Punjab-Haryana High Court
Manish Kumar vs Union Ofindia And Ors on 8 April, 2024
Neutral Citation No:=2024:PHHC:047069
CWP-8865-2021 -1- 2024:PHHC:047069
CWP-10521-2021
CWP-10582-2021
114, 115 and 116
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP-8865-2021
Date of decision: 08.04.2024
MANISH KUMAR ....PETITIONER
Vs.
UNION OF INDIA AND OTHERS ...RESPONDENTS
CWP-10521-2021
VIKASH KUMAR ....PETITIONER
Vs.
UNION OF INDIA AND OTHERS ...RESPONDENTS
CWP-10582-2021
ANAND ....PETITIONER
Vs.
UNION OF INDIA AND OTHERS ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr. G.S. Brar, Advocate
for the petitioner(s)
Mr. S.K. Sharma, Senior Panel Counsel
for the respondents-Union of India
(in CWP-10521-2021 and CWP-8865-2021)
Mr. Arihant Goyal, Central Government Counsel
for the respondent-Union of India (in CWP-10582-2021)
****
JAGMOHAN BANSAL, J (ORAL)
1. By this common order CWP-8865-2021, CWP-10521-2021 and
CWP-10582-2021 are being disposed of since issues involved in all the petitions
and prayer sought are common. With the consent of parties and for the sake of
brevity, facts are borrowed from CWP-8865-2021.
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2. The petitioner through instant petition under Articles 226/227 of the
Constitution of India is seeking:
(i) setting aside result dated 25.02.2021 (Annexure P-4).
(ii) direction to respondents to consider the claim of the
petitioner for Practical (Skill) Test.
3. The petitioner, pursuant to an advertisement by respondent-ITBP applied
for the post of Constable (Driver). He cleared Physical Efficiency Test (for short
'PET') and Physical Standard Test (for short 'PST').
4. On 19.01.2020, he appeared for written test and qualified the same.
He secured 79 marks, out of 100. He was further subjected to qualifying
Practical (Skill) Test on 25.02.2021. He secured 10.5 out of 50 marks whereas
minimum qualifying marks were 16.5. The respondent rejected candidature of
the petitioner on the ground that he has failed to secure minimum qualifying
marks in the Practical (Skill) Test. Thus, he could not be considered for the post
of Driver.
5. Mr. G.S. Brar, Advocate submits that petitioner cleared PET, PST
and written test. He secured 79 marks out of 100 marks which are more than
marks of last selected candidate, thus, he should be considered for the post of
driver.
6. Per contra, Mr. S.K. Sharma, Senior Panel Counsel submits that the
post advertised was of driver and skill test was indispensable. Post of driver is a
post of a skilled workman. The petitioner(s) could not secure minimum
qualifying marks in the skill test, thus, they could not be considered, despite
being in merit list.
7. I have heard the arguments of learned counsel for the parties and
perused the record.
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8. Mr. G.S. Brar, Advocate does not dispute the fact that respondent
had prescribed qualifying marks for Skill Test and petitioners had undergone
said test.
9. It is prerogative of the Recruitment Agency to prescribe qualifying
marks. If qualifying marks are prescribed, no candidate after participating in the
selection process can claim that he should be considered for the post, despite not
securing qualifying marks.
10. The petitioners consciously participated in the selection process and
after having been declared unsuccessful, they are now disputing the criteria of
qualifying marks.
11. A two Judge Bench of Apex Court in Tajvir Singh Sodhi and
Others v. State of Jammu and Kashmir and Others 2023 SCC OnLine SC 344
has held that candidates, having taken part in the selection process without any
demur or protest, cannot challenge the same after having been declared
unsuccessful. The candidates cannot approbate and reprobate at the same time. A
candidate cannot allege that selection process was unfair or there was some
lacuna in the process just because selection process was not palatable to a
candidate. The relevant extracts of the judgment read as:
"67. Thus, Courts while exercising the power of judicial review
cannot step into the shoes of the Selection Committee or assume an
appellate role to examine whether the marks awarded by the
Selection Committee in the viva-voce are excessive and not
corresponding to their performance in such test. The assessment
and evaluation of the performance of candidates appearing before
the Selection Committee/Interview Board should be best left to the
members of the committee. In light of the position that a Court
cannot sit in appeal against the decision taken pursuant to a
reasonably sound selection process, the following grounds raised by
the writ petitioners, which are based on an attack of subjective
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criteria employed by the selection board/interview panel in
assessing the suitability of candidates, namely, (i) that the
candidates who had done their post-graduation had been awarded
10 marks and in the viva-voce, such PG candidates had been
granted either 18 marks or 20 marks out of 20. (ii) that although the
writ petitioners had performed exceptionally well in the interview,
the authorities had acted in an arbitrary manner while carrying out
the selection process, would not hold any water.
