Jyoti vs State Of Haryana And Others
2023 Latest Caselaw 186 P&H

        IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH

                                         LPA No.315 of 2021 (O&M)
                                         Reserved on : 19.12.2022
                                         Pronounced on : 06.01.2023
Jyoti

                                                            ... Appellant
                                   Versus

State of Haryana and others
                                                           ... Respondents

CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
        HON'BLE MS.JUSTICE HARPREET KAUR JEEWAN

Present:    Mr. H.S. Saini, Advocate for the appellant.

            Mr. Sharan Sethi, Addl. AG, Haryana.

            Mr. Sunil Hooda, Advocate for
            Mr. Samrat Malik, Advocate for respondent Nos.4 to 11, 13
            to 19, 21 to 28, 30 to 34, 36 to 40, 43 to 51, 53 to 65, 67, 69
            to 76.

            Mr. Jasbir Mor, Advocate for respondent No.20.

G.S. Sandhawalia, J.

Present Letters Patent Appeal has been filed by the

unsuccessful writ petitioner whose claim for quashing the selection list

for the post of Pharmacist dated 16.03.2013 (Annexure P-4) and for

quashing the selection and appointment of respondent Nos.4 to 76 was

repelled.

2. The reasoning given by the learned Single Judge was that the

result had been declared on 16.03.2013 and the petitioner had only

secured 42.94 marks, whereas the last candidate of the General Category

had secured 50.08 marks. Resultantly, by noticing that the petitioner had

participated in the selection process, she could not challenge the same in

view of the law laid down in CWP No.10141 of 2008 'Varun Vir Vs.

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UHBVNL and others' decided on 04.03.2010. It was also noticed that

CWP No.9852 of 2014 'Meenakshi Saini Vs. State of Haryana and

others' decided on 21.05.2014 (Annexure R-24/1) had also been

dismissed on the same grounds and the criteria adopted by the

Commission did not seem to be suffering from any infirmity.

3. The argument raised by Mr. Saini as such was that 65 posts

had been advertised for the General Category for the post of Pharmacist,

which was subsequently increased to 73 and there was no written test

prescribed and the appointment was to be done on the basis of prescribed

qualifications. The criteria had been fixed on 12.04.2010

(Annexure R-3/1), whereby 50 marks were given for the academic

qualification and the interview was to carry 25 marks. The argument

raised by the counsel was that 7 marks had been purposely awarded for

interview as per the information supplied on 03.05.2013 (Annexure P-6)

and only one candidate at Sr. No.38 namely Kavita had secured more

marks for academic qualifications i.e. 36.57 as per information supplied

on 20.10.2014 (Annexure P-10) and, thus, the grouse was that less marks

had been purposely awarded to ensure that the successful candidates were

given higher marks in the interview to make sure that they would make

the final cut.

4. It was, accordingly, contended and which has been

specifically averred in the writ petition that selected candidates belonged

to District Rohtak and Jhajjar, which was the constituency of the then

Chief Minister, Haryana and, therefore, it was arbitrary selection made in

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non-transparent manner by the respondent No.3-Haryana Staff Selection

Commission. Reliance was placed upon the judgment authored by one of

us i.e (G.S. Sandhawalia, J.) titled as Deepak Kumar Vs. State of

Haryana and others' 2017 (4) SCT 650 to submit that in similar

circumstances directions had been issued for appointment of the

petitioner against the post of Shift Attendant.

5. The said contention had also been noticed while issuing

notice of motion on 12.11.2021 and the State was directed to file an

affidavit as to whether all the vacancies had been filled up or not.

Necessary affidavit has been filed by Dr. Virender Kumar Bansal,

Director General Health Services-II, Haryana wherein it has been that the

Department had given appointment to all 73 candidates of General

Category. One candidate who was at Sr. No.3 namely Seema Sharma

daughter of Ishwar Singh did not join the duty and, therefore, her

appointment had been cancelled on 26.03.2014 and the appointment letter

had been issued to the first candidate in the wait list namely Rakesh

Kumar son of Om Parkarsh, who was at Sr. No.114.

6. A perusal of the writ petition would go on to show that the

petitioner firstly only challenged the appointment of respondent No.4 and

neither impleaded the members of the Selection Committee or levelled

any allegations of malafide and impleaded the relevant selected persons.

It was subsequently by virtue of an amendment made that the private

respondents No.4 to 75 were impleaded who were the other candidates

and the candidate namely Neetu, who was earlier at Sr. No.4 in the array

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of parties, was arrayed as respondent No.76.

7. We have also perused the select list (Annexure P-10) which

is the roll number wise list of the selected candidates of General

Category, where the break-up of academic marks and viva voce has been

shown. A perusal of the said list would go on to show that for viva voce

19 to 22 marks were given and the writ petitioner as noticed was one of

the few candidates who was also awarded less marks for interview which

is stated to be 7 marks as per the information supplied. The selected

candidates as such also have got marks ranging from 28.80 to 36.57

marks as per the academic qualifications and, thus, they have made the

cut and it is not that they got abysmal marks in the academic

qualifications as contended by the counsel. There was no specific

allegations of malafide as to why such persons were awarded less marks

or that some of the Board Members or Selection Committee were against

her and awarded less marks for the purpose to keep her out of the select

list.

