vitiated or nullified on the ground that the separate service Rules governing the terms and conditions of employment on the advertised posts under Self Finance Scheme is not framed on the date of advertisement. In fact, the general service conditions, Rules for regular University employee is framed under statute No. 13 which will also govern the service conditions of all the employees till separate Rules have been framed as per statute No. 13. Therefore, it cannot be said that without any Rules selection process is being initiated. It is further submitted that it is not in dispute that there is no Rule fixing selection criteria for the advertised post has been provided in the advertisement, but, also the petitioner has not filed any complaint about violation of any Rule or regulation while framing the selection modalities. It is further submitted that the University formed a Committee of experts which prescribed the selection criteria on the basis of which the selection is to be made on the posts of Student Welfare Officer and Assistant Student Welfare Officer. The executive council approved the selection criteria fixed by the Committee of experts which is provided for suitable candidates. As per Clause 14 of the advertisement, the selection is to be made on the basis of interview. But, as it usually happens the number of candidates applied for a given number of posts is very high and, therefore, the shortlisting of the required number of candidates for interview is done through process of screening and written aptitude test. As a result of the said test the candidates securing higher marks will be shortlisted in the required ratio for interviewing the candidates. For the posts of SWO and ASWO 15-15 candidates are to be interviewed for single post. The Selection Committee after finalizing the process of selection will submit potential of three names to be placed before the Executive Committee who will select the name of successful candidates.

The respondents would further submit that the aptitude test to be conducted to evaluate natural capacity of an individual to perform certain task successful without previous knowledge or information the potential of a candidate is to be checked through the aptitude test for which there is no mandatory requirement. He would further submit that the submission made by the petitioner that weightage is given to the interview, is erroneous submission on facts. He would further submit that Clause 14 of the advertisement has not been challenged by the petitioner which provides for appointment through interview. Therefore, there is no illegality in adopting the procedure through interview. He would further submit that as per Clause 14 the appointment has to be made on the basis of interview and the Selection Committee has to decide to make the selection on the basis of interview while keeping in view the academic performance has allocated 50 per cent marks and 40 per cent marks for interview and 10 per cent for experience, therefore, it cannot be said that the procedure adopted by the respondent University suffers from the vice of arbitrariness. He would refer to the judgment of Hon'ble Supreme Court in the case of Anzar Ahmed vs. State of Bihar and others reported in 1994(1) SCC 150 and would pray for dismissal of the Writ Petition.

On the contrary, leaned Counsel for the petitioner would submit that 40 per cent marks criteria for interview has been made which is against the law laid down by the Hon'ble Supreme Court in the case of Ashok Kumar Yadav vs. State of Haryana, reported in 1985 (4) SCC 417 and would pray for quashing of the advertisement. He would refer to the judgment of the Hon'ble Supreme Court in the case of Munendra Kumar and others vs. Rajiv Govil and others reported in 1991 AIR 1607 wherein Honb'le Supreme Court has held that “In the result, we allow these appeals in part and quash the rule made by U.P. State Electricity Board keeping 40 marks for interview and 40 marks for group discussion being arbitrary. We direct that in future the marks for interview and group discussion shall not be kept exceeding 10% and 5% of the total marks, respectively. The selection already made by the Board for the post of Assistant Engineers (civil) shall not be disturbed. In the facts and circumstances of the case parties shall bear their own costs”.

Learned Counsel for the respondent would submit that the selection criteria has been prescribed by the executive council and after following the said procedure the selection would be made. He would further submit that the petitioner has not challenged Clause 14 of the advertisement which provides the appointment after interview and would refer to the Clause of the advertisement which reads as under:

I have heard learned counsel for the parties and perused the record.

Considering the above factual matrix, it is quite vivid that learned Counsel for the petitioner is making two fold submissions; one is without framing of the Rules the advertisement has been issued and unless and until the Rules are provided the appointment procedure initiated by the respondents is bad-in-law and secondly he would submit that maximum 40 per cent marks have been given to interview which is against the law laid down by the Hon'ble Supreme Court in the case of Ashok Kumar Yadav (supra), as such the whole selection process is bad-in-law.

Learned counsel for respondents No. 2 and 3 would submit that as per statute already mentioned in the return that Rules prevailing to the regular employee will be applicable unless and until the Rules are made, therefore, the contention raised by the petitioner is incorrect submission on facts. He would further submit that 40 per cent marks have been given to the interview which is also permissible as per law laid down by the Hon'ble Supreme Court in the case of D.V. Bakshi and others vs. Union of India and others reported in 1993 (3) SCC 663, Bishnu Biswas vs. Union of India reported in 2014 (5) SCC 774.