68. The next aspect of the matter which requires consideration is
the contention of the writ petitioners to the effect that the entire
selection process was vitiated as the eligibility criteria enshrined in
the Advertisement Notice dated 5th May, 2008 was recast vide a
corrigendum dated 12th June, 2009, without any justifiable reason.
In order to consider this contention, regard may be had to the
following case law:
i) In Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC
576, this Court authoritatively declared that having
participated in a selection process without any protest, it
would not be open to an unsuccessful candidate to challenge
the selection criteria subsequently.
ii) In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC
309, an advertisement was issued inviting applications for
appointment for the post of physiotherapist. Candidates who
failed to clear the written test presented a writ petition and
prayed for quashing the advertisement and the process of
selection. They pleaded that the advertisement and the test
were ultra vires the provisions of the Uttar Pradesh Medical
Health and Family Welfare Department Physiotherapist and
Occupational Therapist Service Rules, 1998. After referring
to a catena of judgments on the principle of waiver and
estoppel, this Court did not entertain the challenge for the
reason that the same would not be maintainable after
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participation in the selection process. The pertinent
observations of this Court are as under:
"24. In view of the propositions laid down in the above
noted judgments, it must be held that by having taken
part in the process of selection with full knowledge that
the recruitment was being made under the General
Rules, the respondents had waived their right to
question the advertisement or the methodology
adopted by the Board for making selection and the
learned Single Judge and the Division Bench of the
High Court committed grave error by entertaining the
grievance made by the respondents."
iii) Similarly, in Ashok Kumar v. State of Bihar, (2017) 4 SCC
357, a process was initiated for promotion to Class-III posts
from amongst Class-IV employees of a civil court. In the said
case, the selection was to be made on the basis of a written
test and interview, for which 85% and 15% marks were
earmarked respectively as per norms. Out of 27 (twenty-
seven) candidates who appeared in the written examination,
14 (fourteen) qualified. They were interviewed. The
committee selected candidates on the basis of merit and
prepared a list. The High Court declined to approve the
Select List on the ground that the ratio of full marks for the
written examination and the interview ought to have been 90
: 10 and 45 ought to be the qualifying marks in the written
examination. A fresh process followed comprising of a
written examination (full marks - 90 and qualifying marks -
45) and an interview (carrying 10 marks). On the basis of the
performance of the candidates, results were declared and 6
(six) persons were appointed on Class-III posts. It was
thereafter that the appellants along with 4 (four) other
unsuccessful candidates filed a writ petition before the High
Court challenging the order of the High Court on the
administrative side declining to approve the initial Select
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List. The primary ground was that the appointment process
was vitiated, since under the relevant rules, the written test
was required to carry 85 marks and the interview 15 marks.
This Court dismissed the appeals on the grounds that the
appellants were clearly put on notice when the fresh selection
process took place that the written examination would carry
90 marks and the interview 10 marks. The Court was of the
view that the appellants having participated in the selection
process without objection and subsequently found to be not
successful, a challenge to the process at their instance was
precluded. The relevant observations are as under:
"13. The law on the subject has been crystalized in
several decisions of this Court. In Chandra Prakash
Tiwari v. Shakuntala Shukla, this Court laid down the
principle that when a candidate appears at an
examination without objection and is subsequently
found to be not successful, a challenge to the process is
precluded. The question of entertaining a petition
challenging an examination would not arise where a
candidate has appeared and participated. He or she
cannot subsequently turn around and contend that the
process was unfair or that there was a lacuna therein,
merely because the result is not palatable. In Union of
India v. S. Vinodh Kumar, (2007) 8 SCC 100, this
Court held that:"18. It is also well settled that those
candidates who had taken part in the selection process
knowing fully well the procedure laid down therein
were not entitled to question the same (See
also Munindra Kumar v. Rajiv Govil, (1991) 3 SCC
368 and Rashmi Mishra v. M.P. Public Service
Commission, (2006) 12 SCC 724)".