8. Thus, in the absence of any such averments or allegations

made against the Members of the Selection Committee, we are of the

considered opinion that the argument which is raised is only an argument

of desperation and having participated in the selection process, she could

not turn around and say that the selection was bad in any manner.

Reliance can be placed upon the judgment of the Apex Court in Ramjit

Singh Kardam Vs. Sanjeev Kumar and others, 2020 (2) SCT 491,

wherein the issue of the selection for the post of Physical Training

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Instructor (PTI) was subject matter of consideration which was set aside

by this Court and was subject matter of consideration before the Apex

Court. Question No. (vi) was framed that whether without there being

any specific allegations of malafide against the Chairman and members of

the Commission and without them having been impleaded by name as

party respondents, challenge could be raised to the allocation of marks in

viva-voce. Resultantly, it was held that there were two well-known

concepts in law of "malice in fact" and "malice in law". It was,

accordingly, held that since an alteration of criteria had been made, which

obviously affected the merit selection, the allegations which had been

made against the Commission in conducting the selection are allegations

of malice in law and not malice in fact and, therefore, the selection which

was set aside was correct.

9. The allegations as such now made in the present case as

noticed are of malice in fact. Apparently, the criteria was never

challenged and in the absence of allegations of any malafide and by not

impleading the concerned persons nothing has come on record to show

that the Commission as such was prejudiced in favour of some persons to

select them. Reliance can also be placed upon the judgment passed in

Ratnagiri Gas and Power Private Limited Vs. RDS Projects Limited

and others, (2013) 1 SCC 524, wherein it was held that particulars

would have to be furnished to prove the malafides on the part of the

decision maker. It was also held that vague and general allegations

unsupported by the requisite particulars would not provide a sound basis

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for the Court to conduct an inquiry into their veracity. It is settled

principle that administrative action is presumed to be bonafide unless it is

to the contrary satisfactorily established. There is every presumption in

favour of the administration that the power had been exercised bonafide

and in good faith and allegations of such serious nature demands proof of

a high degree of credibility as it is a serious indictment of the institution

concerned.

10. Therefore, in the absence of the Members of the Commission

being personally impleaded and neither any allegations of malafide being

levelled against them, we are of the considered opinion that the argument

raised by counsel for the appellant does not cut much ice and is not

legally sustainable in view of the settled law. As noticed we have also

referred to the select list to show that the selected candidates had also got

marks between 28.80 to 36.57 marks for the academic qualifications and

the writ petitioner had also got 35.94 marks for the academic

qualifications. Merely because she had secured only 7 marks in the

interview does not mean that the Commission as such was biased with

any malafide purpose against her.

11. Reliance placed by the counsel for the appellant upon the

judgment passed in Deepak Kumar (supra) would be without any basis

since the record as such had been called in that case. It had then been

noticed that the majority of the candidates who had secured 35 marks had

been given less than 15 marks in the interview to ensure that they did not

make the final cut. A categorical finding was recorded that the argument

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which had been raised was in principal substantiated and that there was a

reasonable inference which could be drawn that there was favoritism,

which had been resorted to be the Selection Committee and the power

was misused for serving an unauthorized purpose. It was also noticed

that there were as many as 60 vacancies continuing and the petitioner

could be adjusted against the said vacancies and the benefit had been

granted.

12. In the present case as notice above, the record does not show

as such that against the marks awarded for academic qualifications

higher marks were given in interview rather the marks are varying

between 9 to 21 and, therefore, the range as such of the academic marks

is between 28.80 to 36.57. Resultantly, we do not see any ground which

is made out to interfere in the well reasoned order passed by the learned

Single Judge.

13. It is also a matter of record that the judgment relied upon by

the learned Single Judge in Meenakshi Saini (supra) is also pertaining

to same selection, wherein the petitioner had got 10 marks in the viva

voce and 34.14 marks in the academic qualifications. The learned Single

Judge had dismissed the writ petition on the ground that merely because

the petitioner had been granted lesser marks in the interview would not be

a ground for setting aside the selection since the criteria was not under

challenge. Mere apprehension on the part of the petitioner could not be a

ground for interference in the selection, in the absence of any allegation

of malafide and the same reasoning would apply here also.

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14. Accordingly, we are of the considered opinion that in view

of the affidavit filed by the respondents and in the absence of any vacant

post also at this stage no relief can be granted to the appellant after a

period of almost a decade since the date when the result was announced.

Resultantly, there is no merit in the present appeal and the same is

dismissed.

                                           (G.S. SANDHAWALIA)
                                                   JUDGE


                                          (HARPREET KAUR JEEWAN)
January 06, 2023                                  JUDGE
Naveen



             Whether speaking/reasoned:                    Yes
             Whether Reportable:                           Yes




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