Considering the submissions made by learned counsel for the parties it is not in dispute that no recruitment Rules (on Self Finance Scheme) have been framed by the University for appointment of the employees under Self Finance Scheme, but the statute No. 13 has been amended so as to rectify the advertisement which provided that Rules framed by the University with regard to other employees will be applicable unless and until the separate Rules are made. Therefore, the contention made by the petitioner that without framing the Rule selection process has been initiated, is illegal and deserves to be rejected. Accordingly, it is rejected.

Now, the contention made by the learned counsel for the petitioner that exaggerated marks for interview has been given which speaks about arbitrariness, malafide and favourtism, is being examined by this Court. The learned counsel for the petitioner would submit that this action of the respondent is against the law laid down by the Hon'ble Supreme Court in the case of Ashok Kumar Yadav and others vs. State of Haryana and others reported in 1985 (4) SCC 417) wherein the Hon'ble Supreme Court has held in paragraph 20 as under:

“We do not think we can agree with this conclusion reached by the Division Bench. But whilst disagreeing with the conclusion, we must admit that the Haryana Public Service Commission was not right in calling for interview all the 1300 and odd candidates who secure 45 per cent or more marks in the written examination. The respondents sought to justify the action of the Haryana Public Service Commission by relying on Regulation 3 of the Regulations contained in Appendix 1 of the Punjab Civil Service (Executive Branch) Rules 1930 which were applicable in the State of Haryana and contended that on a true interpretation of that Regulation, the Haryana Public Service Commission was bound to call for interview all the candidates who secured a minimum of 45 per cent marks in the aggregate at the written examination. We do not think this contention is well founded. A plain reading of Regulation 3 will show that it is wholly unjustified. We have already referred to Regulation 3 in an earlier part of the judgment and we need not reproduce it again. It is clear on a plain natural construction of Regulation 3 that what it prescribes is merely a minimum qualification for eligibility to appear at the viva voce test. Every candidate to be eligible for appearing at the viva voce test must obtain at least 45 per cent marks in the aggregate in the written examination. But obtaining of minimum 45 per cent marks does not by itself entitle a candidate to insist that he should be called for the viva voce test. There is no obligation on the Haryana Public Service Commission to call for the viva test all candidates who satisfy the minimum eligibility requirement. It is open to the Haryana Public Service Commission to say that out of the candidates who satisfy the eligibility critarion of minimum 45 per cent marks in the written examination, only a limited number of candidates at the top of the list shall be called for interview. And this has necessarily to be done because otherwise the viva voce test would reduced to a farce. It is indeed difficult to see how a viva voce test for properly and satisfactorily measuring the personality of a candidate can be carried out, if over 1300 candidates are to be interviewed for recruitment to a service. If a viva voce test is to be carried out in a thorough and scientific manner, as it must be in order to arrive at a fair and satisfactory evaluation of the personality of a candidates, the interview must take anything between 10 to 30 minutes. In fact, Herman Finer in his book on "Theory and Practice of Modern Government" points out that "the interview should last at least half an hour". The Union Public Service Commission making selections for the Indian Administrative Service also interviews a candidate for almost half an hour. Only 11 to 12 candidates are called for interview in a day of 51/2 hours. It is obvious that in the circumstances, it would be impossible to carry out a satisfactory viva voce test if such a large unmanageable number of over 1300 candidates are to be interviewer. The interviews would then tend to be casual, superficial and sloppy and the assessment made at such interviews would not correctly reflect the true measure of the personality of the candidate. Moreover, such a course would widen the area of arbitrariness, for even a candidate who is very much lower down in the list on the basis of marks obtained in the written examination, can, to borrow an expression used by the Division Bench, 'gate-crash' into the range of selection, if he is awarded unduly high marks at the viva voce examination. It has therefore always been the practice of the Union Public Service Commission to call for interview, candidates representing not more than twice or thrice the number of available vacancies. Kothari Committee's Report on the 'Recruitment Policy and Selection Methods for the Civil Services Examination' also points out, after an indepth examination of the question as to what should be the number of candidates to be called for interview :

"The number of candidates to be called for interview, in order of the total marks in written papers, should not exceed, we think, twice the number of vacancies to be filled.. ." Otherwise the written examination which is definitely more objective in its assessment than the viva voce test will lose all meaning and credibility and the viva voce test which is to some extent subjective and discretionary in its evaluation will become the decisive factor in the process of selection. We are therefore of the view that where there is a composite test consisting of a written examination followed by a viva voce test, the number of candidates to be called for interview in order of the marks obtained in the written examination, should not exceed twice or at the highest, thrice the number of vacancies to be filled. The Haryana Public Service Commission in the present case called for interview all candidates numbering over 1300 who satisfied the minimum eligibility requirement by securing a minimum of 45 per cent marks in the written examination and this was certainly not right, but we may point out that in doing so the Haryana Public Service Commission could not be said to be actuated by any malafide or oblique motive, because it was common ground between the parties that this was the practice which was being consistently followed by the Haryana Public Service Commission over the years and what was done in this case was nothing exceptional. The only question is whether this had any invalidating effect on the selections made by the Haryana Public Service Commission”