12. A three Judge Bench of Hon'ble Apex Court in Dr. Kavita Kamboj
Versus High Court of Punjab and Haryana and Others, 2024 SCC OnLine SC
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254, while dealing with challenge to selection criteria prescribed by the High
Court has held that qualifying marks for interview may be prescribed by
recruitment board. In this case, High Court prescribed qualifying marks for viva
voce. The candidates after participating in the selection process assailed
prescription of qualifying marks. The Supreme Court while dismissing claim of
unsuccessful candidates has held:
"43. In Taniya Malik v. Registrar General of the High Court of
Delhi, the petitioners challenged the prescription of minimum cut-
off marks for the viva voce during the selection process of the Delhi
Judicial Service Examination 2015. A two-Judge Bench of this
Court declined to accept the challenge of the petitioners on the
ground that "it is desirable to have the interview and it is necessary
to prescribe minimum passing marks for the same when the
appointment in the higher judiciary to the post of District Judge is
involved." The court further observed that the interview is the best
method of judging "the performance, overall personality and the
actual working knowledge and capacity to perform otherwise the
standard of judiciary is likely to be compromised."
44. In the present case, the High Court has come to the conclusion
that apart from seeking proficiency in the substantive knowledge of
law, based on the written test, in-service judicial officers must
possess communication and other skills which would emerge in the
course of an interview. We must be mindful of the fact that the
interview in such cases is not being held at the very threshold of the
service, while making recruitments at the junior-most level. Rather,
the interview is being held to fill up a senior position in the District
Judiciary, that of an Additional District and Sessions Judge. Such
officers, based on their prior experience, must be expected to
demonstrate a proficiency in judicial work borne from their long
years of service. The purpose of the interview for officers in that
class is to assess the officer in terms of the ability to meet the duties
required for performing the role of an Additional District and
Sessions Judge. Consequently, there would be a reasonable and
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valid basis, if the High Court were to do so, to impose a
requirement of a minimum eligibility or cut-off both in the written
test and in the viva voce separately.
Xxx xxx xxx xxx
65. In numerous decisions, this Court has emphasized the
importance of the control which is wielded by the High Courts over
the District Judiciary. Undoubtedly, it is equally well-settled that
when the Rules under Article 309 hold the field, these Rules have to
be implemented. Where specific provisions are made in the Rules
framed under Article 309, it would not be open to the High Court to
issue administrative directions either in the form of the Full Court
Resolution or otherwise, that are at inconsistent with the mandate
of the Rules. On the other hand, in cases such as the one at hand,
where the Rules were silent, it is open to the High Court to issue a
Full Court Resolution. The High Court did so initially on 29
January 2013, but modified the Resolution on 30 November 2021
by prescribing that candidates for appointment to the Higher
Judicial Service should have a minimum of 50% both in the written
test as well as in the viva voce independently. The wisdom of the
prescription is clear. A candidate should not just demonstrate the
ability to reproduce their knowledge by answering questions in the
suitability test, but must also demonstrate both practical knowledge
and the application of the substantive law in the course of the
interview. The Rules being silent, it was clearly open to the High
Court to prescribe such a criterion as it did in 2013, when the 50%
cutoff was prescribed on aggregate scores and also, in 2021, when
the 50% cutoff was prescribed on the written test scores and the
viva voce separately."
[Emphasis Supplied]
13. In the case in hand, the petitioners participated in the selection
process. They could not achieve qualifying marks in skill test. Their case is
squarely covered by afore-cited judgments of Supreme Court in Tajvir Singh
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Sodhi (Supra) and Dr. Kavita Kamboj (Supra). All the petitions deserve to be
dismissed and accordingly dismissed.
08.04.2024 [JAGMOHAN BANSAL]
manoj JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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