Refuting the said submission, learned counsel for the University would submit that no straight jacket formula for awarding of marks in interview can be fixed by the Court. It is dependable on the nature of the posts and vacancies available. The learned counsel for the respondent would draw attention of this Court towards judgment rendered by the Honb'le Supreme Court in the matter of Mehmood Alam Tariq and others vs. State of Rajasthan and others reported in 1988 (3) SCC 241 wherein it has been held in para 20 as under:

“20. On a careful consideration of the matter, we are persuaded to the view that the prescription of minimum qualifying marks of 60 (33%) out of the maximum marks of 180 set apart for the viva-voce examination does not, by itself, incur any constitutional infirmity. The principles laid down in the cases of Ajay Hasia, Lila Dhar, Ashok Kumar Yadav, do not militate against or render impermissible such a prescription. There is nothing unreasonable or arbitrary in the stipulation that officers to be selected for higher services and who are, with the passage of time, expected to man increasingly responsible position in the core services such as the Administrative Services and the Police Services should be men endowed with personality traits conducive to the levels of performance expected in such services. There are features that, distinguish, for instance, Accounts Service from the Police Service-a distinction that draws upon and is accentuated by the personal qualities of the officer. Academic excellence is one thing. Ability to deal with the public with tact and imagination is another. Both are necessary for an officer. **Administrative and Police Services constitute the cutting edge of the administrative machinery and the requirement of higher traits of personality is not an unreasonable expectation”.

The Hon'ble Supreme Court in the matter of Bishnu Biswas vs. Union of India reported in 2014 (5) SCC 774 has examined the allegation with regard to grant of weightage of marks for interview and has held that no straight jacket formula can be followed. The Hon'ble Supreme Court has held in paragraphs 16,17 and 18 which reads as under:

“16. The appropriate allocation of marks for interview, where selection is to be made by written test as well as by interview, would depend upon the nature of post and no straight- jacket formula can be laid down. Further there is a distinction while considering the case of employment and of admission for an academic course. The courts have repeatedly emphasized that for the purpose of admission in an education institution, the allocation of interview marks would not be very high but for the purpose of employment, allocation of marks for interview would depend upon the nature of post.

In Mehmood Alam Tariq & Ors. v. State of Rajasthan & Ors., AIR 1988 SC 1451, this Court had upheld fixation of 33% marks as minimum qualifying marks for viva test. In State of U.P. v. Rafiquddin & Ors., AIR 1988 SC 162, this Court upheld the fixation of 35% marks as minimum qualifying marks in the viva test for selection for the recruitment to the post of a judicial magistrate. In Anzar Ahmad v. State of Bihar & Ors., AIR 1994 SC 141, allocation of 50% marks for viva test and 50% marks for academic performance was upheld by this Court while considering the appointment of Unani Medical Officer observing that court must examine as to whether allocation of such higher percentage may tend to arbitrariness.

18.In Jasvinder Singh & Ors. v. State of J&K & Ors., (2003) 2 SCC 132, this Court upheld the allocation of 20% marks for viva test as against 80% marks for written test for selection to the post of Sub- Inspector of Police. However, the Court cautioned observing that the awarding of higher percentage of marks to those who got lower marks in written test in comparison to some who had got higher marks in written examination, an adverse inference from certain number of such instances can be drawn. However, in absence of any allegation of mala fides against the Selection Committee or any Member thereof, a negligible few such instances, would not justify the inference that there was a conscious effort to bring some candidates within the selection zone”.

Considering the aforesaid factual matrix and also considering the submission that 50 per cent marks have been given for academic performance and 40 per cent marks for interview and 10 per cent marks for experience, proper distribution of marks have been given, due weightage has also been given to experience and academic performance which comes to 60 per cent and 40 per cent marks cannot be said to be unjust enrichment or to favour someone. Also considering the law laid down by the Hon'ble Supreme Court in the case of Bishnu Biswas (supra) wherein the Hon'ble Supreme Court has held that allotment of marks on written test as well as interview would depend upon the nature of posts and no straight jacket formula can be laid down. Since there is no allegation of mala fide against the criteria fixed by the Committee brought on record as such it cannot be said that the criteria adopted by the University is illegal or suffers from arbitrariness or favourtism as it has to be applied universally to all the candidates who will be participated in the selection process.

Accordingly, the writ petition being devoid of merit deserves to be and is accordingly dismissed.

Pending interlocutory applications if any, stand disposed of.